U.S. Supreme Court
Pitchford v. Cain
No. 24-7351 5/28/26
Issue:
Was a capital murder defendant entitled to a reversal when the trial judge skipped over the third step of a Batson jury selection inquiry and assured the defendant he had preserved his Batson complaint?
Holding:
Yes. When a defendant makes an objection that the State has used peremptory challenges based on race, under Batson v. Kentucky, the trial judge must go through a three-stage inquiry: 1) The defendant must make a prima facie showing that the strikes were based on race; 2) the trial judge must ask the prosecutor for race-neutral reasons for each strike; and 3) the trial judge must give the defense an opportunity to rebut the prosecutor’s race-neutral reasons as pretextual. In this case, the prosecutor struck four of five black jurors from the panel, and the defense objected. For stage two, the trial judge declared the prosecutor’s reasons for the strikes to be race-neutral, but it did not give the defense a chance to rebut the stated reasons for the strikes and did not make any findings under stage three regarding whether the prosecutor’s reasons were pretextual. The defense again raised the Batson issue at the end of jury selection, and the trial court cut off defense counsel. The Mississippi Supreme Court found that the defendant had waived his Batson complaint. The 5–4 Supreme Court, however, reversed and remanded, ruling that the Mississippi Supreme Court had unreasonably evaluated the requirements of Batson’s three-step test in determining that the defendant waived his opportunity to rebut the asserted race-neutral reasons for the peremptory strikes. “The bottom line: The State’s argument—that [the defendant] preserved his Batson objection but nonetheless somehow waived his Batson pretext argument—does not make much sense and is not a reasonable reading of this record.” Read opinion.
Dissent (Gorsuch, J., joined by Thomas, Alito, and Barrett, JJ.):
The dissent would hold that the defendant had not met the requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA) to seek federal habeas relief because he had not preserved his Batson complaint. “Put simply, Mr. Pitchford’s account of a muzzled defense team is hard to square with the record. But even if it were a plausible account, that still would not be enough. Under §2254(d)(2), a federal habeas petitioner must show not only that his version of events is plausible. He must [also] show that the record ‘compel[s]’ it. Rice v. Collins, 546 U. S. 333, 341 (2006). And no matter how generously one interprets the record in this case, that is a standard Mr. Pitchford cannot meet.”
Commentary:
This case reaffirms that a defendant must make a Batson objection at trial to be able to raise the Batson claim on appeal. The majority also makes clear that, when the defense has made a Batson objection, he need not keep objecting throughout the process. The trial judge and the prosecutors are duty-bound to follow the now well-settled, three-stage Batson steps. Odds are that this decision does not break any new ground in what procedures trial judges and prosecutors are following when the defense has made a Batson objection. But if these procedures are not being followed, this decision is an important reminder regarding the three stages that must be followed when the defense makes a Batson objection.
Texas Supreme Court
In the Interest of H.S., B.S., and M.S.
No. 24-0307 6/5/26
Issue:
Can the Department of Family and Protective Services (DFPS) implicitly or explicitly order one parent to divorce another parent to avoid termination of parental rights?
Holding:
No. In this case, the trial court ordered termination of both the mother and father’s parental rights. In the course of the termination proceeding, DFPS workers discussed with the mother the harm of staying with the father, who had committed acts prohibited by the Family Code. The Court noted that “as the department acknowledged during oral argument, this Court’s precedent forecloses the department from demanding that Mother (or any parent) choose between divorcing her husband [and] losing her children (citation omitted). But the department’s arguments come perilously close to that line. They may well have crossed it at trial, and it appears that a major reason the court of appeals affirmed the best-interest determination as to Mother was that she had not permanently left Father and divorced him.”
To terminate parental rights, the State must show clear and convincing proof both that: 1) a parent committed an act prohibited by Family Code §161.001(b)(1), and 2) termination is in the child’s best interest. The Court found that DFPS had not given the mother clear directives, she was close to completing all the required training and tasks on her service plan, the trial court had refused to retain jurisdiction and extend the case, and the children were “on a dangerous trajectory. For all these reasons, we conclude that a reasonable trier of fact could not have formed a firm belief or conviction that terminating Mother’s parental rights was in the children’s best interest.” Read opinion.
Dissent (Lehrmann, J., joined by Bland and Huddle, JJ.):
The dissent would find that termination of both parents’ parental rights was in the children’s best interest. “No one, including Mother, disputes that Father’s conduct created a dangerous environment for the children. The harder question is the degree of responsibility Mother bears for allowing her children to remain around Father in that dangerous environment.” Read dissent.
