In THE MATTER OF TROY S. POE TRUST v. the State of Texas

Supreme Court of Texas
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No. 23-0729
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In the Matter of Troy S. Poe Trust

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On Petition for Review from the
Court of Appeals for the Eighth District of Texas
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JUSTICE BUSBY, joined by Justice Devine and Justice Young,
concurring in the denial of the petition for review.

We previously remanded this case for the court of appeals to
address whether a statutory petition to modify a trust is a “cause” in
which a party has a constitutional “right of trial by jury” to resolve
disputed questions of fact. TEX. CONST. art. V, § 10; see In re Troy S. Poe
Tr., 646 S.W.3d 771, 780-81 (Tex. 2022) (Poe Trust I). In doing so, I
urged the court of appeals—and courts, parties, and amici in future
cases—to help us “begin correcting the course of our jury-trial
jurisprudence” by developing a “coherent analytical framework” for
deciding when a jury is required, guided by “the plain meaning of the
[constitutional] text as it was understood by those who ratified it,” that
makes sense of our current “hodgepodge of confusing precedents and
[tests employing] indeterminate adjectives.” Poe Trust I, 646 S.W.3d at
781-82 (Busby, J., concurring) (internal quotation marks omitted). I
cautioned, however, that “the court of appeals is not free to reexamine
this Court’s precedent,” which “we may eventually have to do.” Id. at
782.
In taking up this challenging task on remand, the majority of the
panel in the court of appeals unfortunately misunderstood how the
relevant constitutional provision has changed over time, which led it to
refuse to follow some of this Court’s precedents from much closer to the
time of ratification that are still good law. See In re Troy S. Poe Tr., 673
S.W.3d 395, 403-05 (Tex. App.—El Paso 2023) (Poe Trust II). I write to
explain how the panel majority erred so that this course correction will
not veer off track. But because I have concluded after considering the
parties’ briefing that there is no disputed question of fact here for a jury
to decide, I concur in the Court’s denial of the petition for review.

I

As explained in my previous concurrence, the framers of the
Texas Constitution considered the jury-trial right so important that they
used sweeping and emphatic language to guarantee it not just once, but
twice. The Bill of Rights provides that “[t]he right of trial by jury shall
remain inviolate.” TEX. CONST. art. I, § 15. We have held that this
provision applies to common-law actions that would have been tried to
a jury in 1876, as well as analogous actions and statutory or rule-based
substitutes for such actions. Poe Trust I, 646 S.W.3d at 784 (Busby, J.,
concurring) (collecting cases). Because there was no common-law action
analogous to trust modification, no one contends that the Bill of Rights
guarantee applies to a statutory trust-modification proceeding. But its
existence and scope are important in understanding the meaning of the
other guarantee, which is at issue here.

2
That guarantee, which appears in the Judiciary Article, provides
that “[i]n the trial of all causes in the district courts, the plaintiff or
defendant shall, upon application made in open court, have the right of
trial by jury.” TEX. CONST. art. V, § 10 (emphasis added). We have held
that this guarantee applies, among other things, to “ultimate issues of
fact” in “equitable action[s],” 1 analogous actions, and statutory or rule-
based substitutes for such actions, as well as when challenging disputed
facts addressed in proceedings ancillary to a cause. See Poe Trust I, 646
S.W.3d at 784, 787-89 (Busby, J., concurring) (collecting cases). For
example, it applies to contested matters of fact arising from receivership
and probate proceedings. Id. at 788-89; San Jacinto Oil Co. v.
Culberson, 101 S.W. 197, 199 (Tex. 1907); Davis v. Davis, 34 Tex. 15, 23-
24 (1870).
We have also explained that the Judiciary Article guarantee was
“intended to broaden the right to a jury,” and that the word “cause” had
a “broad meaning . . . when our present Constitution was drafted” that
included any “suit, litigation, or action” involving a “question . . .
litigated or contested before a court” or “legal process . . . to obtain [a]
demand” or “seek[] [a] right.” State v. Credit Bureau of Laredo, Inc., 530
S.W.2d 288, 292 (Tex. 1975). Thus, a “special reason” is necessary to
conclude that particular “adversary proceedings” do not “qualify as a
‘cause’.” Id. at 293. Because we have identified certain special
reasons—such as separate constitutional provisions—that some
proceedings do not require a jury, “not all adversary proceedings are

