IN THE
TENTH COURT OF APPEALS
No. 10-19-00223-CV
IN THE INTEREST OF W.S., A CHILD
From the 74th District Court
McLennan County, Texas
Trial Court No. 2017-2308-3
MEMORANDUM OPINION
William S. appeals from a judgment terminating his parental rights to his child,
W.S. See TEX. FAM. CODE ANN. § 161.001. In his sole issue, William complains that the
referring court abused its discretion by denying his jury demand in his de novo hearing.
Because we find that the referring court did not abuse its discretion, we affirm the
judgment of the referring court.
In July of 2017, W.S. was removed from his mother when he was approximately
three days old. William participated in the early stages of this proceeding, including the
adversary hearing. He participated in some services, including drug tests, but stopped
and was absent for a few months. William later requested a paternity test and was found
to be the father of W.S. in April of 2018. William participated in services with the
Department and largely completed his service plan requirements. Because William had
been participating in services, in July of 2018, the trial court granted his motion for
extension of the case for 180 days and set the new dismissal date for January 19, 2019. At
a permanency hearing in October, a final hearing was scheduled for January 8, 2019.
William filed a request for a jury trial on November 13, 2018.
On January 8, 2019, counsel for William filed a motion to withdraw his request for
a jury trial and that same day, the trial court signed an agreed order that withdrew the
jury trial request. The trial commenced on January 15, 2019, and continued on February
28 and March 6, 2019 before an associate judge. The associate judge informed the parties
of her findings by letter on March 7, 2019. William requested a de novo hearing of the
evidentiary sufficiency relating to the predicate ground for termination and best interest
of the child on March 11, 2019. William filed a request for a jury trial on March 12, 2019.
The attorney/guardian ad litem for the child filed a written objection to the request
for a jury trial and a motion to quash the request for a jury trial, which was heard by the
referring court on March 22, 2019. On March 27, 2019, the referring court granted the
motion to quash the request for a jury trial. The de novo hearing took place before the
referring court on April 5, 2019, and the referring court granted the termination of
William's parental rights.
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William complains that the referring court abused its discretion by denying the
request for a jury trial he filed on March 12, 2019. We review the trial court's denial of a
request for a jury trial for an abuse of discretion. In re A.L.M.-F., No. 17-0603, ___ S.W.3d
___, 2019 Tex. LEXIS 426, 2019 WL 1966623, at *8 (Tex. May 3, 2019). A trial court abuses
its discretion when its decision is arbitrary, unreasonable, and without reference to
guiding principles. Id.
The right to a de novo hearing is found in Section 201.015 of the Family Code.
Under Section 201.015, a de novo hearing is permitted only if requested within three
working days after notice of the associate judge's decision and the hearing must be held
within thirty calendar days after the notice. TEX. FAM. CODE ANN. § 201.015(a), (f). The
Texas Supreme Court has recently decided that there is no statutory right to a jury trial
in a de novo hearing, but the referring court has the discretion to allow one. See In re
A.L.M.-F. at *16.
In describing the standard of review in determining whether or not a trial court
erred by denying a request for a jury trial in a de novo hearing, the Texas Supreme Court
has further stated:
When a jury trial is available as a matter of right, a timely request is
presumptively reasonable and ordinarily must be granted absent evidence
that granting the request would "(1) injure the adverse party, (2) disrupt the
court's docket, or (3) impede the ordinary handling of the court's business."
But because section 201.015 does not afford a right to a jury trial in a de novo
hearing, no presumption arises. Though injury, disruption, and
impediment remain useful factors guiding the court's decision to grant or
deny a first-time jury demand, no presumption tips the scale one way or
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the other, leaving the ultimate decision within the trial court's sound
discretion.
Id. at *18 (internal citations omitted).
At the hearing on the motion to quash the request for a jury trial, William argued
that the case could be set for a jury trial on April 1, April 8, or April 15, 2019. 1 The case
would be a second setting on April 1 or April 8, meaning that there was a case that had
been set previously ahead of this one. William stated that he would be willing to submit
all but four witnesses by the prior trial transcript to be read to the jury in order to
minimize prejudice to the other parties. However, the Supreme Court stated in In re
A.L.M.-F. that it was uncertain whether or not Section 201.015(c) would even allow prior
testimony from the proceedings before the associate judge to be considered in a jury trial
in the referring court. Id. at *19. The Court further recognized that even if that were an
allowable procedure, the referring court "could reasonably conclude the Department
would be unfairly prejudiced if forced to rely on the cold written word in lieu of live
testimony before the jury." Id.
The ad litem and the Department objected to a jury trial because the reporter's
record from the trial before the associate judge would not be available until April 2, 2019,
which was after the April 1, 2019 date and the April 15, 2019 date was after the 30 day
deadline found in Section 201.015(f). Further, the ad litem argued that as a solo
1There was no evidence presented that these assertions were in fact, correct, but neither the ad litem nor
the Department disputed these contentions at the hearing.
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practitioner, he would be unable to prepare adequately for a jury trial by that time or
have the time available to try the case to a jury, which would require significantly more
time as opposed to a bench trial which would consume less time.
The Department objected to the request for a jury trial and argued that to have a
jury trial would result in unnecessary expense and delay to the permanency of the child.
The Department further argued that it was unaware if the expert from Travis County that
had testified at the trial before the associate judge would be available at that time.
Based on the foregoing, by considering the factors the Supreme Court set forth as
being instructive in In re A.L.M.-F., we do not find that the trial court abused its discretion
in granting the motion to quash and denying the request for a jury trial. We overrule
William's sole issue.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed October 16, 2019
[CV06]
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