## NO. 12

- 15

- 00194

- CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID HAYES, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM TH E

COUNTY COURT AT LAW NO

. 1

HENDERSON COUNTY, TE XAS

OPINION David Hayes appeals an order directing the animal control officer with the Henderson County Sheriff’s Office to humanely destroy three dogs pursuant to Chapter 822 of th e Texas Health and Safety Code. In one issue, Hayes claims the trial court committed reversible err or by denying him a jury trial. We reverse and remand.

B ACKGROUND On January 19, 2015, Mikel “Christop her” Kirkpatrick was riding a bicycle in the roadway in front Hayes ’s residence when Hayes ’s three dogs attacked him. A n officer from the Henderson County Sheriff’s Office executed an affidavit for seizure of the dogs

. The justice
court issued a w arrant to seize the three dogs. Following a hearing, the justice court found that the dogs were dangerous under section 822.041 of the Texas Health and Safety Code, and had caused serious bodily injury to a person

. The just ice court ordered t hat two of the dogs be humanely destroyed and the third dog be returned to Hayes

. Hayes appealed the justice court’s order to the county court at law and requested a jury
trial. 1 The Henderson County Attorney’s Office objected to the jury request. The county court at

1 It is undisputed that Appellant timely requested a jury and paid the required fee.2

law sustained the objection and removed the case from the jury docket. After a bench trial, the judge found the three dogs were dangerous, that Hayes was the owner of the dogs
, and t hat as a result of an unprovoked attack, Kirkpatrick suffered serious bodily injury. In accordance with these findings, the court ordered that the three dogs be humanely destroyed and ordered Hayes to

pay $2,780.00 to Henderson Coun ty. This appeal followed. 2

I SSUES P RESENTED In his sole issue, Hayes conten ds that the county court at law erred by removing his case from the jury docket and denying him a jury trial after his timely jury request and payment of the applicable fee. Henderson County did not contest the county court at law’s subject matter jurisdic tion

. However, on appeal, it asserts that Hayes had no right to appeal the justice court ’s ruling. Accordingly, this case presents two questions for our review : (1) whether the owner of a dog ordered to be humanely destroyed by a justice, county
, or muni cipal court judge
, pursuant to Chapter 822, subchapter A, of the Texas Health and Safety Code, has the right to appeal such order; and (2) if an appeal is allowed, whether a jury can be requested to hear the de novo appeal.

R IGHT TO A PPEAL THE J USTICE C OURT ’ S O RDER We first address Hayes ’s right to appeal the justice court’s order to the county court at
law be cause it directly affects this C ourt’s jurisdiction. Standard of Review and Applicable Law

“ Subject matter jurisdiction is essential to the authori ty of a court to decide a case. ” Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 8 52 S.W.2d 440, 443 (Tex. 1993). It is never presumed
and cannot be waived. Id

. at 443

- 44. An appellate court is obligated, even sua sponte , to deter mine the thre shold question of jurisdiction. See Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd

. , 95 S.W.3d 511, 514 (Tex. App.

— Houston [1st Dist.] 2002, no pet.). The
existence of subject matter jurisdiction is a question of law that we review de n ovo. Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004).
The construction of a statute is also a que stion of law we review de novo. See First Am. Title Ins. Co. v. Combs , 258 S.W.3d 627, 631 (Tex. 2008). When interpreting a stat ute, we look

2 The record does not indicate that the dogs have been euthanized, or otherwise passed away since Hayes filed his notice of appeal , and the parties have not advi s ed us o f such. Accordingly, we presume there are live issues before us on appeal, and the issues are not moot at the time this opinion is being delivered

.3

first to the p lain meaning of the words used. Id

. If the statute is clear and unambiguous, we apply its words according to their common meaning in a way that gives effect to each word, clause, and sentence. Id

. We do not resort to extrinsi c aides, such as legislative history, to interpret a clear and unambiguous statute

. Sullivan v. Abraham , 4 88 S.W.3d 294, 299 (Tex. 2016). We apply these same concepts when construing rule s of civil procedure. Bradt v. Sebek
, 14 S.W.3d 756, 762 (Tex. App

. — Houston [1st Dist.] 2000, pet. denied). Rule interpretation, like statutory interpretation, is a question of law over which the trial court has no discretion. Id

. Discussion Chapter 822 of the Texas Health and Safety Code governs the regulation of anim als.
T EX

