in the Matter of Troy S. Poe Trust

Supreme Court of Texas
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No. 20-0179
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In the Matter of Troy S. Poe Trust

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On Petition for Review from the
Court of Appeals for the Eighth District of Texas
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JUSTICE BUSBY, joined by Justice Devine and Justice Young,
concurring.

In declaring our independence from Mexico, Texans listed among
their grievances that the Mexican government “failed and refused to
secure, on a firm basis, the right of trial by jury, that palladium of civil
liberty, and only safe guarantee for the life, liberty, and property of the
citizen.” 1 We have similarly described the jury-trial right as “a
substantive liberty guarantee of fundamental importance,” Forbau v.
Aetna Life Ins. Co., 876 S.W.2d 132, 144 n.19 (Tex. 1994), that holds “a

1Declaration of Independence of the Republic of Texas (1836), reprinted
in TEX. CONST. app. 771, 772 (2018).
sacred place in English and American history.” White v. White, 196 S.W.
508, 512 (Tex. 1917). 2
The framers of our present Texas Constitution considered this
right so important that they used sweeping and emphatic language to
guarantee it not once, but twice. Not only shall “[t]he right of trial by
jury . . . remain inviolate,” TEX. CONST. art. I, § 15, it shall apply upon a
party’s request “[i]n the trial of all causes.” Id. art. V, § 10. The latter
provision, in the Judiciary Article, was adopted to require that juries
resolve ultimate issues of fact in equitable as well as legal proceedings.
See Cockrill v. Cox, 65 Tex. 669, 672 (1886).
For more than a century, however, Texas courts have riddled the
undeniably “broad” text of the Judiciary Article with ad hoc, “case-by-
case” exceptions that deem juries “unsuitable” based on “isolated”
“[s]pecial circumstances” rather than any coherent analytical
framework. See State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288,
292–93 (Tex. 1975). As a result, the Judiciary Article’s jury-trial
guarantee no longer does what it plainly says: “all causes” does not mean
all causes.
This important right deserves better protection than a
hodgepodge of confusing precedents and indeterminate adjectives. Like
barnacles encrusting the hull of a ship, which make it impossible to see
the underlying surface, every new case seems to obscure further the

2 See also Northcutt v. Northcutt, 287 S.W. 515, 515–16 (Tex. App.—
Eastland 1926, writ dism’d w.o.j.) (describing jury-trial right as “one of the
greatest and most blessed securities afforded to free men” and “a landmark in
our constitutional guaranties [sic], . . . the abridgement of [which] would bring
dire results to our form of government”).

2
original meaning of the jury-trial guarantees. Whether parties can
claim the inviolable right to a jury in all causes should not be determined
by allowing judges to label a jury “unsuitable” or a particular proceeding
“special.” Our Constitution is clear that a jury trial is a matter of right—
not of suitability—in all causes, regardless of whether judges view them
as special. Indeed, both jury-trial provisions exist, in part, to check the
power of judges to deprive a person of life, liberty, or property except
where his or her fellow citizens agree that disputed facts warrant that
result.
One of the issues before us is whether the Judiciary Article of the
Constitution guarantees a jury trial in a suit for modification of a trust
under our statute that codifies the traditional equitable doctrine of
deviation. See TEX. PROP. CODE § 112.054. 3 The Court remands for the
court of appeals to address petitioners’ contention that the Judiciary
Article’s jury-trial guarantee does not cover trust-modification suits.
Ante at __. Because petitioners chose not to raise this alternative ground
for affirming the trial court’s denial of a jury trial until they filed their
motion for rehearing in the court of appeals, I agree with the Court’s

3 Modification is an exception to the default rule under the Trust Code
that “[a] trust is not subject to continuing judicial supervision” unless the court
orders otherwise. TEX. PROP. CODE § 115.001(c). Thus, a trustee may never
come into contact with the court system at all. In cases where a court does
supervise the trustee, we have held that the court’s approval of an accounting
does not bar a suit for breach of fiduciary duty in which fact issues would be
decided by a jury. See Tex. State Bank v. Amaro, 87 S.W.3d 538, 544–45 (Tex.
2002). We have not yet addressed whether there are fact issues for a jury to
decide in a modification suit.

