Summary
finding that Texas courts have denied the right to a jury trial under the Judiciary Article by creating "ad hoc , ‘case-by-case’ exceptions that deem juries ‘unsuitable’ based on ‘isolated’ ‘[s]pecial circumstances’ rather than any coherent analytical framework"
Summary of this case from In re Troy S. Poe Tr.Opinion
No. 20-0179
06-17-2022
In the MATTER OF TROY S. POE TRUST
Samuel S. Sipes, El Paso, Rachel Anne Ekery, Houston, Wallace B. Jefferson, Austin, Nicholas B. Bacarisse, Joseph L. Hood Jr., El Paso, for Petitioner Bock, Anthony E. John P. Mobbs, Stancy Stribling, El Paso, for Petitioner Troy S. Poe, named beneficiary of the Troy S. Poe Trust. Michael J. Collins, William A. Brewer III, Robert Mark Millimet, Dallas, Michael J. Shane, El Paso, Craig T. Enoch, Austin, James Michael Stanton, Dallas, Shelby L. O'Brien, Austin, for Respondent.
Samuel S. Sipes, El Paso, Rachel Anne Ekery, Houston, Wallace B. Jefferson, Austin, Nicholas B. Bacarisse, Joseph L. Hood Jr., El Paso, for Petitioner Bock, Anthony E.
John P. Mobbs, Stancy Stribling, El Paso, for Petitioner Troy S. Poe, named beneficiary of the Troy S. Poe Trust.
Michael J. Collins, William A. Brewer III, Robert Mark Millimet, Dallas, Michael J. Shane, El Paso, Craig T. Enoch, Austin, James Michael Stanton, Dallas, Shelby L. O'Brien, Austin, for Respondent.
Justice Huddle delivered the opinion of the Court.
The question before us is whether parties seeking or opposing a trust modification under Texas Trust Code Section 112.054 have a right to a trial by jury. Here, the probate court modified a trust under Section 112.054 but denied a trustee's demand for a jury trial. The court of appeals reversed, holding that the Trust Code conferred a right to a jury trial and that denial of the trustee's jury demand was harmful error. The court of appeals reasoned that the Trust Code "generally provides for jury trials" by incorporating the Texas Rules of Civil Procedure, which in turn set forth the procedures for requesting a jury. We hold that there is no statutory right to a jury trial in a Section 112.054 judicial trust-modification proceeding. Accordingly, we reverse and remand for the court of appeals to address in the first instance petitioners’ constitutional argument—not raised until the motion for rehearing in the court of appeals—that a Section 112.054 judicial trust-modification proceeding is not a "cause" within the meaning of Article V, Section 10 of the Texas Constitution but, rather, a "special proceeding" falling outside its purview.
I. Background
A. Dick establishes the Troy S. Poe Trust
Richard C. "Dick" Poe established the Troy S. Poe Trust in 2007 to provide for his son, Troy, who has cerebral palsy and requires round-the-clock care. The trust designates three trustees: (1) Dick; (2) Dick's other son, Richard C. Poe II ; and (3) Dick's longtime accountant, Anthony Bock. The trust has significant net assets and produces enough income that there has been no need to invade the trust corpus in the years since it was formed. Troy is the trust's sole beneficiary. Upon Troy's death, the trust will terminate, and the corpus must be distributed to Dick's issue; currently, Dick's only living issue are Troy and Richard.
For simplicity's sake, we (like the court of appeals) refer to the father as "Dick" and the son as "Richard."
A few trust provisions are relevant to this dispute. For one, the trust mandates that the trustees act "jointly," which the parties all agree imposes a unanimity requirement on their decision-making regarding trust administration. Further, in the event a trustee can no longer serve, the remaining trustee or trustees shall serve without appointment of a successor. And if no trustee remains, a designated bank will serve as sole trustee.