. H EALTH & S AFETY C ODE A NN . §§ 822.001

- .116 (West 2010 & Supp. 2016 ). Under

s ubsection A , upon the receipt of a sworn complaint stating that a dog caused serious bodily injury, a justice , county , or municipal court must order an imal control to seize the dog. Id

. § 822.002(a) (West 2010)

. The court must then conduct a hearing
, within ten days after issuance
of the warrant
, to determine whether (1) the dog caused serious bodily injury by attacking, biting, or mauling someone
, and (2) if it sh ould be destroyed or released. Id

. § 822.003(a), (e) (West 2010)

. Subchapter A is silent as to the right of appeal from such an order. See id

. §§ 822.001

-

. 007. On appeal, Henderson County cites Pitts v. State , 918 S.W. 2d 4 (Tex. App.

— H ouston [14 th Dist.] 1995, no pet.) to support its contention that the county court at law lacked jurisdiction over Hayes’s appeal

. Pitts dealt with C hapter 821 of the Texas Health and Safety
Code
, which provide s a limited right to appeal an order divestin g ownership of animals whe n a justice court f

inds animal cruelty
, depending on whether the order directed the animals to be sold at public auction, given to a nonprofit shelter
, or humanely destroyed. See Pitts , 918 S.W. 2d at
4

- 5 ; see also T EX

. H EALTH & S AFETY C ODE A NN . §§ 821.001

- .081 (West 2010 & Supp. 2016 )

. The numerous amendments to C hapter 821
, and disagreement between appellate courts in interpreting an owner’s right to appeal under the statute’s various versions
, is outlined in Garcia
v. State , Nos . 14

- 11

- 00241

- CV and 14

- 11

- 00617

- CV, 2012 WL 2928576, *2

- 3 (Tex. App.

— Houston [14 th Dist.] July 19, 2012, no pet. ) (mem. op.)

. Garcia notes that the conflicting appellate holdings were effectively superseded by subsequent amendments to the statute, which make the county court at law’s decision final and unappealable, thus, their holdings do not apply to future cases and any conflict no longer require s resolution. See id

. at *2 n.4; see also T EX

.4

H EALTH & S AFETY C ODE A NN . § 821.025 ( West Supp. 2016 )

. Accor dingly, we do not view Pitts as controlling au thority on the issue before us. According to Henderson County
, an owner of a dog ordered destroyed pursuant to s ection 822.004 can only appeal that order if a right to appeal is expressed in the statute’s pla i n and unambiguous language. The argument continues that since s ubchapter A is silent as to the right
of appeal, the legislature intended that Hayes have no right to appeal the justice court’s order that
his dogs be destroyed. We acknowledge that the Legislature has the power to limit the right of appeal , including the authority to de ny the right to appeal entirely or to allow a limited right to appeal

. In re Jenevein , 158 S.W.3d 116, 119 (Tex. 2003) ; Howell Aviation Servs

. v. Aerial Ads,
Inc.
, 29 S.W.3d 321, 323 (Tex. App.

— Dallas 2000, no pet.). However, Henderson County has failed to cite any aut hority
, and we have found none
, that when a statute is silent as to a right of appeal, the legislature intended to eliminate that right

. W e decline to interpret subchapter A’s failure to expressly provide for a right to appeal an order that a dog be des troyed as legislative intent that such an order cannot be appealed

. Unlike in Chapter 821, the legislature has not expressly limited the right of appeal in subchapter
A of Chapter 822. See T EX

. H EALTH & S AFETY C ODE A NN . § § 821.025 , 822.001

- .007

. The legi slature could have imposed similar language in subchapter A had it intended to limit the right to appeal. Moreover, s ubchapter D of Chapter 822 , which addresses dangerous dogs, allows a party to appeal a justice court’s dangerous dog finding to a county co urt or county court at law
and affords that party the right to a jury trial on request. Id

. § 822.0424 (a) (West Supp. 2016)

. Both the justice court and the county court at law found the dogs to be dangerous under subchapter D. See T EX

. H EALTH & S AFETY C ODE A NN . § 822.041 (West 2010). Although

s ubchapter A contains no such express provision, we must construe the two provisions as a whole , not in isolation, and we must consider the consequences of a particular construction

. See Marcus Cable Assoc., L.P. v. Krohn , 90 S.W.3d 697, 706 (Tex. 2002). W e cannot construe subchapter A in a manner that is inconsistent with subchapter D , and we must construe the
statute to avoid constitutional infirmities. See i d

. A party’s right to an appeal is a sacred and
valu able right. Masterson v. Hogue , 842 S.W.2d 696, 698 (Tex. App.