Commentary:
The facts of this case make clear that the children’s mother was a victim of the father from a very young age. She was not a victim in the sense that her children were, but she was a victim of violence nonetheless. In the criminal context, prosecutors might recognize her nature as a victim, but might also still consider whether the mother was guilty of a crime by omission. In the context of termination of parental rights, however, the analysis is different. In this very lengthy opinion, the majority ultimately lands on the premise that a non-culpable mother cannot be led to divorce or separate from the culpable father as the foundation for the Department not terminating her parental rights. On page 26 of the majority opinion, after stating that leading a mother to divorce was not an option, the majority stated that the mother still had a duty to protect her children “and that may sometimes even leave her with little option but to see her husband only when the children are not present.” That is quite a fine line that many parents might find hard to navigate realistically. On pages 31-32 of its opinion, the majority leaves open the possibility that the Department might have other options in this case in the future.
In the Interest of K.N., K.L., K.L., and K.L.,
No. 24-0881 6/5/26
Issue:
Does the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, found at Family Code §152.204) implicate a Texas court’s subject-matter jurisdiction over children in a suit affecting the parent-child relationship if the children were not present in Texas on the date a protective order for their return was issued?
Holding:
No. “Section 152.204 does not implicate subject-matter jurisdiction. And because the parents did not present this challenge below, it is forfeited.” The Court concluded that the UCCJEA “operates to ‘prioritize’ the jurisdiction of a child’s ‘home state’ over competing jurisdictional claims from the courts of other States (citation omitted). That contextual background strongly suggests the statute does not constrain the court’s ‘authority to adjudicate the type of controversy involved in the action,’ … but instead addresses where the suit should be litigated.” The Court also declined to address whether Tex. Const. Art. I, §37, passed by voters in 2025 (which states in part that “a parent has the responsibility to nurture and protect the parent’s child and the corresponding fundamental right to exercise care, custody, and control of the parent’s child, including the right to make decisions concerning the child’s upbringing) affects this issue, other than to say that “we do not believe that our decision today, driven by the unique facts of this particular record, conflicts with Section 37.” The majority concluded that the mother’s parental rights could be terminated based upon sufficient evidence, but that the evidence was not sufficient to support the termination of the father’s parental rights. Read opinion.
Concurrence (Blacklock, C.J.):
In discussing the abuse the children in this case suffered, the Chief Justice wrote: “It is not enough—not nearly enough—for a judge or jury to conclude, based on their personal opinions about disciplining children, that a parent’s methods were excessive. The evolving sensibilities of modern judges and juries about appropriate disciplinary methods must not be permitted to encroach on the fundamental right of Texas parents to discipline their children as they see fit. This fundamental right is not evolving. It was fixed in place in the Nineteenth Century under societal norms highly deferential to parental authority, and it was recently reaffirmed by a constitutional amendment designed to ‘enshrine truths that are deeply rooted in this nation’s history and traditions.’ Tex. Const. Art. I, § 37. … In this case, I agree with the Court that the jury heard clear and convincing evidence that Mother’s harsh, even vicious, treatment of her daughter was the product of malice and a desire to harm, rather than of genuine parental care and concern.” Read concurrence.
Dissent (Bland, J., joined by Lehrmann and Huddle, JJ.):
The dissent would affirm the court of appeals’ judgment that the evidence was also legally sufficient to support termination of Father’s rights on endangerment grounds. Read dissent.
Commentary:
In this case, the parents—both of whom were subject to parental termination rulings—did not raise at trial the contention that the court did not have jurisdiction because the children were not in Texas when a protective order was issued. (The children were not in Texas because the parents had ignored a court order and fled with the children to Louisiana). The majority opinion in this case holds that the statute upon which the parents relied—but did not raise at trial—did not implicate subject matter jurisdiction. The statute may have dealt with a jurisdictional question, but it did not deal with subject matter jurisdiction. The majority admits that the question is complicated, and a careful reading of pages 11-14 of the majority opinion reveals the majority’s analysis in concluding that the statute did not implicate subject matter jurisdiction and, therefore, could not be raised for the first time on appeal.
In the Interest of C.S. Jr. and Z.S., Children
No. 25-0008 6/5/26
Issue:
Did the trial court lose jurisdiction over a parental-termination case for failure to grant an extension before the automatic dismissal date set out in Family Code §263.401(a)?
Holding:
Yes. While the trial judge expressed an intention to grant an extension, it did not sign and enter an extension. The Court concluded that even if the judge’s oral expression of intent could have constituted granting an extension, §263.401(a) requires an extension to be made in writing or before a court reporter consistent with Family Code §101.026. Because the case was not extended, it was automatically dismissed by operation of law. “Prompt resolution of parental-termination proceedings is so imperative a principle that our legislature has taken the extraordinary step of divesting trial courts of jurisdiction over cases that do not proceed to trial within a year. See In re G.X.H., 627 S.W.3d 288, 292 (Tex. 2021). Strong cases, weak cases, easy cases, hard cases—every case is subject to this jurisdictional mandate. Further underscoring the legislature’s seriousness of purpose, the statute does not direct courts to dismiss cases but makes dismissal automatic, without any judicial action at all.” Because the case was not effectively extended, it was automatically dismissed by operation of law, leaving the trial court and court of appeals without jurisdiction to consider termination of the mother’s parental rights. Read opinion.