3
discretionary decision to remand. See id. at __; G.T. Leach Builders,
LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 519 (Tex. 2015).
In my view, this disposition has an added benefit: it provides a
good opportunity to begin correcting the course of our jury-trial
jurisprudence, guided by “the plain meaning of the [constitutional] text
as it was understood by those who ratified it.” In re Abbott, 628 S.W.3d
288, 293 (Tex. 2021). Of course, the court of appeals is not free to
reexamine this Court’s precedent—something we may eventually have
to do. But it is entirely proper for the court of appeals to determine in
the first instance what the Constitution actually requires, and to resolve
the case on that basis unless doing so would contravene a precedent of
this Court. Assuming that the parties press the issue, the court of
appeals would make a useful start by studying the meaning of the
language chosen by the framers and adopters of the Judiciary Article’s
guarantee in its historical context. See Degan v. Bd. of Trs. of Dall.
Police & Fire Pension Sys., 594 S.W.3d 309, 313 (Tex. 2020). I thus
encourage the parties, practitioners, legal historians, and other
interested amici—in this case and others—to contribute their level-best
assessment of what the 1876 Constitution meant by “cause,” relying on
contemporary sources.
The meaning of the Judiciary Article’s language may be
consistent with our precedent, or it may not. But to decide whether it
is, a clear understanding of our precedent will also be necessary. To
further this understanding, it would be helpful for courts to organize our
past decisions into categories according to the rationales that motivated
the holdings, identify the dispositive inquiry in each category, and

4
decide whether a particular jury demand must be honored under the
applicable category.
With the hope that better days are ahead for our twin jury-trial
guarantees, I offer some observations regarding an overall analytical
framework of our precedent for the bench, bar, and amici to consider as
this and future cases offer opportunities to bring more clarity, historical
insight, and analytical rigor to our jurisprudence implementing Texans’
constitutional right to a jury trial.
* * *
As explained above, the right to a jury trial takes a unique form
in our present Constitution, which “twice guarantees the right.” Tex.
Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 526 (Tex. 1995).
Our cases are fairly clear in distinguishing between these two
guarantees, but beyond that our precedent is—to put it mildly—quite a
mess.
The court of appeals did a commendable job of beginning to
grapple with the Constitution’s jury-trial guarantees despite very
limited briefing from the parties. That court took care to note that the
two guarantees provide different scopes of protection. 591 S.W.3d 168,
176–77 (Tex. App.—El Paso 2019). The court also observed that under
the Judiciary Article, “the right to a jury trial extends to disputed issues
of fact in equitable, as well as legal proceedings,” id. at 178 (citing San
Jacinto Oil Co. v. Culberson, 101 S.W. 197, 198 (Tex. 1907)), while it is
the trial court’s role to “determine[] the ‘expediency, necessity, or
propriety of equitable relief.’” Id. at 179 (quoting State v. Tex. Pet Foods,
Inc., 591 S.W.2d 800, 803 (Tex. 1979)). Finally, as part of a harmless-

5
error analysis, the court concluded that “the questions of changed
circumstances and impossibility of performance”—the statutory
predicates for modification at issue here—“were at least disputed fact
questions on this record.” Id. at 181. 4
As the Court points out, however, the court of appeals ultimately
looked to the modification statute—section 112.054 of the Trust Code—
and its incorporation of our Rules of Civil Procedure to hold that a jury
trial was required. I agree with the Court that this statutory holding is
incorrect. See ante at __.
In this Court, all parties have addressed the constitutional issue
directly and provided helpful briefing regarding how it should be decided
under our existing cases. Although I join the Court’s prudential decision
not to resolve that issue today in the first instance, the parties’ briefing
does provide a starting point for organizing our precedent.
To begin that process, I offer the following observations. Rather
than attempting to determine whether the proceeding at issue shares a
common factual feature with another proceeding that we have held does
not require a jury, it is helpful to focus on the motivating reasons
underlying our holdings. When examined through this lens, the
following four categories and relevant inquiries emerge from our case-
by-case determinations. These categories may not be exhaustive, may
overlap to some extent, and may require future adjustment. But they
offer useful guideposts for starting to make sense of our precedent
implementing the Constitution’s twin jury-trial guarantees.