1 State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979).

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‘causes’ within the meaning of the Judiciary Article.” Tex. Workers’
Comp. Comm’n v. Garcia, 893 S.W.2d 504, 527 (Tex. 1995); see Poe
Trust I, 646 S.W.3d at 779; id. at 787-790 (Busby, J., concurring)
(analyzing cases identifying special reasons).
Here, as the Court explained in Poe Trust I, a petition to modify
a trust under Section 112.053 of the Property Code is a statutory
substitute for the traditional equitable action to deviate from a trust.
646 S.W.3d at 776. And this particular petition led to contested claims
and counterclaims among parties to the case with interests in the trust
regarding whether the modification requirements were satisfied. Id.
at 774.
But on remand, a majority of the court of appeals panel did not
examine whether there was a “special reason” of the sort we have held
sufficient to exclude such an adversary equitable action from the
Judiciary Article guarantee. Instead, the panel majority excluded these
claims by disregarding the broader definition of “cause” we endorsed in
Credit Bureau and selecting a narrower alternative definition derived
from the common law: an “ordinary cause of action” or “personal action”
in which a plaintiff alleges that a defendant breached a legal duty or
violated a legal right and seeks recourse for that conduct. Poe Trust II,
673 S.W.3d at 408-410 (emphasis added). 2

2 See, e.g., Poe Trust II, 673 S.W.3d at 408 (selecting alternative
definition of cause as “‘cause of action’ that ‘arises upon the breach of a duty or
the violation of a right recognized in the law.’” (emphasis added) (internal
quotation marks omitted)); id. at 409 (crediting definition applying right to
trial by jury to “actions according to the course of the common law and not to
special proceedings of a summary character” (emphasis added) (internal
quotation marks omitted)); id. at 409-410 & n.9 (crediting definition of

4
The panel reasoned that there were only two possible definitions
of “cause”: the narrow one it selected and another that “embrace[s] every
contested proceeding.” Id. at 406. It concluded that the history of
changes to our Constitution compelled it to select the narrower
definition because the drafters of the 1876 Constitution “eliminat[ed]
the broad [jury-trial] language in the 1869 Constitution and add[ed]
narrower language.” Id. at 404. And it held that this constitutional
change rendered our 1870 Davis decision requiring a jury trial in a will
contest “of little, if any, value” and allowed the panel to disregard our
“cases at the turn of the 20th Century [that] continued to use broad
language when describing the constitutional jury-trial right.” Id. at 405.
Several weaknesses, however, underlie the panel majority’s
definition and reasoning. First, the panel’s definition impermissibly
departs from the “broad” definition of “cause” we endorsed in Credit
Bureau, which was drawn from contemporaneous sources. 530 S.W.2d
at 292. Indeed, an amicus helpfully points out that Texas cases used the
term “cause” in the 1870s to describe a wide variety of proceedings
involving trusts. 3 Second, the panel’s definition is based on the common
law and thus excludes equitable actions, which we have long held the

common-law “personal action” for breach of contract, debt, or trespass that
excludes specific recovery of lands or inheritances).
3 See Brief for Texas Trial Lawyers Ass’n as Amicus Curiae Supporting

Petitioner at 8-9, In re Troy S. Poe Tr., No. 23-0729 (Tex. June 17, 2024)
(collecting cases showing that cause “was used to describe suits by beneficiaries
against trustees, litigation from foreclosures after trustees failed to execute the
trust (where the right to a jury trial was recognized and waived), jury trials in
the wake of trustees’ defalcations, [and] trust stock suits against successors to
trustees (where the right to a jury trial was recognized and waived)”).

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Judiciary Article guarantee was specifically enacted to include. 4 E.g.,
Credit Bureau, 530 S.W.2d at 292; Cockrill v. Cox, 65 Tex. 669, 672
(1886). The panel’s definition would collapse the Judiciary Article
guarantee into the Bill of Rights guarantee, rendering the former
surplusage.
Moreover, the panel majority’s reasons for crafting a new,
narrower definition of “cause” are based on a misunderstanding of Texas
constitutional history. The lynchpin of the panel’s constitutional view
is its statement that “[e]arlier versions of the Constitution contain[ed]
far broader jury-trial rights.” Poe Trust II, 673 S.W.3d at 403. 5 To the
contrary, every one of the Texas Constitutions since 1845 has included