The trust is a party to a long-term Care Agreement that sets forth the terms under which Troy's caregiver, Angel Reyes, will care for Troy and be compensated for doing so. Under that agreement, Reyes lives with and provides full-time care to Troy in a home that Dick built. On top of meeting Troy's day-to-day needs, Reyes's duties include ensuring that Troy enjoys "a wholesome and healthy home environment," "companionship," and "social interaction and entertainment to the extent possible." In exchange, the agreement provides that Reyes shall be paid a salary and reimbursed for "reasonable out-of-pocket expenses for Troy's care." But reimbursement is subject to a monthly cap, and Reyes must document expenses.
The original Care Agreement was for a ten-year term. It was renewed for another ten years in 2015.
The agreement initially capped monthly reimbursements at $1,500, subject to periodic increases. By the time of trial, the cap had increased to $1,613.
B. During his lifetime, Dick effectively acts as sole trustee
Before his death, Dick administered the trust essentially on his own, often making decisions without consulting Richard or Bock, the two other trustees. For example, Dick unilaterally authorized the trust's reimbursement of expenses Reyes incurred in connection with Troy's social activities. And Dick sometimes approved reimbursements of Reyes's expenses that exceeded the monthly cap. Though the trust required that the three trustees act "jointly," no one complained about Dick's unilateral administration of the trust.
With Reyes's assistance, Troy enjoys an active social life. He skis, swims, and frequently hosts friends in his home. Troy also has travelled extensively.
C. Multiple disputes arise after Dick's death
Things changed dramatically after Dick's death. At first, Bock unilaterally administered the trust, and he largely sought to mirror Dick's past practices. But Bock and Richard's relationship deteriorated not long thereafter. Bock served as co-executor of Dick's estate and, as Dick's longtime accountant, had extensive knowledge of Dick's financial matters. Richard formed the opinion that Bock was acting improperly and against Richard's interests. This adversity led Richard to sue Bock and seek revocation of Bock's CPA license.
Their animosity spilled over to trust matters. Richard's attorney demanded that Bock "strictly comply" with the trust's requirement that the co-trustees "act jointly." Richard asserted that Bock should take no further actions on behalf of the trust without obtaining Richard's consent. In particular, Richard demanded that Bock not make any "unilateral decisions ... in connection with the Care Agreement."
Bock began including Richard in the trust's decision-making, but, due to their fraught relationship, they had difficulty reaching agreement on some matters. Richard denied Bock's request to preapprove recurring expenses, and Richard complained that Bock was late in submitting bills. He accused Bock of stealing and balked at expenses he believed benefitted Reyes's family and friends rather than Troy himself. For his part, Bock contended that Richard ignored and delayed responding to requests for approval of trust expenditures. Fueled by these and other disputes unrelated to the trust, their relationship fractured to the point that Bock refused to communicate with Richard orally.
D. Bock requests trust modification
Bock filed a petition in the probate court seeking modification of the trust under Texas Trust Code Section 112.054. Section 112.054 empowers a court, on the petition of a trustee or beneficiary, to modify the trust's terms if any one of five conditions is met. TEX. PROP. CODE § 112.054(a). Bock alleged that two of the statute's five conditions were met: "(1) the purposes of the trust have been fulfilled or have become illegal or impossible to fulfill" and "(2) because of circumstances not known to or anticipated by the settlor, the [modification] order will further the purposes of the trust." Id. § 112.054(a)(1), (2). Bock alleged that "differences of opinion" and the "pending litigation" between Bock and Richard made it difficult to act unanimously, put a strain on Troy, and made the purposes of the trust "impossible to accomplish." Bock requested that the court modify the trust to add a third trustee, remove the unanimity requirement, and further specify the relevant considerations governing the trustees’ distributions. Bock also requested that the court ratify his actions regarding the trust since Dick's death.
The Texas Trust Code was enacted in 1983 as Subtitle B of Title 9 of the Texas Property Code, and it currently comprises Sections 111.001 through 117.012 of the Property Code. See Act of May 27, 1983, 68th Leg., R.S., ch. 567, art. 2, § 2, 1983 Tex. Gen. Laws 3269, 3332. Accordingly, while we refer to provisions of the Trust Code, our citations are to the Property Code.
