Opinion issued June 13, 2019




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-18-01081-CV
                             ———————————
 IN THE INTEREST OF D.K.J.J., D.K.D.J., D.D.J., JR., D.Q.D.J., D.K.J.J.,
                  AKA B.B.B., Minor Children



                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-05317J


                 CONCURRING AND DISSENTING OPINION

      The mother complains that the trial court erred in denying her a jury trial. I

agree and thus dissent as to the termination of her parental rights. The father does

not raise his right to trial by jury on appeal. I thus concur in the majority’s analysis

as to the sufficiency of the evidence supporting the termination of his parental rights.
See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam) (courts of

appeals cannot reverse trial court judgment for reasons not raised by party).

                                     BACKGROUND

       The trial court appointed the Department of Family and Protective Services as

temporary managing conservator of the children on November 9, 2017. Absent

extraordinary circumstances, the court was required to commence the trial on the

merits by November 12, 2018. See TEX. FAM. CODE § 263.401(a), (b).

       In August 2018, the trial court set this case for trial on October 30, 2018. Both

parents filed a request for a jury trial on October 1. They paid the jury fee the same

day.

       Three days later, the trial court held a hearing on the parents’ jury request. The

hearing was very brief. Excluding the cover page, appearances of counsel, index,

and court reporter’s certificate, the transcript is just five pages. The trial court stated

that it would not consider the state of its jury-trial docket in ruling on the parents’

jury request. Instead, the court continued, “this is simply a question of whether or

not the request was timely filed.” It concluded, “I’m gonna find that it’s not timely

filed and that request is denied.”

       The parties tried the case to the bench as scheduled. Before trial commenced,

both parents reasserted their request for trial by jury, which the trial court again

denied. The trial was completed in a single day.


                                            2
                                    DISCUSSION

                                  Standard of Review

      We review a trial court’s denial of a jury request for abuse of discretion.

Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996);

Barkhausen v. Craycom, Inc., 178 S.W.3d 413, 417 (Tex. App.—Houston [1st Dist.]

2005, pet. denied). We examine the entire record. Rhyne, 925 S.W.2d at 666;

Barkhausen, 178 S.W.3d at 417. If the record shows that the trial court’s decision

was arbitrary, unreasonable, or without reference to guiding principles, then it

abused its discretion. Rhyne, 925 S.W.2d at 666; Barkhausen, 178 S.W.3d at 417.

      The trial court has no discretion in deciding what the law is or in applying the

law to the facts. Pressley v. Casar, 567 S.W.3d 327, 333 (Tex. 2019). The trial court

therefore also abuses its discretion if it fails to correctly analyze or apply the law. In

re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (per curiam).

                                Right to Trial by Jury

      When the Department seeks to terminate parental rights, the parents are

entitled to a trial by jury, if they timely request one. See TEX. FAM. CODE § 105.002.

To be timely, parents generally must file a jury request “a reasonable time before the

date set for trial of the cause on the non-jury docket, but not less than thirty days in

advance.” TEX. R. CIV. P. 216. Strict compliance with the 30-day deadline imposed

by the rules of civil procedure, however, is not always required. See Gen. Motors


                                            3
Corp. v. Gayle, 951 S.W.2d 469, 476–77 (Tex. 1997). The right to a jury trial is a

constitutional one. TEX. CONST. art. I, § 15; id. art. V, § 10. The Supreme Court has

described it as “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)). Thus, when a jury request is untimely made, the request

should be granted “if it can be done without interfering with the court’s docket,

delaying the trial, or injuring the opposing party.” Id. We “closely scrutinize any

denial of this important right to a litigant.” Ogu v. C.I.A. Servs., No. 01-07-00933-

CV, 2009 WL 41462, at *3 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, no pet.)

(mem. op.); see also In re J.C., 108 S.W.3d 914, 917 (Tex. App.—Texarkana 2003,

no pet.) (denial of right to jury trial is “very serious matter” subject to “utmost

scrutiny”).

                                      Analysis

      The mother filed her jury request and paid the jury fee 29 days before trial.

She thus missed the 30-day deadline for filing her request. Even so, the trial court

should have granted her request if it could do so “without interfering with the court’s

docket, delaying the trial, or injuring the opposing party.” Gayle, 951 S.W.2d at 476.