4 I express no view on the correctness of these conclusions at this
juncture.

6
 First, “by successive constitutions both as a Republic and as a
State, [Texas] has protected the right to a trial by jury in those cases
where a jury would have been proper at common law.” Credit Bureau,
530 S.W.2d at 291. This protection currently appears in our Bill of
Rights, which provides that “[t]he right of trial by jury shall remain
inviolate.” TEX. CONST. art. I, § 15.
We have explained that the Bill of Rights “preserves a right to
trial by jury for those actions, or analogous actions, tried to a jury at the
time the constitution of 1876 was adopted.” Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 450 (Tex. 1993). “It therefore only applies
if, in 1876, a jury would have been allowed to try the action or an
analogous action.” Barshop v. Medina Cnty. Underground Water
Conserv’n Dist., 925 S.W.2d 618, 636 (Tex. 1996).
Thus, if the proceeding is (a) an action under the common law,
(b) analogous to such an action, or (c) a statutory or rule-based
substitute for such an action, then the relevant jury-trial guarantee is
found in the Bill of Rights. Credit Bureau, 530 S.W.2d at 291–92; see
also Garcia, 893 S.W.2d at 527 (“The [Workers’ Compensation] Act is a
substitute for the common law negligence remedy, which was an action
tried to a jury in 1876. Therefore, . . . the Act’s remedy is analogous to
a claim for which the right to jury trial is constitutionally preserved.”);
Barshop, 925 S.W.2d at 636 (“We therefore hold that no right to jury
trial under article I, section 15 of the Texas Constitution attaches to
appeals from the permit adjudications under the [Edwards Aquifier] Act
since these are not actions, or analogous actions, which were tried to a
jury at the time the Texas Constitution was adopted.”). In such

7
proceedings, if a jury would have tried a disputed matter as a fact at the
time the Constitution was ratified in 1876, 5 the Bill of Rights’ guarantee
of the “right of trial by jury” applies and no further inquiry is needed
because the Legislature cannot abrogate the constitutional right to a
jury trial by statute. See Garcia, 893 S.W.2d at 527, 529; White, 196
S.W. at 512–13.
Second, the Judiciary Article of the Constitution provides that
“[i]n the trial of all causes in the district courts, the plaintiff or defendant
shall, upon application made in open court, have the right of trial by
jury.” TEX. CONST. art. V, § 10. As to the meaning of “all causes,” the
framers of the 1845 Constitution added the original version of this
provision to extend the jury-trial guarantee to “all causes in equity,” 6
which had not been covered by the Bill of Rights in the Republic
Constitution. See Credit Bureau, 530 S.W.2d at 292; Cockrill, 65 Tex. at
672. Subsequent Constitutions provided that the jury-trial right “shall
be preserved” in “all cases of law or equity,” 7 and our present
Constitution settled on the broader phrase “all causes.” Thus, “the right
to a jury trial extends to disputed issues of fact in equitable as well as

5 Cf. Johnson v. State, 267 S.W. 1057, 1062 (Tex. App.—Dallas 1924,
writ ref’d) (explaining there was no right to a jury at common law in a contempt
proceeding); Pittman v. Byars, 112 S.W. 102, 103 (Tex. Civ. App.—Austin 1908,
no writ) (“There were, however, prior to the adoption of the Constitution
certain classes of cases which were triable without jury, and all cases
previously triable without jury may still be so tried.”). I discuss proceedings
historically tried without a jury in the third category below.
6 TEX. CONST. of 1845, art. IV, § 16.
7 TEX. CONST. of 1866, art. IV, § 20; TEX. CONST. of 1869, art. V, § 16.