Troy, acting through his court-appointed guardian ad litem and attorney ad litem, supported the modification request. Richard opposed modification and counterclaimed against Bock for breach of trust. Richard also demanded a jury trial on all triable issues.
E. The probate court modifies the trust
The probate court denied Richard's jury demand and conducted a two-day bench trial solely on Bock's request for a trust modification. The probate court found that, because of "changed circumstances" since Dick's death, "the purposes of the Trust have become impossible to fulfill, and modification will further the Trust purposes." The court also effected several changes to the trust's terms and entered an Order Modifying Trust, which:
• appointed a third trustee to replace Dick;
• required at least three trustees and provided a method for appointing successor trustees;
• eliminated the requirement that the trustees act "jointly" and permitted decisions to be made by majority vote;
• authorized trustees to pay expenses associated with periodic vacations for Troy's benefit and associated expenses for assistants or travel companions;
• required trustees, in making distributions from the trust, to consider Troy's standard of living at the time of Dick's death and the fact that, to accomplish that standard of living, it is often necessary to include substantial ancillary expenses;
• acknowledged that there will be "indirect benefit" to Troy's caregivers, their families, and Troy's family, and required trustees to consider these additional expenses that enhance the quality and enjoyment of Troy's life; and
• required trustees, in making distributions from the trust, to give "primary consideration" to Troy's needs and interests "without giving any consideration to ... any vested or contingent remainder beneficiaries."
The probate court severed the remaining claims, including Richard's counterclaim, and the modification order became a final judgment.
F. The court of appeals reverses and remands for a jury trial
Richard appealed, arguing that (1) he was erroneously denied a trial by jury, and (2) the modifications were improper because they contravened Dick's intent. The court of appeals reversed without addressing the propriety of the modifications because it concluded that the trial court's refusal to grant a jury trial amounted to harmful error. 591 S.W.3d 168, 182 (Tex. App.—El Paso 2019). The court of appeals noted, without analysis, that Article V, Section 10 of the Texas Constitution provides a jury right in "causes" and that the Legislature is authorized by Article I, Section 15 to regulate jury trials. Id. at 177. It then "look[ed] to the statutory framework to determine whether parties possess a right to a jury trial." Id. It reasoned that Trust Code Section 115.012 "generally provides for jury trials" in actions brought under the Trust Code. Id. at 178 ; see TEX. PROP. CODE § 115.012 ("Except as otherwise provided, all actions instituted under this subtitle are governed by the Texas Rules of Civil Procedure and the other statutes and rules that are applicable to civil actions generally."). According to the court of appeals, Section 115.012 ’s general adoption of the Rules of Civil Procedure incorporates rules setting forth procedures for requesting a jury and thus provides a right to a jury trial unless a different statutory provision precludes a jury in a particular circumstance. 591 S.W.3d at 178.
Bock and Troy sought rehearing, challenging the court of appeals’ statutory analysis and arguing, for the first time, that no jury right attaches in a Section 112.054 judicial trust-modification proceeding because it is a "special proceeding" outside the scope of Article V, Section 10 of the Texas Constitution. The court of appeals denied rehearing, and both Bock and Troy petitioned for review.
II. Discussion
Bock and Troy contend that the probate court properly declined to submit any issue to the jury because neither the Trust Code nor the Texas Constitution provides a right to trial by jury in a judicial trust-modification proceeding. We first consider whether Richard had a statutory jury right. See VanDevender v. Woods , 222 S.W.3d 430, 432 (Tex. 2007) ("Judicial restraint cautions that when a case may be decided on a non-constitutional ground, we should rest our decision on that ground and not wade into ancillary constitutional questions.").
