      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00299-CV



                                         In re Linda Pool


                      ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                             MEMORANDUM OPINION


               In this original proceeding, Relator Linda Pool seeks a writ of mandamus to compel

Respondent Honorable Eric Shepperd, presiding judge of County Court at Law Number Two of

Travis County, to vacate the order denying Pool her requested jury trial in an appeal from the Austin

Municipal Court of Record’s dangerous dog determination and to grant her request for a jury trial.

See generally Tex. Health & Safety Code §§ 822.041–.047. We conditionally grant the writ.


                                         BACKGROUND

               The relevant facts to this original proceeding are undisputed. On July 7, 2017, Pool

was walking her son’s dog Pepper, while Mark Hoffman was jogging. Hoffman alleges that Pepper

attacked him, and he reported the incident to the Austin/Travis County Animal Services. See id.

§§ 822.0421(a) (providing that if person reports dangerous dog incident, animal control authority

may investigate incident); .041(2) (defining “dangerous dog” to include dog that commits outside

of enclosure unprovoked acts that cause person to reasonably believe dog will attack and cause

bodily injury to that person).
                An independent hearing officer conducted a hearing, where Pool and Hoffman

submitted sworn testimony and written evidence, and then entered an order determining that Pepper

“is a dangerous dog as defined under Section 822.041(2) of the Texas Health and Safety Code based

upon any acts committed on July 7, 2017.” See id. § 822.0421(a) (permitting animal control

authority to make dangerous dog determination after receiving sworn statements of witnesses). The

order also provided that the dog’s owner “may appeal the determination of the animal control

authority to the City of Austin Municipal Court,” which Pool did. See id. § 822.0421(b) (providing

that dog owner may appeal animal control authority’s dangerous dog determination to “justice,

county, or municipal court of competent jurisdiction”). Following a hearing—but not a jury

trial—the judge of the municipal court entered an order, finding “that the determination of dangerous

dog is proper” and that the “determination that Pepper is a dangerous dog stands.”

                Pool filed a notice of appeal to the county court and requested a jury trial de novo.

See id. §§ 822.0421(d) (“An owner may appeal the decision of the justice or municipal court in the

manner described by Section 822.0424.”), .0424(a) (“A party to an appeal under Section 822.0421(d)

. . . may appeal the decision . . . and is entitled to a jury trial on request.”). In response, the State of

Texas filed a Motion to Determine Nature of Appeal and for Scheduling Order, arguing that although

section 822.0424(a) provides for a jury trial on request when a party appeals from a justice court or

from some municipal courts, when a court is a municipal court of record—as the City of Austin

Municipal Court is, see Tex. Gov’t Code § 30.00731—the Texas Government Code prohibits a trial

de novo. See id. § 30.00014(b) (“An appeal from the municipal court of record may not be by trial

de novo.”). The county court, agreeing with the State, entered an order concluding:



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        the language in Tex. Health & Safety Code § 822.041, “a party to an appeal . . . is
        entitled to a jury trial on request,” clarifies which types of trial are available to
        appellants already entitled to a trial de novo under Tex. Code Crim. Proc. art 44.17
        and Tex. Gov’t Code § 30.00014. Since those provisions prohibit trials de novo in
        appeals from municipal courts of record, like this case, Appellant is entitled only to
        a review for errors reflected in the Austin Municipal Court record and not to a
        jury trial.


Pool filed in this Court a petition for writ of mandamus and an emergency motion to stay. We

granted the stay and requested a response from the State, which we have since received.


                                    STANDARD OF REVIEW

                We may issue mandamus to correct a clear abuse of discretion for which the relator

has no adequate appellate remedy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (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 applying the law to the facts,” and

“a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of

discretion, and may result in appellate reversal by extraordinary writ.” Walker, 827 S.W.2d at 840.

The Texas Supreme Court has noted that the denial of a trial by jury is reviewable on appeal and by

mandamus. Prudential, 148 S.W.3d at 140 (noting denial of jury trial can be reviewed by ordinary

appeal or by mandamus). To determine whether an appellate remedy is “adequate,” we inquire into

whether “any benefits to mandamus review are outweighed by the detriments.” Id. at 136. Further,

an appeal is an inadequate remedy when a party stands to lose a substantial right. See Walker,

827 S.W.2d at 842 (citing Iley v. Hughes, 311 S.W.2d 648, 652 (Tex. 1958) (orig. proceeding)).




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                                           DISCUSSION

Abuse of Discretion

                In questions of statutory interpretation, we first look to the language of the text.

Gonzalez v. Guilbot, 315 S.W.3d 533, 540 (Tex. 2010). “Where text is clear, text is determinative.”

Colorado Cty. v. Staff, 510 S.W.3d 435, 444 (Tex. 2017) (quoting Entergy Gulf States, Inc.

v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)).

