in Re Texas Department of Family and Protective Services ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00618-CV
In re Texas Department of Family and Protective Services
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Relator, the Texas Department of Family and Protective Services, seeks mandamus
relief from the district court’s sua sponte order issued after a jury verdict, declaring a mistrial and
setting a new trial date. We conditionally grant the writ in part. To be entitled to a writ of
mandamus in a civil suit in Texas, the party seeking such relief ordinarily must establish that the
ruling of the trial court constitutes a clear abuse of discretion and that there is no adequate remedy
at law. In re Frank Kent Motor Co., 361 S.W.3d 628, 630 (Tex. 2012) (orig. proceeding). As to
the second of these criteria, adequacy of remedy, the Texas Supreme Court has explained that “in
two instances have new trial orders rendered during the time a trial court has plenary power been
reviewable by an appellate court: when the trial court’s order was void and when the trial court
erroneously concluded that the jury’s answers to special issues were irreconcilably in conflict.”
In re Columbia Med. Ctr., 290 S.W.3d 204, 209 (Tex. 2009) (orig. proceeding) (conditionally
granting mandamus relief from order granting new trial). Where, as here, neither of those
circumstances exists, the Department has no remedy on appeal. We turn then to the first criterion,
abuse of discretion.
Applying the abuse-of-discretion standard, the Texas Supreme Court has held that
a trial court must explain with reasonable specificity why it has set aside a jury verdict and granted
a new trial. In re Bent, 487 S.W.3d 170, 172–73 (Tex. 2016) (orig. proceeding) (citing Columbia,
290 S.W.3d at 213); see also In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 748–49 (Tex.
2013). A trial court’s stated reasoning under this requirement is evaluated under a two-part
framework. The requirement is generally satisfied when a trial court’s stated reason is (1) one for
which a new trial is legally appropriate and (2) specific enough to indicate that the trial court did
not simply parrot a pro forma template, but rather derived the articulated reasons from the
particular facts and circumstances of the case at hand. In re Bent, 487 S.W.3d. at 173 (quoting
In re United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding)). However,
an appellate court may also evaluate on mandamus review the merits of a new-trial order that
facially comports with the foregoing standard, reviewing the correctness of the stated reasons for
granting a new trial. Toyota Motor, 407 S.W.3d at 757.
Here, the district court’s entire explanation for ordering a mistrial was that “during
a post-judgment hearing, it was made known, and otherwise undisputed, that the jury received
perjured testimony from a witness” and “a mistrial is the proper remedy due to the material
perjury.” On its face, this explanation is insufficiently specific to show that the district court
“derived the articulated reasons from the particular facts and circumstances of the case” because
the order does not indicate what testimony the court believed to have been perjurious or explain
how that testimony undermined the jury’s findings. See In re United Scaffolding, 377 S.W.3d at
689–90 (stating that “[t]he order must . . . explain how the evidence (or lack of evidence)
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undermines the jury’s findings” and ordering the trial court to “elaborate, with reference to the
evidence adduced at trial, how the jury’s answers are contrary to the great weight and
preponderance of the evidence”).
Despite the order’s facial lack of specificity, the Department and the real party in
interest, D.R., both identify the testimony that they suspect the trial court found problematic. In
this suit to terminate parental rights, testimony by the proposed relative-placement that she did not
use drugs was later called into question after the attorney ad litem stated in a post-trial hearing that
the relative-placement had had a drug test that “did not come back favorably.” Both the
Department and D.R. assume that the trial court found the relative-placement’s statement
perjurious. Assuming, without deciding, that this is the testimony the court thought perjurious and
that an undisputed post-trial revelation of perjury is a legally appropriate basis to order a new trial,
the order nevertheless fails under a merits-based evaluation because it does not refer to
sufficient evidence.
As the Department points out, it was not undisputed that perjury occurred; Relator
vigorously disputed that very contention. Moreover, the evidence that perjury occurred does not
suffice to support the district court’s order. Perjury is a false sworn statement made with the intent
to deceive and with knowledge of the statement’s meaning. See Tex. Penal Code § 37.02. Because
there is no evidence as to what the ad litem meant by the phrase “did not come back favorably,”
and because the relative-placement’s statement may be consistent with a number of explanations,
the evidence is insufficient to support a finding that the relative-placement committed perjury.
Because the district court’s order lacks the specificity required to support the
granting of a new trial, and because the court’s stated reason for granting a new trial fails on the
merits, the court abused its discretion in disregarding the jury’s verdict and ordering a new trial.
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For the foregoing reasons, we conditionally grant partial relief. We direct the trial court to vacate
its order declaring a mistrial and setting a new trial date or to identify with reasonable specificity,
and to elaborate, with reference to the evidence adduced, the reasons it granted a new trial. The
writ will issue only if the district court does not comply.
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Byrne, Justices Triana and Smith
Filed: October 28, 2022
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