— Tyler 1992, no pet.). We liberally construe r ules controlling appellate procedure in favor of the right to appeal. Consol

. Furniture Co

. v. Kelly , 366 S.W.2d 922, 923 (Tex. 1963).5

S ubcha pter D addresses “dangerous dog” findings and imposes requirements on owners in possession of a “dangerous dog.” See T EX

. H EALTH & S AFETY C ODE A NN . §§ 822.041

- .047. As previously discussed, s ubchapter A addresses the procedure by which a dog is taken from the owner and subject to being destroyed. See T EX

. H EALTH & S AFETY C ODE A NN

. § 822.001

- .007. Accordingly, subchapter A has graver consequences than subchapter D. Applying the rules of statutory construction , it is reasonable to conclude that the legisl ature felt it necessary to expressly provide for a right to appeal in a less severe provision of Chapter 822, and that an express grant of the right to appeal was not necessary for a provision involving the forfeiture of property, as the law does not favor the forfeiture of property rights and statutes are to be construed in favor of the right to appeal

. See Lira v. Greater Houston German Shepherd Dog
Rescue , Inc. , 488 S.W.3d 300, 304 (Tex. 2016) ( recogniz ing that pet dogs a re “property in the eyes of the law,” and a “sp ecial form of personal property ” ); see also Kelly , 366 S.W.2d at 923. Property rights are constitutionally protected; thus, we decline to construe the legislature’s silence in subchapter A as a deprivation of the right to appeal the taking o f one’s property. See
Lira , 488 S.W.3d at 304 ; see also Krohn , 90 S.W.3d at 706; T EX

. C ONST

. art. I, § 19

. This construction is also consistent with the legislature ’s express grant of original and appellate jurisdiction to the county court at law with resp ect to all cases and proceedings

presc ribed by law for county courts. T EX

. G OV ’ T C ODE A NN

. § 25.0003(a) (West Supp. 2013). Even when an appeal is not exp ressly provided by other laws, s ection 51.001(a) of the Texas
Civil Practice and Remedies Code states that a party may appeal a justi ce court’s ruling when the judg ment or amou nt in controversy exceeds $250. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 51.001(a) (West 20 15 ). It is presumed that the Legislature did not intend to make a statute jurisdictional
, which presumption may be overcome only with cle ar legislative intent to the contrary

. See City of DeSoto v. White , 288 S.W.3d 389, 39 3 (Tex. 2009). In this case, the justice court ordered an appeal bond of $500 and n othing in the record
indicate s that the amou nt in controversy does not exceed $250

. 3 Additionally, when a county court at law acts as an appellate court, its jurisdiction is “ limited to the same jurisdictional amount in controversy as what the justice court had. ” Thibodeau v. Dodeka, L.L.C. , 436 S .W.3d 23, 27 n.1 (Tex. App.

—

Waco 2014, pet. denied ). A justice court’s jurisdiction in civil matters is

3 The county court at law subsequently increased the bond to $2,500.6

limited to $10,000. See T EX

. G OV ’ T C ODE A NN

. 27.031(a)(1) (West Supp. 2016 )

. T he county court at law ordered that the seized dogs be destroyed and tha t Hayes pay Henderson County the sum of $2,780.00

. 4 Accordingly, the record contains evidence demonstrating that the amount in controversy exceeds $250. We, therefore, conclude that b ecause (1) s ubchapter A contains no express language den ying or restric t ing the right to appeal an order to have a dog destroyed , and (2) section 51.001 provides a right to appeal a justi ce court’s ruling when the judg ment or

amou nt in controversy exceeds $250
, Hayes was entitled to appeal the justice court ’s order to the

cou nty court at law. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 51.001(a)

.

R IGHT TO T RIAL BY J URY Having determined that Hayes had the right to appeal the justice court ’s order to the county court at law , we now address whether Hayes had the right to a jury trial for his de novo appeal. Standard of Review and Applicable Law A trial court’s denial of a jury demand is generally reviewed under a n abuse of discretion

stan dard. See Mercedes

- Benz Credit Corp. v. Rhyne , 9 25 S.W.2d 664, 666 (Tex. 1996). That standard does not apply w hen the trial court’s decision is based on sta tutory and rule interpretation

. Manderschei d v. Laz Parking of Tex

. , L.L.C. , No. 01

- 13

- 00362

- CV, 2 016 WL 4144518, at *5 (Tex. App.