                The statutory text at issue provides:       “[a] party to an appeal under Section

822.0421(d) . . . may appeal the decision . . . and is entitled to a jury trial on request.” Tex. Health

& Safety Code § 822.0424(a). It is undisputed that Pool is “[a] party to an appeal under Section

822.0421(d),” “may appeal the decision,” and timely requested a jury trial. Pool therefore asserts

that section 822.0424 “clearly affords Pool a jury trial.” We agree.

                The State argues that Pool is not entitled to a jury trial because “[a]n appeal from the

municipal court of record may not be by trial de novo.” Tex. Gov’t Code § 30.00014(b). The State

claims that “these two statutes can both be given meaning that is not in conflict with one another by

construing section 822.0424(a) to permit a jury trial when the dog owner appeals a judgment of a

justice court or a non-record municipal court, but not when the dog owner appeals the judgment of

a municipal court of record.” However, we find no basis in section 822.0424(a)’s text to make

this distinction.

                Nevertheless, we do find a way of harmonizing these two statutes that remains faithful

to the statutory text, although the parties do not address this construction. As relevant here, section

30.00014 provides:



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        (a) A defendant has the right of appeal from a judgment or conviction in a municipal
        court of record. The state has the right to appeal as provided by Article 44.01, Code
        of Criminal Procedure. . . .

        (b) The appellate court shall determine each appeal from a municipal court of record
        conviction and each appeal from the state on the basis of the errors that are set forth
        in the appellant’s motion for new trial and that are presented in the clerk’s record and
        reporter’s record prepared from the proceedings leading to the conviction or appeal.
        An appeal from the municipal court of record may not be by trial de novo.


Tex. Gov’t Code § 30.00014(a)-(b) (emphases added). We have previously held that prior to the

legislature’s enactment of section 822.0424 in 2015, section 30.00014(a) provided the right to appeal

from a municipal court of record’s dangerous dog determination, even though “the ‘dangerous dog’

determination of the municipal court is a civil judgment rather than a criminal conviction.”1 See

Wrencher v. State, No. 03-15-00438-CV, 2017 WL 2628068, at *1–2 (Tex. App.—Austin

June 16, 2017, no pet.) (mem. op.) (citing Timmons v. Pecorino, 977 S.W.2d 603, 605 (Tex. Crim.

App. 1998) (Price, J., concurring)). We grounded this decision by noting that the right to appeal

from “a judgment or a conviction” as stated in subsection (a) encompasses “two classes of judicial

decisions” and that the word “‘conviction’ almost universally refers to a judicial decision in a

criminal matter, whereas ‘judgment’ commonly refers to a judicial decision in a civil case.” Id.


       1
          To the extent the county court relied on article 44.17 of the Texas Code of Criminal
Procedure to limit Pool’s entitlement to a jury trial on request, the court abused its discretion because
the Texas Code of Criminal Procedure does not apply to an appeal from a civil judgment, like a
municipal court’s dangerous dog determination. Compare Tex. Code Crim. Proc. art. 44.17 (“An
appeal to the county court from a municipal court of record may be based only on errors reflected
in the record.”), with id. art. 1.02 (“The procedure herein prescribed shall govern all criminal
proceedings[.]”); see Baxter v. Texas Dep’t of Human Res., 678 S.W.2d 265, 267 (Tex.
App.—Austin 1984, no writ) (holding that “the Code of Criminal Procedure applies only to criminal
actions” and is therefore “inapplicable to the present case” because “this is a civil action”).

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                Applying this same logic, we conclude here that although subsection (a) grants the

right to appeal from a municipal court of record judgment, subsection (b) does not apply to such an

appeal. While subsection (a) discusses an appeal from a “judgment or conviction,” subsection (b)

concerns only an appeal from a “municipal court of record conviction,” without mentioning

judgment. Compare Tex. Gov’t Code § 30.00014(a), with id. § 30.00014(b); see also TGS-NOPEC

Geophysical Co. v. Combs, 340 S.W.3d 432, 439, 441 (Tex. 2011) (“We presume that the legislature

chooses a statute’s language with care, including each word chosen for a purpose, while purposefully

omitting words not chosen.”). Because Pool’s appeal is from a judgment, not a conviction, we hold

that section 30.00014(b) of the Texas Government Code does not limit Pool’s entitlement to a jury

trial on request.2 Accordingly, the county court abused its discretion in failing to apply the law

entitling Pool to a jury trial on request, see Tex. Health & Safety Code § 822.0424(a), and in denying

Pool’s timely requested jury trial, 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.”); In re Vaughan, No. 12-14-00006-CV,

2014 WL 4637969, at *3 (Tex. App.—Tyler Sept. 17, 2014, orig. proceeding) (mem. op.) (“[A] trial




        2
           Our conclusion is further supported by the fact that even if section 822.0424(a) of the
Texas Health & Safety Code could not be harmonized with section 30.00014(b) of the Texas
Government Code, section 822.0424(a) would prevail as the more recent and specific statute. See
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000) (recognizing “the
traditional statutory construction principle that the more specific statute controls over the more
general”); see also Tex. Gov’t Code § 311.026(b) (“If the conflict between the general provision and
the special or local provision is irreconcilable, the special or local provision prevails as an exception
to the general provision, unless the general provision is the later enactment and the manifest intent
is that the general provision prevail.”).

