In Re Cheryl Verret v. the State of Texas

Opinion issued October 28, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-25-00390-CV
———————————
IN RE CHERYL VERRET, Relator

Original Proceeding on Petition for Writ of Mandamus

CONCURRING OPINION

The judge presided over a bench trial and signed a final judgment, but she

later left office before plenary power expired. Her successor, who had not sat

through any of the trial, used that plenary power and ordered a new trial. Relator

assails that order by petition for writ of mandamus.

Mandamus would be cognizable if the first trial had been to a jury, but things

become murkier when the trial takes place non-jury. Does the removal of the jury

matter to the availability of mandamus relief?
The courts of appeals tend to think so.1 They allow mandamus if the new trial

order threw out a jury verdict, but not otherwise. After all, the last 20 years of

supreme court decisions in this area stress the value of the right to a jury trial, based

on the historic role of juries in American law.2 It is hard to make the same case for

non-jury trials. For this reason, denying relief appears to be proper. See Ospina v.

Garcia Florez, No. 01-19-00465-CV, 2021 WL 2149334, at *4 (Tex. App.—

Houston [1st Dist.] May 27, 2021, pet. denied) (mem. op.) (“This case does not

involve the same concerns that In re Columbia Medical Center presented. This is

not a situation in which the trial court granted a motion for new trial and set aside a

jury verdict without stating its reasons beyond ‘in the interests of justice and

fairness.’ Rather, the divorce case was tried to the bench, not a jury.”).

This conclusion admittedly gives me some pause. Relator notes the anomaly

that occurs when a new judge overturns the old judge’s work without having heard

the evidence. Fair enough, but that anomaly largely comes as a fact of life. Every

1
See, e.g., In re Velasquez, No. 04-25-00091-CV, 2025 WL 1063434, at *4 (Tex. App.—
San Antonio Apr. 9, 2025, orig. proceeding) (mem. op.); In re Foster, No. 05-15-00179-CV, 2015
WL 682335, at *1 (Tex. App.—Dallas Feb. 18, 2015, orig. proceeding) (mem. op.); In re Old Am.
Cnty. Mut. Fire Ins. Co., No. 13-13-00644-CV, 2014 WL 1633098, at *10–11 (Tex. App.—Corpus
Christi–Edinburg Apr. 23, 2014, orig. proceeding) (mem. op.).
2
See In re Rudolph Auto., LLC, 674 S.W.3d 289, 299–302 (Tex. 2023) (orig. proceeding);
In re Bent, 487 S.W.3d 170, 175–78 (Tex. 2016) (orig. proceeding); In re Toyota Motor Sales,
U.S.A., Inc., 407 S.W.3d 746, 755–59, 762 (Tex. 2013) (orig. proceeding); In re United
Scaffolding, Inc., 377 S.W.3d 685, 686–87 (Tex. 2012) (orig. proceeding); In re Columbia Med.
Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209 (Tex. 2009) (orig. proceeding).
2
time a new judge takes office, there is the possibility of undoing the rulings of a

predecessor. Texas has accepted this anomaly as inherent in the system. Further,

our system allows judges to sit for each other on various occasions. For instance, a

judge with a medical issue might have a colleague sit in for a part of the trial. These

things happen. See id. at *5.

Quite apart from the wrinkle of the successor judge, relator questions why

non-jury cases should be exempt from mandamus review of new trial orders. One

could easily make arguments for expanding mandamus beyond where the Toyota

line of cases took it. Litigants in bench trials care just as much about the process,

benefit just as much from a good explanation, and deserve just as much respect as

litigants who put themselves upon the country.

However, if we were to open the door to extraordinary relief in non-jury cases,

it would undermine the doctrinal framework of the Toyota line of cases. Toyota and

its progeny placed jury trials on something of a pedestal. If we were to give identical

treatment to non-jury trials, it would amount to putting all things onto pedestals,

which really means putting none of them onto a pedestal.

When more years of experience in the post-Toyota world have accumulated,

the supreme court will have the benefit of those years in evaluating how well the

current approach has been working. But that is for another court and another day.

3
For the time being, my best reading of the high court’s extant cases persuades me

that those cases fit better with a mandamus denial here than with a grant.

All that said, Texas could improve the system with one simple step: allow for

review of new trial orders by ordinary appeal after the second trial. This would not

require expanding mandamus any further. It would simply require the parties to get

back in the courtroom, get to final judgment without losing another year to

mandamus struggles, and bring the matter up on appeal.