8
legal proceedings.” Casa El Sol–Acapulco, S.A. v. Fontenot, 919 S.W.2d
709, 715–16 (Tex. App.—Houston [14th Dist.] 1996, writ dism’d by agr.).
If a proceeding is (a) a cause in equity, (b) analogous to one, or
(c) a statutory or rule-based substitute for one, the pivotal inquiry in
deciding whether there is a “right of trial by jury” under the Judiciary
Article is whether the disputed matter is a question of fact that must be
submitted to a jury or a question of equitable discretion to be decided by
the court. See San Jacinto Oil, 101 S.W. at 199 (holding that, under
receivership statute authorizing court appointment of master with
equitable powers, the right “[t]o still demand a jury to try the issues of
fact is . . . secured . . . by the [C]onstitutio[n]”); Hall v. Layton, 10 Tex.
55, 60–61 (1853). Although the boundary between questions of fact and
questions of equitable discretion is hardly a novel issue, we have not had
occasion to address in detail the proper handling of potentially “mixed”
questions of fact and discretion. 8 Yet our recent cases provide some
guidance for determining whether a question falls on the factual or
discretionary side of this line.
“When contested fact issues must be resolved before equitable
relief can be determined, a party is entitled to have that resolution made
by a jury.” Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 741 (Tex.
2018) (quoting Burrow v. Arce, 997 S.W.2d 229, 245 (Tex. 1999)). 9 Thus,

8By comparison, in a cause under the common law, mixed questions of
fact and law are submitted to a jury. E.g. Hart v. Bullion, 48 Tex. 278, 289
(1877).
9 See also Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574
S.W.3d 882, 887 (Tex. 2019) (“Although the expediency, necessity, and
propriety of equitable relief is a matter for the court, a jury may be required to

9
“a jury may have to settle disputed issues about what happened.”
Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428 (Tex. 2008).
But “[a]s a general rule, a jury ‘does not determine the expediency,
necessity, or propriety of equitable relief.’” Burrow, 997 S.W.2d at 245
(quoting Tex. Pet Foods, 591 S.W.2d at 803). 10 “[T]he weighing of all
equitable considerations . . . and the ultimate decision of how much, if
any, equitable relief should be awarded, must be determined by the trial
court.” Hill, 544 S.W.3d at 741 (quoting Hudson v. Cooper, 162 S.W.3d
685, 688 (Tex. App.—Houston [14th Dist.] 2005, no pet.)). 11

resolve disputed issues when material facts are contested.”); DiGiuseppe v.
Lawler, 269 S.W.3d 588, 596 (Tex. 2008).
10 See also Caballero v. Cent. Power & Light Co., 858 S.W.2d 359, 361
(Tex. 1993) (discussing “our practice in injunction proceedings of requiring
submission to the jury of only the ultimate issues of fact, but leaving the purely
equitable determinations (expediency, necessity, or propriety of equitable
relief) to the judge”); Tex. Pet Foods, 591 S.W.2d at 803 (“A jury in equity, even
under a blended system, does not decide the issue of expediency, necessity or
propriety of equitable relief.” (quoting Alamo Title Co. v. San Antonio Bar
Ass’n, 360 S.W.2d 814, 816 (Tex. App.—Waco 1962, writ ref’d n.r.e.))).
11 See also Longview Energy Co. v. Huff Energy Fund LP, 533 S.W.3d
866, 874 (Tex. 2017) (“The scope and application of equitable relief such as a
constructive trust [or disgorgement] . . . ‘is generally left to the discretion of
the court imposing it.’” (quoting Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d
723, 736 (Tex. App.—San Antonio 2007, pet. denied))); cf. Hart v. Mills, 38 Tex.
517, 519 (1873) (“It may be true that a complete denial, under oath, of all the
equities in a bill for an injunction does not entitle a party to a dissolution of an
injunction as a matter of law, but it certainly does place the whole matter
within the sound discretion of the court, to dissolve the injunction or not, as
the equities of the case may require . . . .”).