A. The Trust Code does not create a jury right in a judicial trust-modification proceeding.
Before the enactment of the Trust Code, courts derived authority to modify trusts under the "rule or doctrine of deviation implicit in the law of trusts." Amalgamated Transit Union, Loc. Div. 1338 v. Dall. Pub. Transit Bd. , 430 S.W.2d 107, 117 (Tex. App.—Dallas 1968, writ ref'd n.r.e.). Under this doctrine, a court had the power to "order a deviation from the terms of the trust if it appears to the court that compliance with the terms of the trust is impossible, illegal, impractical or inexpedient, or that owing to circumstances not known to the settlor and not anticipated by him, compliance would defeat or substantially impair the accomplishment of the purpose of the trust." Id. ; see also Smith v. Drake , 94 S.W.2d 236, 238 (Tex. App.—Austin 1936, no writ) (citing RESTATEMENT (FIRST) OF TRUSTS § 167 ( AM. L. INST. 1935) ).
In enacting Section 112.054, the Legislature essentially codified the doctrine of deviation. Section 112.054, titled "Judicial Modification, Reformation, or Termination of Trusts," currently provides that "[o]n the petition of a trustee or a beneficiary, a court may order" certain changes to a trust. TEX. PROP. CODE § 112.054(a). But, before a court may do so, one or more enumerated statutory predicates must be shown:
See Melissa J. Willms, Decanting Trusts: Irrevocable, Not Unchangeable , 6 Est. Plan. & Cmty. Prop. L.J. 35, 45 (2013) (explaining that "the Texas legislature enacted a statutory provision adopting the doctrine of deviation, as stated in § 167 of the Second Restatement of Trusts and in [Amalgamated ]"); State Bar of Tex., Guide to the Texas Trust Code, at 10 (3d ed. 1996) ("Section 112.054 adopts, in broad terms, the doctrine of deviation.").
(1) the purposes of the trust have been fulfilled or have become illegal or impossible to fulfill;
(2) because of circumstances not known to or anticipated by the settlor, the order will further the purposes of the trust;
(3) modification of administrative, nondispositive terms of the trust is necessary or appropriate to prevent waste or impairment of the trust's administration;
(4) the order is necessary or appropriate to achieve the settlor's tax objectives or to qualify a distributee for governmental benefits and is not contrary to the settlor's intentions; or
(5) subject to Subsection (d):
(A) continuance of the trust is not necessary to achieve any material purpose of the trust; or
(B) the order is not inconsistent with a material purpose of the trust.
Relief under subsection (a)(5) is not permitted "unless all beneficiaries of the trust have consented to the order or are deemed to have consented to the order." Tex. Prop. Code § 112.054(d).
If one or more of these predicates is established, a court is empowered to order "that the trustee be changed, that the terms of the trust be modified, that the trustee be directed or permitted to do acts that are not authorized or that are forbidden by the terms of the trust, [or] that the trustee be prohibited from performing acts required by the terms of the trust." Id. § 112.054(a). But this statutory power is not unbounded. Section 112.054(b) requires a court to exercise its discretion to order a modification "in the manner that conforms as nearly as possible to the probable intention of the settlor." Id. § 112.054(b).
Section 112.054 does not confer a right to a jury trial in a judicial trust-modification proceeding. Indeed, the heading contemplates "Judicial Modification" and the text does not mention a jury at all. Id. § 112.054 (emphasis added). Instead, the statute repeatedly references the "court," "its discretion," and "its decision." Id. § 112.054(a), (b). There is no indication in the text that the Legislature intended to confer a jury-trial right in these proceedings. See Broadway Nat'l Bank v. Yates Energy Corp. , 631 S.W.3d 16, 23 (Tex. 2021) ("Our objective in construing a statute is to effectuate the Legislature's intent as we find it in the statute's text."). All the textual evidence shows it did not.
Richard argues that the statute is merely "silent" on the right to a jury, and that this silence is no indication that the Legislature intended to deny a jury right. He contrasts Section 112.054 with other statutes in which the Legislature expressly precluded the use of a jury. See, e.g. , TEX. FAM. CODE § 105.002(b) (instructing that "[a] party may not demand a jury trial" in suits "in which adoption is sought" or "to adjudicate parentage"). But the Legislature also knows how to create a statutory jury right. Cf. id. § 105.002(a) ("Except as provided by Subsection (b), a party may demand a jury trial."). And there is no textual indication that it has done so here.