First, the federal courts have a good track record with allowing such review:

“An order granting a new trial is not appealable, but it is certainly reviewable. On

appeal from the final judgment following the second trial, the appellant may claim

error in the grant of the new trial. If the appellate court agrees, it will reinstate the

verdict reached at the first trial.” 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER,

MARY KAY KANE & ALLAN STEIN, FEDERAL PRACTICE AND PROCEDURE § 2818 (3d

ed. 2025).3

Second, adopting the federal approach would strike a sensible balance. It

would protect the right to a fair trial while also protecting the courts and the parties

3
See, e.g., Latino v. Kaizer, 58 F.3d 310, 314 (7th Cir. 1995) (“An order granting a new trial
is not a final order within the meaning of 28 U.S.C. § 1291 and is therefore generally not
immediately appealable. Nevertheless, after a new trial and entry of final judgment an appellate
court entertaining an appeal from the final judgment may review the decision to grant a new trial
and, where appropriate, reinstate the original verdict.”); Wallake Power Sys., LLC v. Engine
Distribs., Inc., No. 22-3399, 2023 WL 3966740, at *5 n.7 (6th Cir. June 13, 2023) (similar);
Duncan v. Duncan, 377 F.2d 49, 52 (6th Cir. 1967) (“[I]t is clear that such orders [granting a new
trial] are reviewable on appeal from the final judgment in the second trial.”).
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from the inefficiencies of mandamus practice. Mandamus comes with costs. For

every petition that we grant, there may be ten or twenty more that we deny. The

success rate of mandamus petitions has historically been in the low single digits. See

Patricia J. Askew, “Click Bait” for the Courts, and Other Mandamus Practice Tips

44, State Bar of Texas, Advanced Trial Strategies Course (2025). Perhaps the rate

is higher for new trial grants, but whatever it is, some mandamus petitions will fail,

with all the attendant expense in time and money.

That expense will be substantial. Start with money. To pursue mandamus

review of an order granting a new trial, the seasoned practitioner typically files the

entire trial record—every exhibit, every scrap of testimony, everything—rather than

face the risk of the petition being dead on arrival for want of an adequate record.

The cost of getting a full record will outrun the cost of a discovery mandamus about

overbroad interrogatories or the like.

Next comes lawyer time, which means more money. Mandamus also takes

up court time and resources. In contrast to the era when my career began, today’s

appellate courts have more and more staff attorneys who do more and more

mandamus, with some doing little else.

Finally, review by ordinary appeal after the new trial would be consistent with

the twenty-first century world. Although some older cases arguably foreclose the

position taken here, those precedents strike me as obsolete. Shortly before the dawn

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of the Toyota era, Texas usually said no to review of an order granting a new trial.

The two exceptions to that rule were so narrow as to be unworthy of attention here.

See Johnson v. Fourth Ct. of Appeals, 700 S.W.2d 916, 918 (Tex. 1985) (orig.

proceeding). The saying was that a trial judge could grant a new trial for good

grounds, bad grounds, or coffee grounds.

The main precedent against ordinary appellate review was a default judgment

case called Cummins v. Paisan Construction Co., 682 S.W.2d 235 (Tex. 1984) (per

curiam). There a trial court set aside a default judgment and proceeded to trial on

the merits. Id. at 235. On appeal after the (only) trial, this Court examined the new

trial order and found that the evidence supported setting aside the default judgment.

Id. at 235–36; see Cummins v. Paisan Constr. Co., 682 S.W.2d 323, 325–26 (Tex.

App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).

The supreme court denied review. Its short per curiam opinion stated that “the

trial court’s order setting aside the default judgment and granting the motion for new

trial is not reviewable on appeal.” Cummins, 682 S.W.2d at 235–36. The opinion

stated that this Court reached the right result for the wrong reason. Id. at 236.

Obviously, Cummins involved a default, not a trial to the bench, as occurred here, so

it may well be distinguishable.

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The world of Cummins traced back to at least 1961 and maybe even earlier.4

Today, however, it seems to me that the world of Cummins has ceased to exist. That

world fell away with the most recent supreme court decisions, from the Toyota

trilogy to Bent and Rudolph. So to the extent that the federal approach proposed

here—allowing ordinary appeal after a second trial—faces a wall of older Texas

cases, the proper response should be the phrase once spoken about a different barrier

of roughly the same vintage: “Tear down this wall.”

David Gunn
Justice

Panel consists of Justices Rivas-Molloy, Gunn, and Caughey.

Justice Gunn, concurring.

4
The decision in Cummins relied on Burroughs v. Leslie, 620 S.W.2d 643, 644 (Tex. Civ.
App.—Dallas 1981, writ ref’d n.r.e.), which in turn traced back to Ebaugh v. State, 342 S.W.2d
221, 222–23 (Tex. Civ. App.—Austin 1961, writ ref’d n.r.e.), but the reasoning of Ebaugh flows
out of the old regime of courts losing powers after expiration of the “term” of court. See Ebaugh,
342 S.W.2d at 222–23. The Ebaugh decision arguably relies on a 1949 opinion from El Paso,
which states:

Under the seventh point we are asked to review the action of the trial court in
granting a new trial after the first trial. The defendant in its brief concedes the matter
of granting and refusing new trials is a matter within the discretion of the trial court
and that no appeal lies from the order made granting the new trial, but it insists this
court has the power now to consider the claimed error and to reverse the judgment
rendered on the second trial and direct the reinstatement of the judgment first
entered at the first trial. This we think may not be done. To do so would be to do
indirectly what cannot be done directly. The concession disposes of the point.

Equitable Life Assurance Soc’y v. Murdock, 219 S.W.2d 159, 164 (Tex. Civ. App.—El Paso 1949,
writ ref’d n.r.e.). But the El Paso opinion seems to be the view of one justice, not a holding of the
court. See id. at 165 (McGill, J., concurring).
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