4 Guaranteeing a jury trial in equitable actions is a unique feature of

Texas jury-trial jurisprudence that renders the panel’s selected definitions
from national reference works inapposite. The panel also relies on an article
by Whitney Harris, which we cited in Credit Bureau. See Whitney R. Harris,
Jury Trial in Civil Cases—A Problem in Constitutional Interpretation, 7 SW.
L.J. 1 (1953). But we did not endorse the Harris article in its entirety, much
less adopt it as a statement of the law, and parts of that article commit the
same error of relying on the common-law understanding of a “cause of action”
to define “cause.” Indeed, Credit Bureau also relied on a second article that
conflicts with the Harris article in some respects. See 530 S.W.2d at 293 (citing
Carroll, Right to Trial by Jury—Exceptions, 7 TEX. L. REV. 663 (1928)). For
example, Harris additionally advocated extending the right of trial by jury in
habeas corpus proceedings to other proceedings involving child custody or
adoption. 7 SW. L.J. at 9-12. Notably, Credit Bureau omitted any discussion
of those proceedings, as does the Carroll article. Conversely, although both
articles discussed judicial review of administrative decisions, Harris did not
separately address the right to a jury in license-revocation proceedings; the
treatment of those proceedings in Credit Bureau finds support in the Carroll
article.
5 In fairness, the panel’s confusion may have stemmed from a
misstatement in Credit Bureau that “the present Constitution of 1876 . . .
changed the words of the earlier Constitutions from ‘all cases of law or equity’
to its present form, ‘trial of all causes.’” 530 S.W.2d at 292.

6
the “trial of all causes” formulation that currently appears in Section 10
of the Judiciary Article. 6 Although earlier formulations referred
specifically to “all causes in equity,” we concluded in Credit Bureau that
dropping the equity qualifier made the guarantee broader, not narrower.
530 S.W.2d at 292-93.
A separate provision addressing a jury trial in “all cases” first
appeared in a new section added to the 1866 Constitution: Section 20 of
the Judiciary Article. This section provided that “[i]n all cases of law or
equity, where the matter in controversy shall be valued at, or exceed
twenty dollars, the right of trial by jury shall be preserved.” TEX. CONST.
of 1866, art. IV, § 20. The addition of Section 20 coincided with
provisions broadening the jurisdiction of county courts. The
Constitutions of 1845 and 1861 had provided for the establishment of
county courts to hear certain matters. 7 The 1866 Constitution expanded
that grant of jurisdiction to additional matters, including “such civil
cases, where the matter in controversy shall not exceed five hundred

6 See TEX. CONST. of 1845, art. IV, § 16 (“In the trial of all causes in

equity in the district court . . . .”); TEX. CONST. of 1861, art. IV, § 16 (“In the
trial of all causes in equity in the District Court . . . .”); TEX. CONST. of 1866,
art. IV, § 8 (“In the trial of all causes in equity in the District Courts . . . .”);
TEX. CONST. of 1869, art. V, § 26 (“In the trial of all causes in the District
Court . . . .”); TEX. CONST. of 1876, art. V, § 10 (“In the trial of all causes in the
District Courts . . . .”).
7 TEX. CONST. of 1861, art. IV, § 15 (“Inferior tribunals shall be
established in each county for appointing guardians, granting letters
testamentary and of administration; for settling the accounts of executors,
administrators, and guardians, and the transaction of business appertaining
to estates.”); TEX. CONST. of 1845, art. IV, § 15 (same).