Unable to discern a right to a jury trial from the text of Section 112.054, the court of appeals reasoned that the Trust Code "generally provides for jury trials." 591 S.W.3d at 178. For that proposition, it relied on Section 115.012, which is titled "Rules of Procedure" and states: "Except as otherwise provided, all actions instituted under this subtitle [the Trust Code] are governed by the Texas Rules of Civil Procedure and the other statutes and rules that are applicable to civil actions generally." TEX. PROP. CODE § 115.012. According to the court of appeals, the rules "outline how one requests a jury" and "[c]ompliance with those rules would thus give Richard a right to a jury trial." 591 S.W.3d at 178.
We disagree. Nothing in the text of Section 115.012 can be understood to establish a jury right. Section 115.012 simply states that actions brought under the Trust Code are controlled by the ordinary procedures for civil actions. The court of appeals correctly noted that the rules articulate procedures for requesting a jury. See TEX. R. CIV. P. 216 (titled "Request and Fee for Jury Trial"). But as we have explained, these procedural requirements are "prerequisites to a jury trial, not guarantees of one." In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 130 (Tex. 2004). Such rules merely reflect that a jury right in a civil case is "not self-executing" and that a litigant must take certain steps "to invoke and perfect" his jury right. Sunwest Reliance Acquisitions Grp., Inc. v. Provident Nat'l Assurance Co. , 875 S.W.2d 385, 387 (Tex. App.—Dallas 1993, no writ). They presume that the litigant has a jury right to invoke in the first place.
The Trust Code's incorporation of the Rules of Civil Procedure cannot be construed to create a jury right where one does not already exist. The procedures established by those rules are "not meant to alter the parties’ ... right to a jury trial." Sw. Refin. Co. v. Bernal , 22 S.W.3d 425, 437 (Tex. 2000) (discussing TEX. R. CIV. P. 42 ); see also TEX. R. CIV. P. 815 ("These rules shall not be construed to enlarge or diminish any substantive rights or obligations of any parties to any civil action."). In short, no right to a jury trial in a judicial trust-modification proceeding was created by Trust Code Section 112.054, Trust Code Section 115.012, or the Texas Rules of Civil Procedure, whether they are viewed alone or in combination.
B. The court of appeals did not confront the novel constitutional question petitioners raise.
The Texas Constitution provides "two guarantees of the right to trial by jury" in civil proceedings. Barshop v. Medina Cnty. Underground Water Conservation Dist. , 925 S.W.2d 618, 636 (Tex. 1996). The Bill of Rights ensures that the "right of trial by jury shall remain inviolate." TEX. CONST. art. I, § 15. Our cases have said, and the parties here do not dispute, that this provision maintains a jury right for the sorts of actions tried by jury when the Constitution was adopted and, thus, "only applies if, in 1876, a jury would have been allowed to try the action or an analogous action." Barshop , 925 S.W.2d at 636.
At the time of the Constitution's adoption, there was no common-law right to a jury trial in equitable actions and, consequently, our courts have held that the Bill of Rights did "not alter the common law tradition eschewing juries in equity." Casa El Sol–Acapulco, S.A. v. Fontenot , 919 S.W.2d 709, 715 (Tex. App.—Houston [14th Dist.] 1996, writ dism'd by agr.). However, to provide a jury right in equitable actions, "a special clause was introduced." Cockrill v. Cox , 65 Tex. 669, 672 (1886). In our present Constitution, that guarantee is found in Article V, the Judiciary Article. It provides:
In 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; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.
TEX. CONST. art. V, § 10. We have held, and no party here disputes, that the Judiciary Article "covers all ‘causes’ regardless of whether a jury was available in 1876." Tex. Workers’ Comp. Comm'n v. Garcia , 893 S.W.2d 504, 527 (Tex. 1995).