— Houston [1 st Dist.] August 4, 2016 , pet. filed ) ( mem. op. ). The construction of a statute is a que stion of law we review de novo. First Am. Title Ins. Co
., 258
S.W.3d at 631. In justice cour t cases, any party is entitled to a trial by jury upon timely written request

an d payment of the requisite fee. T EX

. R. C IV

. P . 504.1. Upon the perfection of an appeal from justice court, the case must be tried de novo in the county court. T EX

. R. C IV

. P. 506.3. “ A trial de novo is a new trial in which the entire case is presented as if th ere had been no previous trial. ”
Id

. To be entitled to a jury trial in the county court at law, a party must properly request a jury and pay the applicable fee. T EX

. R. C IV

. P . 21 6. “The right to jury trial is one of our most precious rights, holding ‘a sacred place in English and American history

. ’” Gen. Motors Corp. v. Gayle , 951 S.W.2d 469, 476 (Tex. 1997)

4 This amount represents the daily co st of housing the three dogs incurred by the Henderson County Humane Society.7

(quoting White v. White
, 196 S.W. 508, 512 (Tex. 1917)). Article I, section 15
, of the Texas
Constitution guarantees the right to a jury in all actions where that right existed, either under
common law or a statute

. See Holman s v. Trans ourc e Polymers, Inc

. , 914 S.W.2d 189, 192 (Tex. App.

— Fort Worth 199 5 , writ denied) ; see T EX

. C ONST

. art. I , § 15

. Section 15 expressly states that the right to a jury trial “shall remain inviolate.” T EX

. C ONST

. art. I , § 15. The right to a jury trial extends to disputed issues of fact in equitable, as well as legal, proceedings. Casa El Sol

- Acapulco, S.A. v. Fontenot , 919 S.W.2d 709, 715 (Tex. App.

— Houston [14 th Dist.] 1996, writ dism’d by agreement ). When the case contains material fact quest ions, the wrongful den ial of a jury trial is harmful. Mercedes

- Benz Credit Corp

. , 925
S.W.2d at 66 7 . Access to a jury need not be provided at the initial adjudication, so long as the right to appeal and the availability of a jury on appeal are secured. T ex . Workers’ Comp

. Comm’n v. Garcia
, 893 S.W.2d 504, 506 (Tex. 1995)

. T he right of trial by jury is not a bsolute
in civil cases , but is regulated by laws and rules that specify its availability

. In re Lesikar , 285 S.W.3d 577, 586 (Tex. App.

— Houston [14 th Dist.] 2009, orig. proceeding ); Black v. Jackson
, 82 S.W.3d 44, 55 (Tex. App.

— Tyler 2002, no pet.). Nevertheless, t he denial of the right to a jury is a very serious matter and restrictions of that right will be subjected to the u tmost scrutiny.
Bell Hel icopter Textron, Inc. v. Abbott , 863 S.W.2d 139, 141 (Tex. App.

— Texarkana 1993,
writ denied ).
Discussion
As with the right to appeal an order to have a dog destroyed , subchapter A is also silent

as to the right to a jury upon appeal

. Thus , we must deter mine whether the Texas Constitution fixes that right and if there is anything within C hapter 822 which limit s that right. We see no legal justification for the county court at law striking Hayes ’s timely jury request for his d e novo appeal. As previousl y discussed, a n order to have a dog humanely destroyed affect s a dog owner’s property right s

. Private property rights existed and were protected under the common law when the 1876 constitution was adopted. See Brewster v. City of Forney , 223 S.W. 175, 17 6 (Tex. 1920) (“The Constitution of Texas and the decisions of her courts reveal a zealous regard for the r ights of the individual citizen”); see also Berg Dev

. Co. v. City of Missouri City , 603 S.W.2d 273, 275 (Tex. Civ. App.

— Houston [14th Dist.] 1980, wr it ref’d n.r.e.) (“ the Texas Constitution and its interpretation by our Supreme Court, reflects the highest rega rd for personal property rights”); T EX

. C ONST

. art. I, § 19 (there can be no8

deprivation of property without due course of law). “ Private prope rty rights are a ‘ foundational
libe rty, not a contingent privilege

. ’ ” Lira , 488 S.W.3d at 304 ( quot ing Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline

- Texas, LLC , 363 S.W.3d 192, 204 n. 34 (Tex. 2012)). Pet dogs are property in the eyes of the law and a spe cial form of personal property. Id

. A forfeiture of property rights is not favored by the courts, and laws will be construed to prevent rather than to
cause such forfeiture. Id

. “ It is fundamental to our system of justice and the intention and policy of the law to permit all persons to have a trial by jury of any facts affe cting their property rights. ” Clayton v. Clayton , 308 S.W.2d 557, 564 (Tex. Civ. App.