10
 This distinction, and the associated division of labor between
court and jury, 12 derives from courts’ recognition that “factors like the
adequacy of other remedies and the public interest . . . , as well as the
weighing of all other relevant considerations, present legal policy issues
well beyond the jury’s province of judging credibility and resolving
factual disputes.” Burrow, 997 S.W.2d at 245. For example, “[w]hether
it is ‘equitable and just’ to award less than the fees found by a jury is not
a fact question because the determination is not susceptible to direct
proof but is rather a matter of fairness in light of all the circumstances.”
Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 162 (Tex. 2004). 13 In
addition, forward-looking questions such as “imminent harm” 14 and
matters of degree such as “[t]he gravity . . . of the breach of duty” 15 are
for the court to decide.
Although the line between an “ultimate issue[] of fact,” Tex. Pet
Foods, 591 S.W.2d at 803, and “the ultimate decision of how much, if
any, equitable relief should be awarded,” Hill, 544 S.W.3d at 743
(quoting Hudson, 162 S.W.3d at 688), may not always be bright, the

Cf. Bigham v. Se. Tex. Env’t, LLC, 458 S.W.3d 650, 673 (Tex. App.—
12

Houston [14th Dist.] 2015, no pet.) (“Although a jury trial was conducted on
STE’s claims for damages and the breach-of-fiduciary duty question underlying
one of STE’s requests for disgorgement, the unauthorized-practice-of-law
determination and whether to order disgorgement on that basis were issues
for the bench.”).
13 See also Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
Operation Rescue-Nat’l v. Planned Parenthood of Hous. & Se. Tex.,
14

Inc., 975 S.W.2d 546, 554 (Tex. 1998).
15 ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 875 (Tex.
2010).

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inquiry is nonetheless a familiar one. See, e.g., Schuring v. Fosters Mill
Vill. Cmty. Ass’n, 396 S.W.3d 73, 76 (Tex. App.—Houston [14th Dist.]
2013, pet. denied) (explaining “two-step inquiry” that first asks
“whether the evidence shows actual changed circumstances” and second
“whether the trial court abused its discretion in ruling upon the
requested modification”). Courts have also held that the following
matters do not present issues of ultimate fact for a jury:
• the likelihood of an unconscionable hardship, 16
• whether a manifest injustice is threatened, 17
• whether a litigant has unclean hands, 18
• whether a constructive trust should be imposed, 19

16 See, e.g., Reynolds-Penland Co. v. Hexter & Lobello, 567 S.W.2d 237,
246 (Tex. App.—Dallas 1978, writ dism’d) (“Although we agree with the dissent
that the right to a jury trial extends to disputed fact issues in equitable, as well
as legal proceedings, we cannot agree that such questions as whether the delay
is slight or whether an unconscionable hardship results are the type of
disputed fact issues that may be decided by a jury.”).
17 See City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 773
(Tex. 2006) (“We cautioned that this exception is available ‘only in exceptional
cases where the circumstances clearly demand its application to prevent
manifest injustice.’ The court, not the jury, determines whether the exception
applies.” (citation omitted) (quoting City of Hutchins v. Prasifka, 450 S.W.2d
829, 836 (Tex. 1970))).
See, e.g., Stafford v. S. Vanity Mag., Inc., 231 S.W.3d 530, 537 (Tex.
18

App.—Dallas 2007, pet. denied).
19See Longview Energy Co., 533 S.W.3d at 874; Burrow, 997 S.W.2d at
249 (“[W]hether a constructive trust should be imposed must be determined by
a court based on the equity of the circumstances.”).