This Court has noted that the term "cause" had a "broad meaning ... when our present Constitution was drafted." State v. Credit Bureau of Laredo, Inc. , 530 S.W.2d 288, 292 (Tex. 1975). At that time, "action," "suit," and "cause" were treated as "convertible terms," meaning "any legal process which a party institutes to obtain his demand or by which he seeks his right." Id. (citing Ex parte Milligan , 71 U.S. 4 Wall. 2, 4 Wall. 2, 18 L.Ed. 281 (1866) ); see Tolle v. Tolle , 101 Tex. 33, 104 S.W. 1049, 1050 (1907) ; see also In re Abbott , 628 S.W.3d 288, 293 (Tex. 2021) ("Our goal when interpreting the Texas Constitution is to give effect to the plain meaning of the text as it was understood by those who ratified it.").
Yet we have held for more than a century that the Judiciary Article's broad language "does not embrace" every court proceeding. See Hammond v. Ashe , 103 Tex. 503, 131 S.W. 539, 539 (1910) (holding that election contests are not "causes" but merely "proceedings specially created and controlled by the statutes which allow them"); see also Oncor Elec. Delivery Co. LLC v. Chaparral Energy, LLC , 546 S.W.3d 133, 144 (Tex. 2018) (explaining that the constitutional right to a jury trial does not attach in certain types of adversary proceedings); Garcia , 893 S.W.2d at 527 (same).
We identified in Credit Bureau several proceedings that for "some special reason" fall outside the scope of the Judiciary Article: civil contempt proceedings, election contests, habeas corpus proceedings for custody of minor children, suits for the removal of a sheriff, and appeals in administrative proceedings. 530 S.W.2d at 293. But this list was not exhaustive. Id. (noting there are "others"). And since Credit Bureau , our courts of appeals have held other proceedings to be beyond the Judiciary Article's purview. Thus far, we have not articulated a precise test for determining when a proceeding falls outside of the Judiciary Article's scope, and resolution of the question has been on a "case-by-case" basis instead. Id.
See Kruse v. Henderson Tex. Bancshares, Inc. , 586 S.W.3d 118, 125 (Tex. App.—Tyler 2019, no pet.) (holding that "[t]he proceeding for determining the fair value of a dissenting shareholder's ownership interest is not a ‘cause’ within the meaning of Article V, Section 10 of the Texas Constitution"); Roper v. Jolliffe , 493 S.W.3d 624, 635 (Tex. App.—Dallas 2015, pet. denied) (holding that "family violence protective orders are proceedings specially created by the legislature to address family violence and are not ‘causes’ within the meaning of the constitution").
Petitioners raise multiple theories about why a judicial trust-modification proceeding falls outside the Judiciary Article. Richard responds that, as he argued in the court of appeals, a judicial trust-modification proceeding is a "cause" within the meaning of the Judiciary Article. He also contends that petitioners waived their argument that the Judiciary Article does not apply to judicial trust-modification proceedings by raising that argument for the first time in a motion for rehearing in the court of appeals.
We reject this waiver argument. Bock and Troy prevailed in the trial court and were appellees in the court of appeals. As such, they "did not need to raise every argument supporting the trial court's judgment" in their appellees’ brief. In re G.X.H. , 627 S.W.3d 288, 295 (Tex. 2021). "While ordinarily a party waives a complaint not raised in the court of appeals, a complaint arising from the court of appeals’ judgment may be raised either in a motion for rehearing in that court or in a petition for review in this Court." Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London , 327 S.W.3d 118, 125 (Tex. 2010). Here, Bock and Troy noted in their appellees’ brief the constitutional source of the jury trial right and argued that it was unavailable for various reasons that did not include the arguments they assert in this Court. Yet Bock and Troy's complaint does not arise from any action of the trial court but instead from the court of appeals’ conclusion that Richard was entitled to a jury trial. Accordingly, petitioners preserved their argument that the Constitution does not require a jury trial for Section 112.054 proceedings by raising it in their motion for rehearing and petitions for review. See G.X.H. , 627 S.W.3d at 295 ; see also G.T. Leach Builders, LLC v. Sapphire V.P., LP , 458 S.W.3d 502, 518–19 (Tex. 2015).
