Opinion
No. 10-15-00318-CV
01-14-2016
IN THE INTEREST OF B.P., A CHILD
From the County Court at Law Bosque County, Texas
Trial Court No. CV14071
MEMORANDUM OPINION
In one issue, appellant, R.P., challenges the trial court's judgment terminating his parental rights to his daughter, B.P. Because we conclude that the trial court did not abuse its discretion in denying R.P.'s jury demand, we affirm.
I. BACKGROUND
Here, the Texas Department of Family and Protective Services (the "Department") filed a petition seeking the involuntary termination of R.P.'s parental rights to B.P. The Department alleged numerous predicate violations under section 161.001 of the Texas Family Code and asserted that termination was in the best interest of B.P. See TEX. FAMILY CODE ANN. § 161.001 (West Supp. 2015). After a bench trial, the trial court signed a judgment terminating R.P.'s parental rights under subsections 161.001(b)(1)(D), (E), (F), (N), (O), and (Q) and found that terminating R.P.'s parental rights was in the best interest of B.P. See id. It is from this judgment that R.P. now appeals.
In its original petition, the Department also sought to terminate the parental rights of B.P.'s mother, C.P. The trial court determined that C.P.'s parental rights should also be terminated. C.P. is not a party to this appeal.
II. THE JURY DEMAND
In his sole issue on appeal, R.P. asserts that the trial court erred in denying his right to a trial by jury when he was not afforded adequate time to comply with Texas Rule of Civil Procedure 216. See TEX. R. CIV. P. 216. The Department responds that the trial court did not abuse its discretion in denying R.P.'s oral request for a jury trial because the request was not made in writing at least thirty days prior to trial.
A. Applicable Law
A written request for a jury trial must be made "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(a); see, e.g., In re J.T., Nos. 10-15-00101-CV & 10-15-00108-CV, 2015 Tex. App. LEXIS 10870, at *8 (Tex. App.—Waco Oct. 22, 2015, no pet.) (mem. op.). The trial court has discretion to deny a jury trial in the absence of a timely request for a jury or payment of the applicable jury fee. See Monroe v. Alternatives in Motion, 234 S.W.3d 56, 69-70 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985) (op. on reh'g) (per curiam)); see also In re J.T., 2015 Tex. App. LEXIS 10870, at *8. But, a trial court should grant a jury demand, even if it is untimely, if doing so would not interfere with the trial court's docket, delay the trial, or injure the other party. Monroe, 234 S.W.3d at 70. To prevail on appeal, the complaining party bears the burden to show that the untimely demand would not interfere with the trial court's docket or prejudice the other side. See In re D.R., 177 S.W.3d 574, 579-80 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) ("[The requesting parties] have not demonstrated that a jury trial . . . would not have interfered with the court's docket, delayed the trial, or prejudiced the other parties.").
Specifically, Texas Rule of Civil Procedure 216(a) provides that:
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.TEX. R. CIV. P. 216(a) (emphasis added).
B. Facts
On March 28, 2014, the trial court appointed attorney Brittany Lannen, to represent R.P., who was incarcerated at the time. At a permanency hearing conducted in November 2014, the trial court set the matter for trial on February 19, 2015. The order signed at the conclusion of the November 2014 permanency hearing reflects that Lannen was present for the hearing. At a hearing on January 22, 2015, which was attended by Lannen, the trial court reset the trial to August 20, 2015. Though the record is silent about the circumstances, on July 29, 2015, Luke Giesecke began representing R.P. On August 17, 2015, Giesecke filed a written motion for continuance, seeking to reset the impending August 20, 2015 trial date because he had been appointed to represent R.P. "less than one month before the final hearing." Notably, Giesecke did not request a continuance to make a jury demand.
Nevertheless, at the hearing on August 20, 2015, Giesecke urged his written motion for continuance, which the trial court granted, and orally requested a jury trial, which the trial court denied as untimely. At the final hearing on the merits, conducted on September 10, 2015, Giesecke re-urged his oral request for a jury trial. Once again, the trial court denied the request. The record does not show that R.P. has filed a written jury demand in this matter.
According to Giesecke, he first spoke with R.P. at the Bosque County jail on the day before the August 20, 2015 hearing. Giesecke noted that during this conversation, R.P. indicated for the first time that he wanted a jury trial.
C. Discussion
As noted above, R.P. was represented by counsel at all times since March 28, 2014. Moreover, the record indicates that Giesecke was appointed to represent R.P. on July 29, 2015, and that the final trial on this matter was conducted more than thirty days later on September 10, 2015. However, no written jury demand has ever been filed by R.P.'s trial attorneys. We also note that, in his oral jury demand, Giesecke did not show that the granting of his request would not interfere with the trial court's docket, delay the trial, or injure the opposing parties. See Monroe, 234 S.W.3d at 70. In fact, the attorney for the Department argued the following:
Judge, again, the Department has an objection to jury trial just based on the fact that it wasn't timely filed. [R.P.] has had counsel throughout the pendency of the case, he's been incarcerated. And we are asking [t]he Court to deny that right to jury trial and let the bench hear that today just so this child can move on and have closure in her life.
Because the record does not show that R.P. timely filed a written jury demand, we cannot say that the trial court abused its discretion in denying his oral request for a jury trial. See TEX. R. CIV. P. 216(a); Huddle, 696 S.W.2d at 895; Monroe, 234 S.W.3d at 69-70; see also In re J.T., 2015 Tex. App. LEXIS 10870, at **8-9. We overrule R.P.'s sole issue on appeal.
In any event, R.P. relies on the In re J.C. case out of the Texarkana Court of Appeals to support an argument that his oral jury demand should have been deemed timely because compliance with Texas Rule of Civil Procedure 216 was impossible given how late Giesecke was appointed to the case. See 108 S.W.3d 914, 916-17 (Tex. App.—Texarkana 2003, no pet.). Irrespective of the fact that R.P. was represented by counsel throughout this matter and that either of R.P.'s trial attorneys could have filed a written jury demand in a timely manner, the fact remains that R.P.'s jury demand is noncompliant with Rule 216 because he never filed a written jury demand. See TEX. R. CIV. P. 216(a); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990 (stating that it is the duty of the appellate court to uphold the trial court's ruling on any theory of law applicable to the case that is supported by the evidence); see also In re A.C., Nos. 10-15-00192-CV & 10-15-00193-CV, 2015 Tex. App. LEXIS 10882, at *30 (Tex. App.—Waco Oct. 22, 2015, no pet.) (mem. op.) (same). --------
III. CONCLUSION
We affirm the judgment of the trial court.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed January 14, 2016
[CV06]