We have seen this issue arise more than once lately: A party files a jury demand and pays the fee close to but before the 30-day deadline prior to trial; however, the e-filing system delays acceptance of the filing and payment until after the 30-day deadline, so the trial court denies the jury trial. We believe the trial court is wrong to deny the jury trial in this instance.

Texas is the only state in the nation that allows jury trials in family law cases, particularly on custody cases. We try a LOT of jury trials — an inordinate percentage compared to most family law firms. But, what do you do when you submit your jury demand before the 30th day before trial and tender the fee on the same day, but the e-filing system or clerk delays posting it until after the deadline? Can the judge correctly deny the jury trial?

Texas Rule of Civil Procedure 216 requires a party to file their demand for a jury trial 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. See Tex. R. Civ. Pro. 216(a). In Texas, an electronically filed document “is deemed filed when transmitted to the filing party’s electronic filing service provider…”. Tex. R. Civ. Pro. 21(f)(5). A document is considered timely filed “it if is electronically filed at any time before midnight (in the court’s time zone) of the filing deadline.” Id. A jury demand filed in “advance of the thirty-day deadline is presumed to have been made a reasonable time before trial.” Halsell v. Dehoyos, 810 S.W.2d 371 (Tex. 1991).

The associated jury fee must be “deposited with the clerk of the court within the time for making a written request for a jury trial.” See Tex. R. Civ. Pro. 216 (b). The timing rules for the jury demand apply to the jury fee as well. Huddle v. Huddle, 696 S.W.2d 895 (Tex. 1985). Thus, a jury fee that is deposited with the clerk in advance of the thirty-day deadline is presumed to have been made a reasonable time before trial. Id.

Finally, the Texas Supreme Court has recognized that, even when a party does not timely pay the jury fee, a trial court should accord the right to a jury trial if possible. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997).

All of this to say that the minute you transmit the jury demand to e-filing it is considered timely. Likewise, depositing the payment of the jury fee with the e-filing system should be sufficient to comply with the deadline rules. But, even so, unless there is proof that some prejudice will come from allowing the jury trial, even if the filing is late, the trial court should in consideration of due process grant the jury trial. Always err on the side of a jury trial.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.