As for the merits, petitioners argue that a judicial trust-modification proceeding is not a "cause" but a special proceeding lacking many of the ordinary "characteristic[s] of a suit either at law or in equity." Gibson v. Templeton , 62 Tex. 555, 558 (1884) ; see Kruse , 586 S.W.3d at 125 ("Special proceedings, and incidental or supplemental proceedings do not fall within the term ‘cause.’ "). Bock argues that requiring a jury to resolve the predicate grounds would divest the court of "its general power over the administration of trust." Amalgamated , 430 S.W.2d at 117 ; cf. Bergeron v. Sessions , 561 S.W.2d 551, 555 (Tex. App.—Dallas 1977, writ ref'd n.r.e.) (denying jury where "jury intervention would impermissibly transfer control and management of the receivership from the court to the jury"). Petitioners also contend that the predicate questions that determine whether modification is appropriate under Section 112.054 are "unsuitable" for a jury and present legal inquiries that cannot be submitted to a jury. Credit Bureau , 530 S.W.2d at 293 ; see State v. Tex. Pet Foods, Inc. , 591 S.W.2d 800, 803 (Tex. 1979) ("[O]nly ultimate issues of fact are submitted for jury determination.").
The court of appeals confronted none of these constitutional arguments, which were first presented on rehearing. By that time, the court of appeals had concluded that the Trust Code's incorporation of the Rules of Civil Procedure conferred a right to a jury trial. That holding made in-depth treatment of the constitutional arguments unnecessary. Our holding today, however, changes that. The question is whether these novel and difficult questions on an issue of great importance should be addressed by this Court in the first instance. G.T. Leach Builders , 458 S.W.3d at 519 (explaining that this Court's decision to address asserted error arising from the court of appeals’ judgment is "discretionary" and informed by prudential considerations).
As a court of last resort, it is not our ordinary practice to be the first forum to resolve novel questions, particularly ones of widespread import. See, e.g. , City of Fort Worth v. Rylie , 602 S.W.3d 459, 466 (Tex. 2020) ("We do not address the second issue ... because it represents an important issue of first impression in this Court and the court of appeals did not reach it. We thus remand the case to that court so that it can address and decide that issue in the first instance."). Rather, this Court's preferred process is to decline to address and defer such questions until after "complete vetting of the parties’ potential arguments in the lower courts." Pidgeon v. Turner , 538 S.W.3d 73, 87 (Tex. 2017) (quoting Hegar v. Tex. Small Tobacco Coal. , 496 S.W.3d 778, 792 (Tex. 2016) ); see also Wasson Ints., Ltd. v. City of Jacksonville , 489 S.W.3d 427, 439 (Tex. 2016) (remanding case for court of appeals to address unaddressed questions "in the first instance"). That process is especially crucial where, as here, the case presents constitutional issues with ramifications far beyond this case.
Following our preferred practice, we remand the case to the court of appeals to address petitioners’ constitutional arguments in the first instance. And we echo the concurrence's view that amici input could greatly aid the court of appeals’ decisional process.
III. Conclusion
The court of appeals erred by concluding that the Trust Code's incorporation of the Texas Rules of Civil Procedure creates a right to a trial by jury in a Section 112.054 judicial trust-modification proceeding. We reverse the court of appeals’ judgment and remand the case to that court for consideration of petitioners’ constitutional arguments in the first instance and, if necessary, the unaddressed issues raised by respondent in that court.
Justice Busby filed a concurring opinion, in which Justice Devine and Justice Young joined.
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." 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 sacred place in English and American history." White v. White , 108 Tex. 570, 196 S.W. 508, 512 (1917).
Declaration of Independence of the Republic of Texas (1836), reprinted in Tex. Const. app. 771, 772 (2018).
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").
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 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. 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 781. 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 discretionary decision to remand. See id. at 780–81; G.T. Leach Builders, LLC v. Sapphire V.P., LP , 458 S.W.3d 502, 519 (Tex. 2015).