Instead, the trial court simply concluded that the request was untimely and denied it

on that basis alone. When the Department’s counsel tried to urge that the court’s

jury-trial docket could not accommodate the mother’s request, the trial court


                                           4
interjected that this circumstance “wouldn’t be something that I would use to decide

this particular issue.” This is a clear abuse of discretion because the court’s ability

to accommodate the late request without interference to its docket and without delay

of trial are two of the considerations that the court must consider. See id. The trial

court cannot do what it did, which is deny the jury request merely because it was

made a day late. See id. The trial court made its decision without reference to guiding

principles. It had no discretion to misapply the law.

      Nothing in the record shows that this brief trial could not have been tried to a

jury without interfering with the court’s docket or delaying trial. Nor does the record

show that the Department would have been injured by the mother’s delay in filing

her jury request if the trial court had granted it. Cf. In re D.R., 177 S.W.3d 574, 580

(Tex. App.—Houston [1st Dist.] 2005, pet. denied) (in case in which conservatorship

as to one child was tried to jury but conservatorship as to two others were tried to

bench, jury request not made until charge conference caused unfair surprise as ad

litem had done voir dire, opened, and cross-examined witnesses with understanding

that these two cases would be submitted to court for decision); Universal Printing

Co. v. Premier Victorian Homes, 73 S.W.3d 283, 287, 294–95 (Tex. App.—Houston

[1st Dist.] 2001, pet. denied) (affirming denial of jury request and holding that trial

court did not err in crediting opposing counsel’s claim that movant’s late payment




                                           5
of jury fee 15 days before five-day bench trial in suit involving claims for civil

conspiracy, nuisance, and trespass caused unfair surprise).

      The majority faults the mother for failing to adequately brief this issue. The

mother’s briefing of her right to a jury trial is lackluster. But she clearly raises the

issue. She identifies the correct standard of review, noting that the trial court has

discretion as to untimely requests. She complains that her request should have been

granted given that it “was made within hours of the 30-day deadline.” And her

statement of the case and statement of facts identify where in the record we may find

the trial court’s adverse rulings.

      Under the circumstances, the mother’s brief suffices to preserve for review

the issue of her right to a jury trial. The law concerning this issue is well-settled, the

relevant portion of the trial record is quite limited and easily reviewed, and the trial

court’s error is manifest on the face of the record. While better briefing would have

been helpful and appreciated, we must construe appellate briefs “reasonably, yet

liberally,” and we “should reach [the] merits” on appeal “whenever reasonably

possible.” Tanner v. Black, 464 S.W.3d 23, 29 (Tex. App.—Houston [1st Dist.]

2015, no pet.) (relying on Perry v. Cohen, 272 S.W.3d 585, 588 (Tex. 2008)).

                                     Harmless Error

      The majority further concludes that any error in denying the mother a trial by

jury was harmless and thus not a basis for reversal. The majority is mistaken.


                                            6
       The erroneous denial of a jury request is harmless if and only if “the record

shows that no material issues of fact exist and an instructed verdict would have been

justified.” Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991) (per curiam); see

also Taylor v. Taylor, 63 S.W.3d 93, 101 (Tex. App.—Waco 2001, no pet.) (reversal

required unless record shows no material fact dispute and instructed verdict proper).

       The Department does not contend that no material issues of fact existed for

resolution by a factfinder and that the trial court would have been justified in

terminating the mother’s parental rights as a matter of law. The majority’s factual

sufficiency analysis shows that there were material fact disputes at trial. Thus, the

trial court’s error in denying the mother’s jury request was not harmless.

                                     CONCLUSION

       The remedy when a trial court errs in denying a jury request, and the error is

not harmless, is remand for a jury trial. Halsell, 810 S.W.2d at 372; Commerce &

Indus. Ins. Co. v. Ferguson-Stewart, 339 S.W.3d 744, 748–49 (Tex. App.—Houston

[1st Dist.] 2011, no pet.). On this record, the mother was entitled to try her case

before a jury. Because the majority does not give sufficient weight to her

constitutional right to a jury trial, I dissent.




                                              7
                                             Gordon Goodman
                                             Justice

Panel consists of Justices Keyes, Kelly, and Goodman.

Justice Goodman, concurring and dissenting




                                       8