12
 • the division of property in a divorce action, 20 and
• other factors relevant to a court’s weighing of the equities. 21
Our remaining precedent can be grouped into two additional
categories. “Although the right to jury trial under the Judiciary [A]rticle
is potentially broader than under the Bill of Rights in that it covers all
‘causes’ regardless of whether a jury was available in 1876, it can also
be narrower in that not all adversary proceedings are ‘causes’ within the
meaning of the Judiciary Article.” Garcia, 893 S.W.2d at 527. For
example, “[f]or over one hundred years, we have noted that ‘in certain
types of adversary proceedings the constitutional right to a jury trial
does not attach.’” Oncor Elec. Delivery Co. v. Chaparral Energy, LLC,
546 S.W.3d 133, 144 (Tex. 2018) (quoting Tex. Ass’n of Bus., 852 S.W.2d
at 450). In addition, “access to a jury need not be provided at the initial
adjudication, so long as ‘the right to appeal and the jury trial on appeal
are secured.’” Id. (quoting Cockrill, 65 Tex. at 674).
As explained in Credit Bureau, our Court has tended so far to
make “case-by-case determination[s]” regarding the types of proceedings
that implicate a constitutionally protected jury right. 530 S.W.2d at 293.
In that case, we listed at least five contexts in which “[s]pecial
circumstances justif[ied] our former holdings that not all adversary
proceedings qualify as a ‘cause’ under the Judiciary Article,” including

20 See, e.g., Walter v. Walter, 127 S.W.3d 396, 398 (Tex. App.—Dallas
2004, no pet.) (“The division of property in a divorce action is exclusively within
the province of the trial judge, not the jury.”).
21 Hill, 544 S.W.3d at 741–42.

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civil contempt proceedings, 22 election contests, 23 habeas corpus
proceedings for the custody of minor children, 24 suits for removal of a
sheriff, 25 and appeals in administrative proceedings. 26 We noted that
“[i]n each of the above instances, there is some special reason that a jury
has been held unsuitable.” Id.
Upon closer inspection, the reasons that we have identified for
denying a jury under the Judiciary Article generally fall into two
additional categories. As I explain next, the third category includes
adversary proceedings that are ancillary to or lack the essential
characteristics of a cause. And many of the proceedings mentioned in
Credit Bureau involved separate constitutional provisions that
compelled the court to conclude that no jury right attached to the
proceeding at issue. I address those proceedings in the fourth category
below.
Third, if the proceeding is one—whether ancillary or
supplementary to a cause or created by statute or rule—that lacks the
essential characteristics of a cause, the disputed matter need not be
tried to a jury unless a statute provides otherwise. See Gibson v.
Templeton, 62 Tex. 555, 558 (1884). One example is receiverships. A

Credit Bureau, 530 S.W.2d at 293 (citing Ex parte Allison, 90 S.W.
22

870 (Tex. 1906); Crow v. State, 24 Tex. 12 (1859); Johnson, 267 S.W. at 1062).
23 Id. (citing Hammond v. Ashe, 131 S.W. 539 (Tex. 1910)).
Id. (citing Burckhalter v. Conyer, 9 S.W.2d 1029 (Tex. Comm’n App.
24

1928); Pittman, 112 S.W. at 102).
25 Id. (citing Davis v. State, 35 Tex. 118 (1871)).
Id. (citing State v. De Silva, 145 S.W. 330 (Tex. 1912); Tex. Liquor
26

Control Bd. v. Jones, 112 S.W.2d 227 (Tex. App.—Texarkana 1937, no writ)).

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receivership is generally a remedy rather than a separate cause and is
imposed and administered in ongoing proceedings incidental or
ancillary to a cause, with a jury available to try disputed issues of fact
in that cause. See, e.g., TEX. CIV. PRAC. & REM. CODE §§ 31.002(b),
62.001, 62.061, 64.001; Cocke v. Southland Life Ins. Co., 75 S.W.2d 194,
198 (Tex. App.—El Paso 1934, writ ref’d) (concluding right to jury did
not extend to “incidental and supplemental hearing” on final accounting
of receiver appointed following default judgment).
In San Jacinto Oil, we upheld the constitutionality of a statute
providing for the appointment of masters in chancery in receivership
proceedings. 101 S.W. at 199. We explained that “[n]o right of trial by
jury is involved in” the “appoint[ment of] a master in chancery to
investigate and report upon such matters as are submitted” by the court.
Id. at 198. These matters include the receiver’s management and
operation of receivership property as directed by the court. E.g.,
McHenry v. Bankers’ Tr. Co., 206 S.W. 560, 572 (Tex. App.—Galveston
1918, writ ref’d). But San Jacinto Oil went on to hold that the right “[t]o
still demand a jury to try the issues of fact” following the master’s report
“is a right secured to [the appellants] by the constitutional and statutory
provisions before cited.” 101 S.W. at 199. 27