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dollars, . . . without regard to any distinction between law and equity.”
TEX. CONST. of 1866, art. IV, § 16.
Section 20 therefore did not “exten[d] the right to a jury to ‘all
cases of law or equity,’” as we said in Credit Bureau, 530 S.W.2d at 292;
that right had long been guaranteed by the “all causes” language now in
Section 10 of the Judiciary Article and by the Bill of Rights. Instead,
Section 20 “preserved” these jury-trial guarantees even if the suit was
brought in county court. TEX. CONST. of 1866, art. IV, § 20.
The panel majority compounded its misunderstanding by
focusing on earlier Constitutions’ inclusion of a jury-trial right for
certain contracts-related cases. The panel dubbed this contracts-related
provision a “third jury-trial right,” in addition to Section 20 and the “all
causes” language now in Section 10. Poe Trust II, 673 S.W.3d at 403-04.
And according to the panel, our present “1876 Constitution removed all
three jury-trial rights that were in the 1869 Constitution, save the one
in the Bill of Rights, and added the narrower Judiciary Article language
that remains today.” Id. at 404 (emphasis added).
Not so. The Constitutions of 1845 and 1861 provided that “[i]n all
causes arising out of a contract, before any inferior judicial tribunal, . . .
the plaintiff or defendant shall, upon application to the presiding officer,
have the right of trial by jury.” TEX. CONST. of 1861, art. IV, § 18; TEX.
CONST. of 1845, art. IV, § 18. This provision does not appear at all in
the Constitution of 1866. An amended version of it resurfaces in the
1869 Constitution—the only true instance of a change in constitutional

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language from “all causes” to “all cases” 8—but is again omitted from the
1876 Constitution.
Although the panel was correct that the drafters of the
1876 Constitution eliminated some language from earlier Constitutions
by dropping Section 20 and the contracts-related provision, those
drafters never “add[ed] narrower language” from which a court could
infer that they “intended a different result.” Poe Trust II, 673 S.W.3d at
404. To the contrary, the “all causes” guarantee now in Section 10 of the
Judiciary Article has never been amended, aside from the omission of
the qualifying words “in equity” from the Constitutions of 1869 and
1876. The most likely inference from this constitutional evolution is that
the drafters thought the Judiciary Article’s “all causes” guarantee was
broad enough to encompass Section 20 and the contracts-related
provision once the “in equity” qualifier was deleted; thus, the latter
provisions became unnecessary and were removed. This history
supports the “broad” definition of “cause” we endorsed in Credit Bureau.
530 S.W.2d at 292-93.
For this additional reason, the panel majority erred in choosing a
different and much narrower common-law definition of “cause,” which
led it to depart improperly from several other binding precedents of this
Court. For example, because our 1870 Davis decision requiring a jury
trial in a will contest predated the adoption of the 1876 Constitution,
the panel concluded that Davis has “little, if any, value,” Poe Trust II,

8 Compare TEX. CONST. of 1845, art. IV, § 18 (“In all causes arising out

of a contract . . . .” (emphasis added)), and TEX. CONST. of 1861, art. IV, § 18
(same), with TEX. CONST. of 1869, art. V, § 25 (“In all cases arising out of a
contract . . . .” (emphasis added)).

9
673 S.W.3d at 405—even though the language of the Judiciary Article
guarantee now in Section 10 was exactly the same in the 1869
Constitution. 9 And although we decided Tolle v. Tolle, 104 S.W. 1049
(Tex. 1907), and San Jacinto Oil after the 1876 Constitution was
adopted, the panel incorrectly dismissed those decisions—which we
have relied on frequently 10—as “cases at the turn of the 20th Century
[that] continued to use broad language when describing the
constitutional jury-trial right.” Poe Trust II, 673 S.W.3d at 405.
Under these and other precedents, the court of appeals erred by
adopting a binary view of the options for defining the scope of the
Judiciary Article’s jury-trial guarantee and selecting the narrower
option. Instead, it should have followed the middle path charted by our
cases (hodgepodge though they may be), proceeding to examine whether
there is a “special reason” of the kind we have held sufficient to deny a
jury trial even though this adversary equitable action otherwise falls
within the broad meaning of “cause” in the Judiciary Article guarantee.
See Credit Bureau, 530 S.W.2d at 293; see also Poe Trust I, 646 S.W.3d
at 787-790 (Busby, J., concurring). If any departure from our precedent
is warranted, it must come from this Court.

9 Compare TEX. CONST. of 1869, art. V, § 26 (“In the trial of all causes

in the District Court . . . .”), with TEX. CONST. of 1876, art. V, § 10 (“In the trial
of all causes in the District Courts . . . .”).
10 E.g., Poe Trust I, 646 S.W.3d at 779 (citing Tolle); id. at 789 (Busby,

J., concurring) (quoting Tolle); see also Oncor Elec. Delivery Co. v. Chaparral
Energy, LLC, 546 S.W.3d 133, 144 (Tex. 2018) (citing Tolle in connection with
the “all causes” language of Section 10 of the Judiciary Article); Garcia, 893
S.W.2d at 526 (same); Credit Bureau, 530 S.W.2d at 292 (citing Tolle).

