law-jury-waiver
TEXAS SUPREME COURT CASES ON JURY WAIVER
In Re Bank of America, N.A. (Tex. Feb. 27, 2009)(per curiam)(mandamus)
(contractual jury waiver enforced by mandamus, conspicuousness of waiver, knowing and voluntary waiver)
IN RE BANK OF AMERICA, N.A.; from Tarrant County; 2nd district (02-05-00397-CV, 232 SW3d 145, 05-03-
07)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.
Per Curiam Opinion
(Justice Johnson not sitting)
TEXAS COURTS OF APPEALS CASE LAW ON JURY WAIVERS
The right to a trial by jury shall remain inviolate. Tex. Const. art. V, §10. However, Texas law does not
prohibit a party from contractually waiving its constitutional right to a trial by jury. In re Prudential Ins. Co. of
America, 148 S.W.3d at 132-33. Contractual jury waivers do not violate public policy and are enforceable. Id.
at 129-33. Parties frequently waive their right to a jury trial whether contractual or otherwise. See generally
In re Wells Fargo Bank Minnesota N.A., 115 S.W.3d 600, 606 (Tex.App.–Houston 14th Dist.] 2003, orig.
proceeding) (agreeing to a bench trial [citations omitted], failing to timely pay a jury fee [citations omitted],
failing to timely request a jury trial [citations omitted], failing to appear for trial [citations omitted], and failing
to object to a bench trial despite a properly perfected jury request [citations omitted]). Texas allows parties to
contractually waive the right to a jury trial by enforcing arbitration agreements. Id. at 607 (citing Massey v.
Galvan, 822 S.W.2d 309, 318 (Tex.App.–Houston [14th Dist.] 1992, writ denied) (“[i]t is clear that when a
party agrees to have a dispute resolved through arbitration rather than a judicial proceeding, that party has
waived its right to a jury trial.”)
In Re J.W. Resources Exploration and Development (Tex.App.- Amarillo, Aug. 25, 2009)(Pritle)(mandamus
against order compelling arbitration denied)(jury waiver, fraudulent inducement argument against
enforcement of arbitration clause fails)
MOTION OR WRIT DENIED: Opinion by Justice Pirtle
Before Chief Justice Quinn, Justices Hancock and Pirtle
07-09-00189-CV In Re J.W. Resources Exploration and Development, Inc., Joe Watkins, and Jim
Blankenship, Relators
Additionally, the Supreme Court recently rejected treating a waiver of a jury trial differently than
arbitration clauses. See In re Bank of America, N.A., 278 S.W.3d 342, 343-44 (Tex. 2009) (per curiam). The
Court clarified In re Prudential Ins. Co. of America, 148 S.W.3d 124 (Tex. 2004), and held that it does not
impose a presumption against jury waivers that places the burden on the party seeking enforcement to
prove that the waiver was executed knowingly and voluntarily. In re Bank of America, N.A., 278 S.W.3d at
346.
A conspicuous jury waiver provision is prima facie evidence of a knowing and voluntary waiver and shifts
the burden to the opposing party to rebut it. In re General Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex.
2006) (per curiam). The Court has always presumed that a party who signs a contract knows its contents. In
re Bank One, N.A., 216 S.W.3d 825, 826 (Tex. 2007). As long as there is a conspicuous waiver provision,
Relators are presumed to know what they were signing. “[P]arties strike the deal they choose to strike and,
thus, voluntarily bind themselves in the manner they choose. And, that is why parties are bound by their
agreement as written.” Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex.App-Amarillo 2000, no
pet.). The jury waiver provision included in the arbitration clause is in all capital letters and stands out from
the language pertaining to arbitration. It is sufficiently conspicuous to serve as prima facie evidence that
Relators, Watkins and Blankenship, who both executed the Agreement, knowingly and voluntarily waived
their right to a jury trial.