in Re Texas Department of Family and Protective Services

Opinion

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)

2 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.

3 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