27 See also Citizens St. Bank of Sealy v. Caney Invs., 746 S.W.2d 477,
478 (Tex. 1988) (per curiam) (holding party entitled to jury trial on request to
enjoin it from foreclosing on receivership property); Ex parte Harvill, 415
S.W.2d 174, 176 (Tex. 1967) (holding party entitled to jury trial on receiver’s
claim to property); Arlington Heights Realty Co. v. Citizens’ Ry. & Light Co.,
160 S.W. 1109, 1117 (Tex. App.—Amarillo 1913, no writ) (relying on San
Jacinto Oil for the proposition that “the trial judge did not err in submitting
as many or all of the matters as he saw fit to the master, because there was

15
 Wills and estate administration provide another example. We
have held that a will contest did not require a jury trial in county court
because one was available on trial de novo in district court. Cockrill, 65
Tex. at 674; see also Ex parte Allison, 90 S.W. at 871 (holding statute
authorizing court to enjoin public nuisance did not violate jury-trial
guarantee because “[b]efore the injunction could be made perpetual
under the statute in question it is the right of the defendant to have the
jury pass upon the facts”).
As to estate administration, a court handling a dependent
administration exercises control over the personal representative and
estate that is at least as extensive as the control it has over a receiver
and receivership property, and the court also exercises substantial
control over certain aspects of an independent administration. 28 Yet in
Davis v. Davis, we narrowly construed a statute that had generally
committed all probate matters to the court’s discretion and denied a
right to trial by jury, concluding that this construction rendered the
statute constitutional. 34 Tex. 15, 24 (1871); see Cockrill, 65 Tex. at 673.
Davis held that this statute applied only “to the ordinary business
of the probate court, when there is no contest or issue of fact to be tried,”
and that “should a contest arise in the probate court, and an issue of fact
be joined, . . . then the constitution becomes the law, expressly providing

reserved to appellant the right to except to any and all of the master’s findings,
whether of fact or law, and have the questions of fact passed upon by a jury
under a proper charge by the court”).
28 See, e.g., TEX. EST. CODE chs. 301, 305, 306, 309, 351, 355–360, 362,
402; Eastland v. Eastland, 273 S.W.3d 815, 821–22 (Tex. App.—Houston [14th
Dist.] 2008, no pet.).

16
for a jury.” 34 Tex. at 24. As we explained, the jury-trial provisions of
the Judiciary Article are part “of the fundamental law of the state [that
is] binding upon the people and courts, and even the legislature has no
authority, by statutory enactment or otherwise, to . . . abridge or deny
that right.” Id. at 23–24. We also concluded in Davis and subsequent
cases that probate matters such as a will contest, the right of a decedent
to dispose of property, the rights of heirs, and the grant of letters of
administration can turn on factual disputes to be resolved by a jury at
some point in the judicial process. Id. at 24; see also Cockrill, 65 Tex. at
672–74; Tolle v. Tolle, 104 S.W. 1049, 1049–50 (Tex. 1907). As we
observed in Tolle, whether a jury trial is constitutionally required “is not
a question of the nature of the contest, but, merely, is there a matter of
fact for a jury to determine?” 104 S.W. at 1050.
Fourth, if a separate provision of the Constitution authorizes a
court to decide the issue—as it does with election contests,
administrative appeals, child custody determinations, removal of
sheriffs, and supervision of county commissioners—then the disputed
matter is not tried to a jury unless a statute provides otherwise. Tex.
Ass’n of Bus., 852 S.W.2d at 451; Hammond v. Ashe, 131 S.W. 539 (Tex.
1910); Davis, 35 Tex. at 123–24; Henry v. Sullivan, 499 S.W.3d 545, 551,
553, 556–57 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)
(applying Article V, section 8 regarding supervision of county
commissioners). 29

