Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF J.M.B. AND T.A.D.B., CHILDREN
Appeal from the 15th Judicial District Court Grayson County,
Texas Trial Court Cause No. FA-15-0407
Justices Lang, Myers, and Evans.
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,  reverse the termination of
Mother's parental rights, and we remand the cause for
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
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).
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.
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
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
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).
TO JURY TRIAL
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.
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.
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