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.
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 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.
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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 , 100 Tex. 462, 101 S.W. 197, 198 (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-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.
I express no view on the correctness of these conclusions at this juncture.
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 778–78.
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. 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 proceedings, if a jury would have tried a disputed matter as a fact at the time the Constitution was ratified in 1876, 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.
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 , 51 Tex.Civ.App. 83, 112 S.W. 102, 103 (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.
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," 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," 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 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.).
Tex. Const. of 1845, art. IV, § 16.
Tex. Const. of 1866, art. IV, § 20 ; Tex. Const. of 1869, art. V, § 16.
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. Yet our recent cases provide some guidance for determining whether a question falls on the factual or discretionary side of this line.
By 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).
"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) ). Thus, "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 ). "[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.) ).
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 resolve disputed issues when material facts are contested."); DiGiuseppe v. Lawler , 269 S.W.3d 588, 596 (Tex. 2008).
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.) )).
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 ....").
This distinction, and the associated division of labor between court and jury, 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). In addition, forward-looking questions such as "imminent harm" and matters of degree such as "[t]he gravity ... of the breach of duty" are for the court to decide.
Cf. Bigham v. Se. Tex. Env't, LLC , 458 S.W.3d 650, 673 (Tex. App.—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.").
See also Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1998).
Operation Rescue-Nat'l v. Planned Parenthood of Hous. & Se. Tex., Inc. , 975 S.W.2d 546, 554 (Tex. 1998).
ERI Consulting Eng'rs, Inc. v. Swinnea , 318 S.W.3d 867, 875 (Tex. 2010).
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 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,
• whether a manifest injustice is threatened,
• whether a litigant has unclean hands,
• whether a constructive trust should be imposed,
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.").
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. App.—Dallas 2007, pet. denied).
See Longview Energy Co. , 533 S.W.3d at 874 ; Burrow , 997 S.W.2d at 245 ("[W]hether a constructive trust should be imposed must be determined by a court based on the equity of the circumstances.").
• the division of property in a divorce action, and
• other factors relevant to a court's weighing of the equities.
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.").
Hill , 544 S.W.3d at 741–42.
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 civil contempt proceedings, election contests, habeas corpus proceedings for the custody of minor children, suits for removal of a sheriff, and appeals in administrative proceedings. We noted that "[i]n each of the above instances, there is some special reason that a jury has been held unsuitable." Id.
Credit Bureau , 530 S.W.2d at 293 (citing Ex parte Allison , 99 Tex. 455, 90 S.W. 870 (1906) ; Crow v. State , 24 Tex. 12 (1859) ; Johnson , 267 S.W. at 1062 ).
Id. (citing Hammond v. Ashe , 103 Tex. 503, 131 S.W. 539 (1910) ).
Id. (citing Burckhalter v. Conyer , 9 S.W.2d 1029 (Tex. Comm'n App. 1928) ; Pittman , 112 S.W. at 102 ).
Id. (citing Davis v. State , 35 Tex. 118 (1871) ).
Id. (citing State v. De Silva , 105 Tex. 95, 145 S.W. 330 (1912) ; Tex. Liquor Control Bd. v. Jones , 112 S.W.2d 227 (Tex. App.—Texarkana 1937, no writ) ).
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 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.
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 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").
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. 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.
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.).
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 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 , 101 Tex. 33, 104 S.W. 1049, 1049–50 (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 , 103 Tex. 503, 131 S.W. 539 (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).
Regarding suits to remove a sheriff, see Tex. Const. art. V, § 23.
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 , 103 Tex. 491, 131 S.W. 535, 537 (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 , 143 Tex. 509, 186 S.W.2d 961 (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.
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.").
Another example is child custody cases prior to the Legislature's 1961 decision to mandate jury trials by statute. Many courts held that 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). 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 , 51 Tex.Civ.App. 83, 112 S.W. 102, 104 (1908, no writ), cited with approval in White , 196 S.W. at 514.
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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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.