                                  NO. 12-14-00006-CV

                          IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

IN RE: AARON VAUGHAN                             §

AND LACY VAUGHAN,                                §       ORIGINAL PROCEEDING

RELATORS                                         §

                                  MEMORANDUM OPINION
        In this original mandamus proceeding, Relators Aaron and Lacy Vaughan challenge the
trial court‟s denial of a jury trial. They request a writ of mandamus directing the trial court to
reverse its December 19, 2013 order setting aside their jury trial demand in a suit seeking
termination of their parental rights to four children. The respondent is the Honorable Carole W.
Clark, Judge of the 321st Judicial District Court, Smith County, Texas. The real parties in
interest are Karen and Daniel Vaughan and Kristin and Michael Broyles. We conditionally grant
the petition.


                                          BACKGROUND
        Aaron and Lacy are the parents of four children who were removed from their care by the
Department of Family and Protective Services (the Department). On August 24, 2012, the
Department filed a petition for protection of the children, for conservatorship, and for
termination in a suit affecting the parent-child relationship. That same day, the trial court signed
an emergency order naming the Department as temporary sole managing conservator of the
children. On February 21, 2013, Lacy filed an affidavit of indigence. The trial court signed an
order finding that Lacy “has filed an affidavit of indigence in accordance with rule 145(b) of the
Texas Rules of Civil Procedure” and appointing Jarrod Heath to represent her in the proceedings.
On May 16, 2013, Lacy filed a written request for a jury trial that stated she
       has previously filed her Affidavit of Indigency, which was approved by this Court. Therefore,
       pursuant to Rule 145 of the Texas Rules of Civil Procedure, she does not tender herewith the
       $30.00 jury fee customarily assessed by the District Clerk of Smith County, Texas.


       On August 15, 2013, the trial court signed an order retaining the suit on the court‟s
docket and set the case “for pre-trial on January 8, 2014” and “trial on January 14, 2014.” On
September 20, 2013, the trial court approved Lacy‟s motion for substitution of counsel,
discharged her court appointed attorney, and substituted Peter Milne as her attorney of record.
       On December 19, 2013, the trial court conducted a hearing and announced as follows:


       There has been a request for a jury trial, and there has been a certified copy of a Bill of Cost
       submitted that does not show a jury fee paid.

       The parents have been found not indigent, as I remember from the off-the-record discussion, in
       either June or August, which is plenty of time to rectify that.

       Now, having said that, I‟m going to back up, because the Court‟s schedule is such that the Court
       was looking at changing the jury trial to March, because of the Court‟s scheduling so soon after
       the new year.

       ....

       But if the Court goes as a nonjury, we can start on the 14th. We don‟t have to—we can break it
       up, as you cannot break up a case with a jury.

       So what I‟m finding on the record is that this jury trial would significantly interfere with the
       Court‟s docket because the Court was already looking at changing the docket. It would delay the
       trial until March because of the Court‟s schedule.


       Lacy‟s trial counsel objected to the court‟s ruling and stated that he “believe[d] that the
nonpayment of a jury fee was a mistake.” He requested the court to “grant these parents all
possible due process.” Counsel further argued that the trial court‟s previous finding of Lacy‟s
indigency permitted her not to pay the $30.00 jury fee upon requesting a jury trial. Aaron‟s trial
counsel also objected to the removal of the case from the jury docket, stating, “[I]t‟s my client‟s
position that the jury fee‟s being waived is still valid, and we—we certainly request that the jury
trial proceed on as previously requested.” The trial court denied counsels‟ requests to proceed to
a jury trial. On December 20, 2013, Lacy‟s trial counsel paid a jury fee of $30.00 to the Smith
County District Clerk.




                                                      2
                                 AVAILABILITY OF MANDAMUS
       Under previous law, special circumstances were required for the denial of a jury trial to
merit mandamus review because it was considered that there was an adequate remedy by appeal.
See Gen. Motors Corp v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997) (orig. proceeding); In re
Alaniz, No. 13-13-00291-CV, 2013 WL 3895360, at *1 (Tex. App.—Corpus Christi July 23,
2013, orig. proceeding) (mem. op.). But now, the denial of trial by jury is reviewable by
mandamus. Id.; In re Reiter, 404 S.W.3d 607, 611 (Tex. App.—Houston [1st Dist.] 2010, orig.
proceeding) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 139 (Tex. 2004) (orig.
proceeding)).
       Mandamus will issue only to correct a clear abuse of discretion for which the relator has
no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.
2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.
proceeding). A trial court has no discretion in determining what the law is or in applying the law
to the facts, and a clear failure to analyze or apply the law correctly constitutes an abuse of
discretion. Id. at 840; see also In re Cauley, No. 12-14-00028-CV, 2014 WL 3615786, at *2
(Tex. App.—Tyler July 23, 2014, orig. proceeding) (mem. op.) (not yet released for publication).
       In cases involving child custody, “justice demands a speedy resolution,” and “appeal is
frequently inadequate to protect the rights of parents and children.” In re T.R.B., 350 S.W.3d
227, 231 (Tex. App.—San Antonio, orig. proceeding) (quoting In re Tex. Dep’t of Family &
Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006)). We apply this same rationale to suits
seeking to terminate the parent-child relationship because the termination of that relationship
embodies fundamental constitutional rights. See Vela v. Marywood, 17 S.W.3d 750, 759 (Tex.
App.—Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001). Because a termination
action “permanently sunders” the bonds between a parent and child, the proceedings must be
“strictly scrutinized.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966
S.W.2d 174, 179 (Tex. App.—El Paso 1998, no pet.).


