How Many Peremptory Challenges Are Allowed in Texas?

Texas allows between three and fifteen peremptory challenges per side in a jury trial, with the exact number set by the type of case and the court hearing it. Capital cases where the state seeks the death penalty give each side fifteen. Non-capital felonies allow ten. Misdemeanors allow three or five depending on the court. Civil cases allow three or six per party. The rules come from Article 35.15 of the Texas Code of Criminal Procedure for criminal trials and Rule 233 of the Texas Rules of Civil Procedure for civil trials.¹²

Criminal Cases by Severity

Capital Felony

When the state seeks the death penalty, Article 35.15(a) gives the prosecution and the defense fifteen peremptory challenges each.¹

If two or more defendants are tried together on a capital charge, the numbers change. The state receives eight challenges per defendant, and each defendant individually gets eight rather than fifteen.¹

If a capital charge is filed but the state does not seek death, the case is treated as a non-capital felony for strike-counting purposes, and each side drops to ten.

Non-Capital Felony

For felonies tried in district court without the death penalty on the table, Article 35.15(b) allows ten peremptory challenges per side.¹ This is the count that governs most felony trials in Texas.

Misdemeanor

Article 35.15(c) sets misdemeanor strikes based on the court. A misdemeanor tried in district court gives each side five peremptory challenges. A misdemeanor tried in county court or county court at law gives each side three.¹ Misdemeanor juries have six members rather than twelve, so the smaller number of strikes tracks the smaller panel.

Extra Strikes for Alternate Jurors

When the court seats alternate jurors, each side gets additional peremptory challenges reserved for the alternates. Article 35.15(d) allows one extra challenge per side when one or two alternates are being selected, and two extra challenges when three or four alternates are needed.³ These extra strikes can be used only against alternates, and your regular strikes cannot be used against alternates.

Civil Cases

Rule 233 of the Texas Rules of Civil Procedure gives each party six peremptory challenges in district court and three in county court.² Civil juries in Texas typically have twelve members in district court and six in county court.

Rule 233 speaks in terms of “party,” but the allocation ultimately runs by “side.” A side is defined as one or more litigants who share common interests on the issues the jury will decide, not simply everyone listed as a plaintiff or everyone listed as a defendant.²

Multiple Parties and Motions to Equalize

Before peremptory challenges are exercised in a civil case, the trial judge determines whether litigants aligned on the same side actually have antagonistic interests. Any party can file a motion to equalize, asking the court to adjust the number of challenges so that no side gains an unfair advantage. The judge weighs the interests at stake and allocates challenges accordingly.²

In criminal cases with multiple defendants, Article 35.15 handles capital allocations directly through the eight-per-defendant rule described above. For non-capital felonies and misdemeanors, each defendant receives the standard number of challenges, and the court retains discretion to adjust when co-defendants are running conflicting defenses.

Limits on How Strikes Can Be Used

Peremptory challenges are discretionary but not unchecked. In Batson v. Kentucky, the U.S. Supreme Court held that prosecutors cannot use peremptory strikes to remove jurors based on race.⁴ Edmonson v. Leesville Concrete Co. extended that prohibition to civil cases.⁵ In J.E.B. v. Alabama, the Court held that gender-based strikes are equally unconstitutional.⁶

When one side suspects the other of striking jurors on a prohibited basis, they raise a Batson challenge. The process runs in three steps:

The challenging party makes a prima facie showing that the strike was motivated by discrimination, such as a pattern of removing jurors of a particular race.
The attorney who made the strike offers a race-neutral or gender-neutral explanation.
The judge rules on whether the explanation is genuine or a pretext.

If the judge finds the strike discriminatory, remedies range from reseating the improperly removed juror to dismissing the entire panel. Texas appellate courts have reversed convictions where trial courts failed to properly evaluate Batson challenges.

How Peremptory Challenges Differ From Challenges for Cause

A challenge for cause requires a specific legal reason: the juror is biased, related to a party, served on the grand jury that issued the indictment, has a relevant felony conviction, or cannot follow the law as the judge will instruct it. Texas lists more than a dozen grounds in Article 35.16 of the Code of Criminal Procedure, and there is no cap on the number of for-cause challenges either side can raise.⁷ For-cause challenges require the judge’s approval. Peremptory challenges do not require a stated reason, subject to the Batson limits.

How Strikes Are Submitted in the Courtroom

After voir dire ends and the judge rules on all challenges for cause, each side exercises its peremptory strikes by marking names on a written list. In criminal cases, Article 35.26 directs both sides to deliver their strike lists to the clerk, who then calls out the first twelve names (in district court) or six names (in county court) that were not stricken. Those called become the jury.⁸

Civil trials follow essentially the same process under Rule 234 of the Texas Rules of Civil Procedure. Each side strikes names, returns the list to the clerk, and the clerk calls the first twelve remaining names to serve.⁹ Both sides strike simultaneously from the same master list, so neither knows which jurors the other targeted until the final panel is announced.

Federal Court Numbers Are Different

If your case is in federal court rather than a Texas state court, the counts change. Under Rule 24 of the Federal Rules of Criminal Procedure, federal capital cases allow twenty peremptory challenges per side. Non-capital felonies give the defense ten and the prosecution six. Federal misdemeanor trials allow three per side.¹⁰

Federal civil cases allow three peremptory challenges per party under 28 U.S.C. § 1870, which is half of what a Texas district court provides. The federal statute also gives judges discretion to allow additional challenges when multiple plaintiffs or defendants are involved.¹¹

1
State of Texas. Texas Code of Criminal Procedure Article 35.15 – Number of Challenges
2
South Texas College of Law. Texas Rules of Civil Procedure Rule 233 – Number of Peremptory Challenges
3
State of Texas. Texas Code of Criminal Procedure CRIM P Art 35.15 – Number of Challenges
4
Justia U.S. Supreme Court Center. Batson v. Kentucky, 476 U.S. 79 (1986)
5
Justia U.S. Supreme Court Center. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991)
6
Legal Information Institute. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)
7
United States Courts. Participate in the Judicial Process – Rule of Law
8
State of Texas. Texas Code of Criminal Procedure Article 35.26 – Lists of Challenges
9
Texas Courts. Texas Rules of Civil Procedure Rule 234 – Lists Returned to the Clerk
10
Legal Information Institute. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors
11
Office of the Law Revision Counsel. 28 USC 1870 – Challenges