Dissent (Lehrmann, J., joined by Bland and Huddle, JJ., and Busby, J. to Part II):
The deadline in Family Code §263.401 “serves the laudable goal of bringing these heartbreaking cases to a swift conclusion. But the initial dismissal date is not absolute; the statute recognizes that extraordinary circumstances may warrant a limited extension of that date, and the statute accordingly authorizes trial courts to retain their jurisdiction by granting such an extension before the initial deadline has passed. The trial court in this case did just that: it granted an extension of the initial dismissal date before the date passed, and it did so on the record.” Read dissent.
Commentary:
This decision is based upon the language of §263.401(a), and the majority concluded that the trial judge failed to abide by the recognized March 11 deadline with an oral pronouncement. Based upon the dissenting opinion, there is certainly some disagreement upon the finality of the statute’s terms. Nevertheless, trial judges will need to recognize this statutory deadline as hard and fast.
In re S.H.
No. 26-0030 6/5/26
Issue:
Did the trial judge incorrectly remove chosen counsel from a mother facing parallel criminal and parental-termination proceedings?
Holding:
Yes. An attorney from the county’s public defender’s office represented the mother in the criminal proceedings and offered to represent her in the civil termination proceedings. The trial judge had appointed an attorney ad litem to represent the mother in the termination proceedings, but the mother filed a motion to substitute the public defender as her counsel for the termination case. The trial court refused, and the mother filed a petition for writ of mandamus. The Supreme Court concluded that Code of Criminal Procedure Art. 26.044 does not prohibit a public defender’s office from representing the mother in the civil termination case, and the trial court did not have authority to remove the public defender because the mother is entitled to counsel of her choice. “We are aware of no legal impediment to the Office’s authority to represent [the mother]. Nor is the [Public Defender’s] Office subject to the district court’s authority or oversight in its retention of clients—or, more precisely, the Office is subject to the very same authority that a court always has over all lawyers appearing before it, regardless of a party’s indigence or wealth. Court-appointed counsel remains an important protection that many parents will desperately need, including parents who may start with outside counsel but eventually need the court’s assistance in securing counsel capable of representing them in difficult and draining parental-termination proceedings.” The Court conditionally granted the mother’s petition for writ of mandamus and directed the trial judge to vacate its order removing the public defender as the mother’s attorney. Read opinion.
Commentary:
In the criminal context, it is extremely difficult to sever the relationship between a criminal defendant and his chosen attorney (whether appointed or not). This per curiam decision draws from that criminal jurisprudence and holds that it is similarly difficult to terminate the relationship between a parent and her chosen attorney. That is true even if the chosen attorney is the local appointed criminal public defender. The court found no impediment in the public-defender portion of the statute in the Code of Criminal Procedure that deals with the appointment of counsel in criminal cases. The court likewise found no impediment in the local rules for the particular county (Harris County). Courts should always be wary of attempting to disqualify a client’s chosen attorney.
Texas Attorney General Opinions
No. KP-0520 6/10/26
Issue:
Is an amusement machine considered a gambling device under the Texas Penal Code when the machine offers both chance-based and skill-based game modes?
Conclusion:
Yes. An amusement machine that offers both a chance-based game mode as well as a skill-based mode is a gambling device under Penal Code Chapter 47 so long as chance plays any role in determining whether the player receives something of value, regardless of the presence of skill. Read opinion.
Requested by:
Sen. Bob Hall, Chair of the Senate Committee on Administration
Commentary:
The Attorney General concluded that under Penal Code §47.01(4), “a gambling device need not rely entirely—or even primarily—on chance. So long as chance plays any role in determining whether the player obtains something of value, the device satisfies the statutory definition,” citing State v. Gambling Device, 859 S.W.2d 519 (Tex. App. — Houston [1stDist.] 1993, writ denied). However, the opinion does not cite or recognize a recent conflicting opinion from the Texarkana Court of Appeals ruling that the same “Follow Me” games on Pace-O-Matic machines mentioned in the AG opinion are not considered gambling devices under §47.01 because the game is determined by skill and not chance. State v. 5 Gambling Machines, No. 06-24-00011-CV (Tex. App. — Texarkana, April 30, 2025, no pet.). (Read summary of 5 Gambling Machines here.) While this conflict between the AG and the court of appeals opinion may cause a quandry for law enforcement and prosecutors, remember that Attorney General opinions are not binding on the courts and that the opinion itself notes that it “cannot determine through the opinion process whether any specific machine qualifies as a gambling device, because that determination is a highly fact dependent inquiry. See Tex. Att’y Gen. Op. No. KP-0425 (2023).”