Friday, March 5, 2010

Right to jury trial grounded in the constitution, but not automatic

A per curiam opinion issued yesterday by the 1st Court of Appeals provides a useful reminder that even constitutional rights in the litigation process can be waived. The Plaintiff did not timely make a jury demand, or pay the jury fee, and thus waived the right to have the case tried to and decided by a jury.

No reversible error. Take-nothing judgment affirmed.


Thomas’s case was called for trial on July 5, 2007. It is undisputed that Thomas had neither requested a jury trial, nor paid a jury fee, prior to the day of trial. Thomas requested a jury trial in open court, which the trial court denied. Alternatively, Thomas requested a motion for continuance, which the trial court also denied. The case was then tried, with Thomas refusing to prosecute her case further. After Thomas put on no evidence, Radioshack and Reyes moved for a judgment in their favor. The trial court rendered judgment that Thomas take nothing on her claims against Radioshack and Reyes. This appeal followed.


In her first issue on appeal, Thomas contends the trial court erred in denying her request for a jury trial. We review a trial court’s refusal to grant a jury trial under an abuse-of-discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). Rule 216(a) of the Texas Rules of Civil Procedure states that “[n]o jury trial shall be had in any civil court, 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). Here, Thomas’s request for a jury was made on the day of trial, not at least thirty days in advance as required by Rule 216(a).

Nevertheless, Thomas argues that she is constitutionally entitled to a jury trial, and that this Court should conduct a de novo review of the trial court’s denial of a jury trial. While Thomas may have a constitutional right to a jury trial, such a right can be waived by failing to comply with Rule 216(a). See In re Prudential Ins. Co., 148 S.W.3d 124, 130 (Tex. 2004) (stating that jury trial can be waived if prerequisites of rule 216 not met). By not filing her request for a jury trial in a timely manner, Thomas has waived her right to a jury. We see no need to depart from the abuse-of-discretion standard.

We overrule issue one.

Thomas v Radioshack Corp
. (Tex.App.- Houston [1st Dist.] Mar. 4, 2010)(Radack) (request for jury trial, motion for continuance properly denied, oral motion to continue trial date was insufficient)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00400-CV Arva Thomas v. Radioshack Corporation d/b/a Radioshack #8002 and Danica Reyes, Employee in her Official and Individual Capacity
Appeal from 11th District Court of Harris County
Trial Court Judge:
Hon. Mark Davidson

RELATED TERMS: right to trial by jury of peers in civil cases, procedure and deadline to assure jury trial, get on the jury docket, deadline to file jury demand, requirement to pay jury fee, consequences of failure to timely request trial by jury, and pay required jury fee

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