29 Regarding suits to remove a sheriff, see TEX. CONST. art. V, § 23.

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 As to election contests, an 1891 amendment to Article V of the
Constitution provided that “[t]he district court shall have original
jurisdiction of contested elections.” See Ashford v. Goodwin, 131 S.W.
535, 537 (Tex. 1910) (quoting TEX. CONST. of 1876, art. V, § 8 (1891)).
We held in Hammond that “the right of trial by jury does not exist” for
such contests because the language of the amendment “does not embrace
contested elections as ‘causes’ in which the right of trial by jury is
secured.” 131 S.W. at 539. In other words, “[t]he grant in the
Constitution of jurisdiction to hear contests of elections . . . does not
convert such contests into ‘causes,’ as that term is used in the provision
of the Constitution referred to, nor make them other than proceedings
specially created and controlled by the statutes which allowed them.”
Id.
Our holdings on the right to trial by jury in administrative
appeals likewise were impacted by independent constitutional
authority. “In Corzelius [v. Harrell, 186 S.W.2d 961 (Tex. 1945)], we
concluded that certain judicial functions, including fact finding, may be
delegated constitutionally by the legislature to administrative agencies
in furtherance of the preservation and conservation of the state’s
natural resources” under “article XVI, section 59(a) of our constitution.”
Tex. Ass’n of Bus., 852 S.W.2d at 451. 30
Another example is child custody cases prior to the Legislature’s
1961 decision to mandate jury trials by statute. Many courts held that

30 See also De Silva, 145 S.W. at 333 (“The state had the power to
prescribe the manner of enforcing the law by revoking a license granted, which
action was not judicial, but administrative or ministerial.”).

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separate provisions of the Constitution authorized a judge to decide the
custody issue. Some courts based their no-jury holdings on a prior
version of the Judiciary Article, which granted district courts “original
jurisdiction and general control over . . . minors.” TEX. CONST. art. V,
§ 8 (amended 1973 and 1985). 31 In addition, Credit Bureau refers to
cases involving “habeas corpus proceedings for the custody of minor
children,” 530 S.W.2d at 293, and the Constitution grants district courts
distinct jurisdiction to issue writs such as habeas corpus without a jury.
TEX. CONST. art. I, § 12; id. art. V, § 8; Grimm v. Garner, 589 S.W.2d
955, 956 (Tex. 1979); Pittman v. Byars, 112 S.W. 102, 104 (Tex. Civ.
App.—Austin 1908, no writ), cited with approval in White, 196 S.W. at
514.
* * *
With these observations, I join the Court’s opinion. And I look
forward to a robust dialogue about the meaning and implementation of
our vital constitutional guarantees of trial by jury.

31 See, e.g., Noble v. Noble, 185 S.W. 318, 319 (Tex. App.—Austin 1916,
no writ) (“Under section 8, art. 5, of our state Constitution, original jurisdiction
and general control is given to the district court over minors, under such
regulations as may be prescribed by law. . . . [W]e think, under the section of
the Constitution above quoted, that the court had the authority . . . to award
such custody to any suitable person . . . .”); Green v. Green, 146 S.W. 567, 569
(Tex. App.—Amarillo 1912, writ dism’d) (holding that welfare of minor child
“has always been of such paramount importance, both to it and society, as to
require at the hands of some branch of government a supervisory control, . . .
and under our system, as well as our Constitution, this power is exclusively
vested in the district courts and the judges thereof, as is expressly provided in
article 5, § 8, of our state Constitution”).

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 J. Brett Busby
Justice

OPINION DELIVERED: June 17, 2022

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