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court abuses its discretion by dispensing with a jury trial that has been properly demanded without

the assent of the party who demanded it.”).


Inadequate Remedy

                As discussed above, the legislature has expressly provided the right to a jury trial in

dangerous dog determination appeals, and it is undisputed Pool timely took the appropriate steps to

preserve that right. See Tex. Health & Safety Code § 822.0424(a). “Denial of a jury trial, when a

right to one is clearly shown, can be addressed both by appeal and mandamus.” In re Reiter,

404 S.W.3d 607, 611 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding) (citing Prudential,

148 S.W.3d at 139; In re Samford, 249 S.W.3d 761, 763 (Tex. App.—Texarkana 2008, orig.

proceeding)). However, the denial of a jury request is not reviewable by interlocutory appeal. See

Campbell v. State, No. 14-02-01183-CV, 2002 WL 31719016, at *1 (Tex. App.—Houston [14th

Dist.] Dec. 5, 2002, no pet.) (mem. op.) (not designated for publication) (“An interlocutory appeal

from an order denying a jury trial is not expressly provided for by statute. Therefore, this Court is

without jurisdiction over these appeals.”).

                The Texas Supreme Court has recognized that review by mandamus “is justified only

when parties stand to lose their substantial rights.” Walker, 827 S.W.2d at 842 (quoting Iley,

311 S.W.2d at 652). Our sister courts have held that a right to a jury trial constitutes a “substantial

right,” and that “because [the relator] stands to lose a substantial right [right to a jury trial], [the

relator] does not have an adequate remedy by appeal.” In re Lesiker, 285 S.W.3d 577, 587 (Tex.

App.—Houston [14th Dist.] 2009, orig. proceeding) (citing Rosenthal v. Ottis, 865 S.W.2d 525, 529




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(Tex. App.—Corpus Christi 1993, orig. proceeding)); see In re Baker, 495 S.W.3d 393, 397 (Tex.

App.—Houston [14th Dist.] 2016, orig. proceeding).

                Moreover, the Texas Supreme Court has expressly denied that a party is relegated to

“its appellate remedy when denied its constitutional right to a jury trial,” claiming this premise is

simply “not true.” Prudential, 148 S.W.3d at 140. And the reasons to conduct mandamus review

over the denial of the jury trial in this case are manifold. “[R]equiring relator to try their case

without a jury would effectively render the trial a certain nullity on appeal.” State v. Landry,

793 S.W.2d 281, 284 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding). Mandamus review

would “spare private parties and the public the time and money utterly wasted enduring eventual

reversal of improperly conducted proceedings.” Prudential, 148 S.W.3d at 136; see Reiter,

404 S.W.3d at 611 (noting that appellate remedy would be inadequate because “both parties would

be required to endure a [bench] trial and its attendant expenses for naught” (citing In re McAllen

Med. Ctr., Inc., 275 S.W.3d 458, 466 (Tex. 2008) (orig. proceeding)). Finally, “[t]o say that the

[county court] committed reversible error while declining to correct the injustice would compromise

the integrity of the [] statute and result in an irreversible waste of resources.” See In re Team Rocket,

L.P., 256 S.W.3d 257, 263 (Tex. 2008) (orig. proceeding) (holding no adequate appellate remedy

exists for violation of statutory venue procedure).

                As the Texas Supreme Court put it, “[w]e simply [can] not justify putting the civil

justice system itself to the trouble of grinding through proceedings that were certain to be ‘little more

than a fiction’” when “the error [is] clear enough, and correction simple enough, that mandamus

review [would be] appropriate.” Prudential, 148 S.W.3d at 137. We conclude that the benefits to



                                                   8
mandamus review in this case outweigh any of the detriments. See id. at 136. Following our sister

courts, we therefore hold that, on this record, Pool has no adequate appellate relief from the

denial of her right to a jury trial. See, e.g., Vaughan, 2014 WL 4637969, at *3; In re Alaniz,

No. 13-13-00291-CV, 2013 WL 3895360, at *1, 4 (Tex. App.—Corpus Christi July 23, 2013, orig.

proceeding) (mem. op.); Lesiker, 285 S.W.3d at 587; Rosenthal, 865 S.W.2d at 529; Landry,

793 S.W.2d at 284.


                                         CONCLUSION

               For these reasons, we conditionally grant the petition for writ of mandamus. We

direct Respondent to vacate the order denying Pool her requested jury trial in an appeal and to grant

her request for a jury trial. We are confident that Respondent will promptly comply with this

opinion. The writ will issue only if Respondent fails to do so.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Baker

Filed: January 23, 2019




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