                                     DENIAL OF JURY TRIAL
       “The right to jury trial is one of our most precious rights, holding „a sacred place in
English and American history.‟” Gayle, 951 S.W.2d at 476 (quoting White v. White, 196 S.W.
508, 512 (Tex. 1917)). The Texas Constitution guarantees an individual‟s right to a jury trial, and



                                                3
the family code permits a trial by jury upon request in suits seeking termination of the parent-
child relationship. See TEX. CONST. art. I, § 15; TEX. FAM. CODE ANN. § 105.002(a), (b) (West
2014). Pursuant to Rule 216 of the rules of civil procedure, a party must make a written request
for a jury trial and pay the jury fee at least thirty days before the date trial is set on the nonjury
docket. See TEX. R. CIV. P. 216. If a party who is unable to afford the deposit for the jury fee
files an affidavit to that effect within the time for making the deposit, the court “shall” order the
clerk to enter the suit on the jury docket. TEX. R. CIV. P. 217; see also In re J.N.F., 116 S.W.3d
426, 431-32 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (holding that prison inmate was
entitled to jury trial in action to terminate parental rights where he requested jury trial in original
answer and filed declaration of inability to pay costs).
        A trial court does not abuse its discretion by denying a jury trial when there is no timely
request. Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985). However, a trial court abuses its
discretion by dispensing with a jury trial that has been properly demanded without the assent of
the party who demanded it. See Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex.
1968) (“[N]either the judge nor the opposite party have the authority to dispense with a jury
without the assent of the party originally demanding it.”); see also Citizens State Bank of Sealy,
Tex. v. Caney Inv., 746 S.W.2d 477, 478-79 (Tex. 1988) (“egregious error” in denying perfected
right to trial by jury).
Discussion
        No party challenged Lacy‟s affidavit of indigence or the trial court‟s appointment of
counsel based on her affidavit. The trial court appointed counsel on February 21, 2013. At the
time Lacy filed her jury demand, she was represented by appointed counsel and her inability to
pay the jury fee was conclusive as a matter of law because the trial court‟s approval of Lacy‟s
affidavit of indigency was unchallenged. See Equitable Gen. Ins. Co. of Tex. v. Yates, 684
S.W.2d 669, 671 (Tex. 1984) (“An uncontested affidavit of inability to pay is conclusive as a
matter of law.”). Because Rule 217 waives the jury fee deposit upon a party‟s oath of inability to
pay, Lacy perfected her jury trial demand on May 16, 2013—the date she filed her written jury
request and asserted her indigence. See TEX. R. CIV. P. 216, 217; see also Hosey v. County of
Victoria, 832 S.W.2d 701, 705 (Tex. App.—Corpus Christi 1992, no pet.) (plaintiff entitled to
jury trial when he made written request in original petition and filed uncontested affidavit of
inability to pay costs).



                                                  4
         Regardless of whether Lacy‟s appointed counsel was substituted for retained counsel, the
trial court did not have the authority to deny Lacy‟s jury request because it was perfected well in
advance of trial and Lacy objected to the trial court‟s placement of the case on the nonjury trial
docket. See Green, 422 S.W.2d at 725; Caney Inv., 746 S.W.2d at 478-79. There is no rule that
a change in financial circumstances renders a previously indigent party‟s perfected jury demand
invalid. Therefore, the trial court abused its discretion by denying Lacy‟s request for a jury trial.
See Walker, 827 S.W.2d at 840; Green, 422 S.W.2d at 725.


                                                    DISPOSITION
         For the reasons set forth above, we have concluded that the trial court abused its
discretion in setting this case on the nonjury trial docket. Accordingly, we conditionally grant
Relators‟ petition for writ of mandamus and direct the trial court to set aside its order denying
relator‟s request for jury trial. We trust that the trial court will promptly comply with this
opinion and order. The writ will issue only if the trial court fails to do so within ten days after
the date of the opinion and order. The trial court shall furnish this court, within the time for
compliance with this court‟s opinion and order, a certified copy of its order evidencing
compliance.

                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered September 17, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



                                                           5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                        SEPTEMBER 17, 2014


                                          NO. 12-14-00006-CV


                        AARON VAUGHAN AND LACY VAUGHAN,
                                      Relators
                                         V.
                              HON. CAROLE W. CLARK,
                                     Respondent
                                        ORIGINAL PROCEEDING
                        ON THIS DAY came to be heard the petition for writ of mandamus filed
by AARON VAUGHAN AND LACY VAUGHAN, who are the relators in Cause No. 12-
2355-D, pending on the docket of the 321st District Court of Smith County, Texas. Said petition
for writ of mandamus having been filed herein on January 7, 2014, and the same having been
duly considered, because it is the opinion of this Court that the petition is meritorious, it is
therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of
mandamus be, and the same is, conditionally granted.
                        And because it is further the opinion of this Court that the trial judge will
act promptly and issue an order vacating its order denying Aaron and Lacy Vaughan‟s request
for jury trial, the writ will not issue unless the Honorable Carole W. Clark, Judge of the 321st
District Court of Smith County, Texas, fails to do so within ten (10) days from the date of this
order.
                        It is further ORDERED that DANIEL AND KAREN VAUGHAN AND
MICHAEL AND KRISTIN BROYLES pay all costs incurred by reason of this proceeding.
                     Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith J., and Hoyle, J.
