Justice David Gunn
Texas appellate courts have long permitted a party to seek mandamus relief if a trial court set aside a jury verdict and ordered a new trial. But they have also denied a party’s right to appeal a new trial order from a bench trial.
This was the question before the Houston [1st] Court of Appeals in In re Cheryl Verret (no. 01-25-00390-CV; October 28, 2025). In this case a judge conducted a bench trial and signed a final judgment. That judge left office before the expiration of her plenary power. Her successor used that power to set aside the judgment and order a new trial, despite not having sat through any of the trial. The party who won the case understandably sought to reverse that order by filing a petition for writ of mandamus. Dutifully following precedent, the court of appeals denied the petition.
In a concurring opinion, however, Justice Gunn asks whether it makes any sense to allow a party to seek mandamus relief in one situation but not in the other. After all, he reasons, “[l]itigants 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.” The position that jury trials deserve special treatment is based on a line of SCOTX authority stretching back at least two decades, and, according to Justice Gunn, “those cases bit better with a mandamus denial here than with a grant.” But that doesn’t mean things should stay that way in the future.
“All that said,” Justice Gunn goes on, “Texas could improve the system with one simple step: allow for review of new trial orders by ordinary appeals 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.” Observing that “the federal courts have a good track record with allowing such review,” Justice Gunn argues that the federal approach “would protect the right to a fair trial while also protecting the courts and the parties from the inefficiencies of mandamus practice.” Those “inefficiencies” include the considerable cost of the process and the low grant rate.
In order to change the law, SCOTX would have to distinguish (or jettison) its opinion in Cummins v. Paisan Construction Co., 682 S.W.2d 235 (Tex. 1984) (per curiam), in which a trial court set aside a default judgment and conducted a trial on the merits. After the First Court of Appeals upheld the trial court’s order on appeal, SCOTX denied review, stating that “the trial court’s setting aside the default judgment and granting the motion for new trial is not reviewable on appeal.” Justice Gunn concludes that “the world of Cummins has ceased to exist…. So to the extent that the federal approach proposed here—allowing ordinary appeal after the 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.’”
We agree with Justice Gunn. In our current environment in which many trial court benches turn over every two to four years and courthouses have (unfortunately) become susceptible to the same no-holds-barred mentality of the other branches of government, litigants who win their bench trial should at least have a shot at preserving the initial outcome when a new judge decides willy-nilly to give the losing litigants a mulligan.
