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In re J.M.B.

Court of Appeals of Texas, Fifth District, Dallas

April 27, 2017

IN THE INTEREST OF J.M.B. AND T.A.D.B., CHILDREN

         On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. FA-15-0407

          Before Justices Lang, Myers, and Evans.

          MEMORANDUM OPINION

          LANA MYERS JUSTICE.

         The children's mother ("Mother") appeals the trial court's judgment terminating the parent-child relationship between her and her two children. Mother brings one issue on appeal contending the trial court erred by denying her a jury trial when she had filed a written demand for a jury trial more than thirty days before the final hearing. We conclude the trial court committed reversible error by denying Mother's timely request for a jury trial. We affirm the trial court's termination of the father's parental rights, [1] reverse the termination of Mother's parental rights, and we remand the cause for further proceedings.

         BACKGROUND

         Rule of Civil Procedure 216 provides that there shall not be a jury trial in a civil case unless a party makes a written request for a jury trial within a reasonable time before the non-jury trial setting and at least thirty days before the trial setting. Tex.R.Civ.P. 216(a); see also Tex. Const. art. 5, § 10 ("[N]o jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.").

         The State filed its original petition for termination of Mother's parental rights on March 30, 2015. The State's suit was subject to the Family Code's one-year dismissal date under section 263.401 which required dismissal of the suit if trial was not commenced on or before, March 30, 2016. The trial court granted a six-month extension of the statutory dismissal date, which moved the dismissal date to September 30, 2016. See Tex. Fam. Code Ann. § 263.401 (West Supp. 2016).

         Mother filed a written request for a jury trial on February 10, 2016. At a permanency-review hearing on March 23, 2016, attended by Mother and her attorney, the trial court informed the parties that the case was set for a final trial on August 31, 2016. The trial court saw Mother's request for a jury trial in the file. Mother's attorney told the court she might withdraw the request but that she needed to consult with Mother first. The court then said the trial date was for a bench trial, it was "just fine" if Mother wanted a jury trial, but Mother should tell the court "pretty soon" if she wanted a jury trial. Neither Mother nor her attorney informed the trial court before the day of trial whether they intended to insist on a jury trial or whether they preferred a nonjury trial.

         On the day of trial, Mother's attorney told the trial court she wanted to withdraw from representing Mother because Mother wanted new counsel, and the attorney requested a continuance of the trial. The trial court denied the requests for withdrawal and for continuance because of the pending dismissal date. Mother's attorney then stated that if the court would not let her withdraw, then she wanted a re-setting of the case for a jury trial. The trial court denied that request, stating there was not time to schedule a jury trial before the dismissal date. The case was then tried to the court without a jury. At the end of the trial, the court rendered judgment terminating Mother's parental rights.

         In the order terminating Mother's parental rights, the trial court stated, "At the final hearing on August 31, 2016, Respondent Mother requested a jury trial which was denied by the Court as untimely." The trial court also stated in the order that the court found by clear and convincing evidence that Mother committed actions authorizing termination under section 161.001(b)(1)(D), (E), (F), and (O)[2] of the Family Code, and that termination of the parent child relationship between her and the children was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2016).

         RIGHT TO JURY TRIAL

         In her sole issue on appeal, Mother contends the trial court erred by denying her request for a jury trial. "The right to jury trial is one of our most precious rights, holding 'a sacred place in English and American history.'" Gen. Motors Corp. v. Gayle, 951 S.W.3d 469, 476 (Tex. 1997) (orig. proceeding) (quoting White v. White, 196 S.W. 508, 512 (Tex. 1917)). The Texas Constitution guarantees the right to trial by jury. See Tex. Const. art. I, § 15. Likewise, the Family Code authorizes jury trials in most situations, including termination of the parent-child relationship. See Tex. Fam. Code Ann. § 105.002 (West 2014). We review a trial court's denial of a jury demand for an abuse of discretion. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). We examine the entire record and reverse only if the trial court's decision is arbitrary, unreasonable, or without reference to guiding principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)).

         To be entitled to a jury trial, Mother had to make a written request for a jury within a reasonable time and either pay the jury fee or file an affidavit of inability to pay the fee. See Tex. R. Civ. P. 216, 217. A jury request filed thirty or more days before the trial setting is presumed reasonable. Halsell v. Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991) (per curiam). The adverse party may rebut that presumption by showing that the granting of a jury trial would operate to injure the adverse party, disrupt the court's docket, or impede the ordinary handling of the court's business. Id.

         In this case, Mother filed her request for a jury trial on February 10, 2016, 203 days before the August 31 trial setting. Mother had already filed an affidavit of indigency, so her right to a jury trial was perfected. The trial court, however, did not move the case from the nonjury-trial docket to the jury-trial docket. Instead, the trial court left the case on the nonjury-trial docket and required Mother to make a second jury-trial demand. This procedure was not authorized by rule or statute. Rule of Civil Procedure 217 states that when a party requests a jury trial and the party has filed an affidavit of indigency, "the court shall then order the clerk to enter the suit on the jury docket." Tex.R.Civ.P. 217. Absent a waiver by Mother of her right to a ...


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