PROCEDURAL WAIVER - FAILURE TO TIMELY DEMAND JURY TRIAL
Under Texas Rule of Civil Procedure 216, to make a proper request for a jury trial, 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. TEX. R.
CIV. P. 216 (“No jury trial shall be had in any civil suit, unless a written request for a jury trial is filed with
the clerk of the court 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.”); In re V.R.W., 41 S.W.3d 183, 194 (Tex. App.—Houston [14th
Dist.] 2001, no pet.) (“In civil cases, the right of a jury trial is not automatic, but, rather, arises only where a
party has demanded it and paid the applicable jury fee.”), disapproved on other grounds by In re J.F.C.,
96 S.W.3d at 267. It is within the discretion of the trial court to deny a jury trial if the party requesting the
jury trial does so less than thirty days before trial. Martin v. Black, 909 S.W.2d 192, 197 (Tex. App.—
Houston [14th Dist.] 1995, writ denied). An untimely jury demand may be granted by the trial court if the
request will not: (1) interfere with the court’s docket; (2) delay the trial; or (3) injure the opposing party.
Hayes v. Wells Fargo Bank, N.A., No. 01-06-00720-CV, 2007 WL 3038043, at *6 (Tex. App.—Houston [1st
Dist.] Oct. 18, 2007, pet. denied). We review the trial court’s denial of a jury demand under an abuse of
discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).
We review the trial court‘s denial of a jury demand for an abuse of discretion. Mercedes-Benz Credit Corp.
v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). We examine the entire record, and will conclude that the trial
court abused its discretion only if the trial court‘s decision is arbitrary, unreasonable, and without reference
to guiding principles. Id.
We recognize that ―[t]he right to a jury trial is one of our most precious rights, holding "a sacred place in
English and American history.‘" Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997). But in a
civil case, the right to a jury trial arises only when a party files a written jury request not less than thirty
days in advance of the date set for trial and pays the jury fee. TEX. R. CIV. P. 216. A trial court does not
abuse its discretion by denying a jury trial when there was no timely request. Huddle v. Huddle, 696 S.W.
2d 895, 895 (Tex. 1985); see Martin v. Black, 909 S.W.2d 192, 197 (Tex. App.–Houston [14th Dist.] 1995,
writ denied). However, Texas courts have held that a trial court ―should accord the right to jury trial if it
can be done without interfering with the court‘s docket, delaying the trial, or injuring the opposing party.‖
Gayle, 951 S.W.2d at 476.
TEXAS SUPREME COURT CASES ON CONTRACTUAL JURY WAIVER
In Re Bank of America, N.A. (Tex. Feb. 27, 2009)(per curiam)(mandamus)
(contractual jury waiver enforced by mandamus, conspicuousness of waiver, knowing and voluntary
waiver) IN RE BANK OF AMERICA, N.A.; from Tarrant County; 2nd district (02-05-00397-CV, 232 SW3d
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.
Per Curiam Opinion
(Justice Johnson not sitting)
TEXAS COURTS OF APPEALS CASE LAW ON JURY WAIVERS
The right to a trial by jury shall remain inviolate. Tex. Const. art. V, §10. However, Texas law does not
prohibit a party from contractually waiving its constitutional right to a trial by jury. In re Prudential Ins. Co. of
America, 148 S.W.3d at 132-33. Contractual jury waivers do not violate public policy and are enforceable.
Id. at 129-33. Parties frequently waive their right to a jury trial whether contractual or otherwise. See
generally In re Wells Fargo Bank Minnesota N.A., 115 S.W.3d 600, 606 (Tex.App.–Houston 14th Dist.]
2003, orig. proceeding) (agreeing to a bench trial [citations omitted], failing to timely pay a jury fee
[citations omitted], failing to timely request a jury trial [citations omitted], failing to appear for trial [citations
omitted], and failing to object to a bench trial despite a properly perfected jury request [citations omitted]).
Texas allows parties to contractually waive the right to a jury trial by enforcing arbitration agreements. Id.
at 607 (citing Massey v. Galvan, 822 S.W.2d 309, 318 (Tex.App.–Houston [14th Dist.] 1992, writ denied)
(“[i]t is clear that when a party agrees to have a dispute resolved through arbitration rather than a judicial
proceeding, that party has waived its right to a jury trial.”)
In Re J.W. Resources Exploration and Development (Tex.App.- Amarillo, Aug. 25, 2009)(Pritle)(mandamus
against order compelling arbitration denied)(jury waiver, fraudulent inducement argument against
enforcement of arbitration clause fails)
MOTION OR WRIT DENIED: Opinion by Justice Pirtle
Before Chief Justice Quinn, Justices Hancock and Pirtle
07-09-00189-CV In Re J.W. Resources Exploration and Development, Inc., Joe Watkins, and Jim
Additionally, the Supreme Court recently rejected treating a waiver of a jury trial differently than arbitration
clauses. See In re Bank of America, N.A., 278 S.W.3d 342, 343-44 (Tex. 2009) (per curiam). The Court
clarified In re Prudential Ins. Co. of America, 148 S.W.3d 124 (Tex. 2004), and held that it does not impose
a presumption against jury waivers that places the burden on the party seeking enforcement to prove that
the waiver was executed knowingly and voluntarily. In re Bank of America, N.A., 278 S.W.3d at 346.
A conspicuous jury waiver provision is prima facie evidence of a knowing and voluntary waiver and shifts
the burden to the opposing party to rebut it. In re General Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex.
2006) (per curiam). The Court has always presumed that a party who signs a contract knows its contents.
In re Bank One, N.A., 216 S.W.3d 825, 826 (Tex. 2007). As long as there is a conspicuous waiver
provision, Relators are presumed to know what they were signing. “[P]arties strike the deal they choose to
strike and, thus, voluntarily bind themselves in the manner they choose. And, that is why parties are bound
by their agreement as written.” Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex.App-Amarillo
2000, no pet.). The jury waiver provision included in the arbitration clause is in all capital letters and
stands out from the language pertaining to arbitration. It is sufficiently conspicuous to serve as prima facie
evidence that Relators, Watkins and Blankenship, who both executed the Agreement, knowingly and
voluntarily waived their right to a jury trial.
Texas Causes of Action and Defenses | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams | Texas
Caselaw Topics Pages | Texas Opinions Homepage |