10
I do not analyze either point here, however—whether a “special
reason” applies in this context under our existing jurisprudence or
whether that jurisprudence is well grounded in the Constitution’s text
and history. Because I conclude that there are no disputed questions of
material fact in this case for a jury to resolve, those questions must
await a future case.

II

“We have not yet addressed whether there are fact issues for a
jury to decide in a modification suit.” Poe Trust I, 646 S.W.3d at 782 n.3
(Busby, J., concurring). Consistent with the court of appeals’ holding in
the prior appeal, 11 Richard Poe, a trustee and remainder beneficiary,
contends in his petition for review that each of the grounds alleged in
co-trustee Anthony Bock’s petition to modify the trust raises “disputed
factual predicates that a jury was required to decide in this case.”
Section 112.054 enumerates several alternative grounds that can
support granting a trustee’s or beneficiary’s statutory petition for
modification or termination of a trust. TEX. PROP. CODE § 112.054(a).
The grounds for modification that Bock alleged are: “(1) the purposes of
the trust have been fulfilled or have become illegal or impossible to
fulfill,” and “(2) because of circumstances not known to or anticipated by
the settlor, the order will further the purposes of the trust.”

11 See In re Troy S. Poe Tr., 591 S.W.3d 168, 171 (Tex. App.—El Paso

2019) (“We hold that the predicate questions of whether the trust needed to be
modified was a fact question that should have been decided by a jury upon a
proper jury demand.”), rev’d on other grounds, Poe Trust I, 646 S.W.3d at 780-
81.

11
Id. § 112.054(a)(1), (2). Establishing one or more of the predicate
grounds empowers the trial court to order a modification or other
remedies available under subsection (a). See Poe Trust I, 646 S.W.3d
at 777.
As discussed in Poe Trust I, Section 112.054 codifies the equitable
“rule or doctrine of deviation.” Id. at 776 (internal quotation marks
omitted). To determine whether the Judiciary Article’s jury-trial
guarantee was violated in an equitable cause, “the pivotal inquiry . . . is
whether the disputed matter is a question of fact that must be submitted
to a jury or a question of equitable discretion to be decided by the court.”
Id. at 785 (Busby, J., concurring).
Here, the probate court found after a bench trial that “[b]ecause
of changed circumstances since the death of [Dick Poe, the settlor], the
purposes of the Trust have become impossible to fulfill, and modification
will further the Trust purposes.” But the parties have not identified any
disputed evidence regarding what the factual circumstances were when
the trust was created or regarding how those circumstances changed by
the time Bock filed his petition for modification. Indeed, Richard notes
that he and Bock “disagreed on only two matters, neither of which
implicated [the primary beneficiary].” Nor are there any factual
disputes regarding what the purposes of the trust are.
We therefore need not resolve whether such factual disputes
would require submission to the jury. Instead, many of Richard’s
arguments in this case concern the equitable question whether certain
undisputed facts count as “changed circumstances” or establish
impossibility. At bottom, Richard’s arguments seek to reframe the

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question whether modification was warranted, which is a question for
the probate court in determining the expediency, necessity, and
propriety of equitable relief.
Under our cases addressed in my previous concurrence, the
“ultimate issues” of whether and how to modify the trust are questions
of equitable discretion for the probate court. Poe Trust I, 646 S.W.2d at
781, 785-86 (Busby, J., concurring). 12 Because Richard has not
identified any material factual disputes for a jury to resolve that would
inform the probate court’s resolution of those questions in this particular
case, I conclude that no jury was required and concur in the Court’s
denial of review.

J. Brett Busby
Justice

OPINION FILED: August 16, 2024

12 See Huynh v. Blanchard, ___ S.W.3d ___, 2024 WL 2869423, at *13-

14 (Tex. June 7, 2024); Tex. Pet Foods, Inc., 591 S.W.2d at 803 (“[O]nly ultimate
issues of fact are submitted for jury determination.”); Schuring v. Fosters Mill
Vill. Cmty. Ass’n, 396 S.W.3d 73, 76 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied) (adopting “two-step inquiry” that asks first “whether the evidence
shows actual changed circumstances,” and second “whether the trial court
abused its discretion in ruling upon the requested modification”).

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