— Texarkana 1957, no writ).
Our review of sub chapter A does not show the l egislature soug ht to limit the right to a jury’s determination of mat erial facts required to order a dog be humanely destroyed. Wh en it enacted the statute, the l egislature had the right to eliminate or restrict the right to a jury and
cho se not to do so , even in the mo st recent amendments to the statute

. See In re Jenevein , 158
S.W.3d at 119

. T he absence of language in a statute expressly allowing for a jury trial is not the
same as the l egislature int ending to eliminate that right. See PPG Indus

. , Inc. v. JMB/Housto n Ctrs

. Partners Ltd. P’ship , 146 S.W.3d 79, 84 (Tex. 2004) ( although “[a] statute’ s silence can be significant[,]” “l egislatures do not always mean to say something by silence ”). And, again, subchapter A involves graver consequences than subchapter D, in which the legislature expressly grants the right to a jury trial on appeal. If a provision regulating ownership of a dangerous dog allows for a jury trial, a provision involving the deprivation of one’s property certainly calls for the right to a jury tr ial

. Additionally, “[s] tatutes are given a construction consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance
with state and federal constitutions. ” Brady v. Fourteenth Court of Appeals , 795 S.W.2d 712, 715 (Tex. 1990). As such, w e cannot construe the legislature’s silence on the right to a jury trial in Chapter 822 as an intent to limit or abolish that right. See id

. Such a construction would be
inconsistent with both the Texas Const itution and the law recognizing that the right to a jury trial is fundamental in cases affecting property rights. See Clayton , 308 S.W.2d at 564 ; see also
Brewster , 223 S.W. at 176; see also Berg Dev

. Co. , 603 S.W.2d at 275; T EX

. C ONST

. art. I, § 19

. We understand that the nature of C hapter 822 is to provide a process for the swift seizure of dogs who kill or seriously injure a person so as to prevent potential future attacks , and that a jury trial could delay this process

. However, as previously noted, this process involves the9

forfeiture of a person’s property, particularly that of pets, which the law considers special property. See Lira , 488 S.W.3d at 304

. Forfeiture of property is not favored and the right to a trial by jury is fundamental in cases affecting property rights

. See id .; see also Clayton , 308
S.W.2d at 564. Moreover, the denial of the right to a jury trial cannot be sanctioned in any case where it reasonably appears guaranteed by the constitution
, even though the public interest
would be served by a speedy adju dication of the issues involved and a jury trial would necessarily involve a considerable delay. Hatten v. City of Houston , 373 S.W.2d 525, 533 (Tex.
Civ. App.

— Houston 1963, writ ref ’d n.r.e.). In this case, Hayes’s dogs were seized and the justice court order ed t hat they be humanely destroyed. This constituted a forfeiture of Appella nt’s special personal property. See
Lira
, 488 S.W.3d at 304. Accordingly
, Hayes’s right to a jury trial upon appeal to the county
court at law i s guaranteed under Article I, section 15, of the Texas Constitution. See T EX

. C ONST

. art. I , § 15 ; see also Holmans , 914 S.W.2d at 192

. For this reason, Hayes was entitled to

a jury trial for his de novo appeal , and t he county court at law abused its di scretion in striking the timely filed jury request and proceeding with a bench trial. Because the county court at law’s
order involved determination of material fact s required to justify the entry of an order to humanely destroy Hayes’s dogs , the wrongful denial of a jury trial was harmful

. See Mercedes

Benz Credit Corp

. , 925 S.W.2d at 664. Hayes’ s sole issue is sustained.

D ISPOSITION Having sustained Appellant’s sole issue, we reverse the trial court’s Final Order and
remand this cause to the county c ourt at law for further proceedings consistent with this opinion.

G REG N EELEY Justice
Opinion delivered March 31, 2017

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH , 2017

NO. 12

- 15

- 00194

- CV

DAVID HAYES, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the County Court at Law No

. 1 of Henderson County, Texas (Tr.Ct.No. C

- 7919)

THIS CAUSE came t o be heard on the appellate record and the briefs filed herein, and the same being considered, because it is the opinion of this court that there was error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court that the judgm ent be reversed and the cause remanded to the trial court for further proceedings ; and that this decision be certified to the court below for observance.

Greg Neeley , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.