A parent sets up a trust to care for a child who will need help for the rest of his life. The parent names three trustees and tells them to make every decision together. That works fine while the parent is alive and running the show. Then the parent dies, and the two trustees left behind can’t agree on anything.
Texas law lets a court step in and change a trust when its terms stop working. But when trustees fight over whether a trust should be changed, who makes that call? A judge, or a jury? The statute that gives courts the power to modify a trust doesn’t say.
The Texas Supreme Court took up that question in In re Troy S. Poe Trust, 646 S.W.3d 771, No. 20-0179 (Tex. June 17, 2022). The Court had to decide whether the Texas Trust Code gives the parties to a trust-modification case a right to a jury trial.
What Happened in Poe Trust?
Richard C. “Dick” Poe created the Troy S. Poe Trust in 2007 to provide for his son Troy, who has cerebral palsy and needs round-the-clock care. Troy is the only beneficiary. When Troy dies, the trust ends and what’s left goes to Dick’s descendants. Dick named three trustees: himself, his other son Richard C. Poe II, and his longtime accountant, Anthony Bock. The trust required the trustees to act “jointly,” which everyone agreed meant every decision had to be unanimous.
The trust also had a long-term Care Agreement with Troy’s caregiver, Angel Reyes. Reyes lived with Troy in a home Dick built and cared for him full time. Reyes was paid a salary and reimbursed for “reasonable out-of-pocket expenses for Troy’s care,” subject to a monthly cap that started at $1,500 and had grown to $1,613 by the time of trial. With Reyes’s help, Troy lived an active life. He skied, swam, hosted friends, and traveled.
While Dick was alive, he ran the trust himself. He approved expenses on his own, sometimes above the monthly cap, and the other two trustees never objected. After Dick died, Bock took over and tried to follow Dick’s practices. But Bock and Richard’s relationship fell apart. Bock was also co-executor of Dick’s estate, and Richard came to believe Bock was acting against his interests. Richard sued Bock and tried to have his CPA license revoked.
The fight spilled into the trust. Richard’s lawyer demanded that Bock “strictly comply” with the requirement that the trustees act jointly. Richard refused to preapprove recurring expenses, accused Bock of stealing, and objected to expenses he thought benefited Reyes’s family and friends instead of Troy. Bock said Richard ignored and delayed his requests for approval. Eventually Bock refused to talk to Richard at all except in writing.
Bock asked the El Paso probate court to modify the trust. He wanted to add a third trustee, get rid of the unanimity rule, and spell out what the trustees should consider when making distributions for Troy. Troy, through his guardian ad litem and attorney ad litem, supported the request. Richard opposed it, filed a counterclaim against Bock for breach of trust, and demanded a jury.
The probate court denied the jury demand and held a two-day bench trial on the modification request alone. The judge found that, because of changed circumstances since Dick’s death, “the purposes of the Trust have become impossible to fulfill, and modification will further the Trust purposes.” The court added a third trustee, allowed majority-vote decisions, authorized vacation and travel-companion expenses for Troy, and directed the trustees to give “primary consideration” to Troy’s needs. Richard’s counterclaim was severed into a separate case.
Richard appealed, and the El Paso Court of Appeals reversed. It held that the Trust Code gave Richard a right to a jury and that denying him one was harmful error. Bock and Troy took the case to the Texas Supreme Court.
How Can a Texas Court Change a Trust, and Where Does a Jury Fit In?
To understand the jury question, we first have to look at where a court gets the power to rewrite a trust at all. Before the Trust Code, Texas courts used the common-law “doctrine of deviation.” A court could depart from a trust’s terms when following them had become impossible or impractical, or when circumstances the settlor never anticipated would defeat the trust’s purpose.
The Legislature essentially wrote that doctrine into Texas Property Code Section 112.054. On the petition of a trustee or beneficiary, a court can change the trustee, modify the trust’s terms, or direct the trustee to do (or not do) things the trust otherwise requires or forbids. But the petitioner has to prove at least one of five grounds. Bock relied on the first two: that “the purposes of the trust have been fulfilled or have become illegal or impossible to fulfill,” and that “because of circumstances not known to or anticipated by the settlor, the order will further the purposes of the trust.” Tex. Prop. Code § 112.054(a)(1), (2).
Even then, the court can’t rewrite the trust however it likes. Section 112.054(b) requires the court to make any modification “in the manner that conforms as nearly as possible to the probable intention of the settlor.” In practice, that means the judge has to keep asking what the person who created the trust would have wanted.
Section 112.054 never mentions a jury. So where would a jury right come from? There are two possible sources. The first is statutory. Property Code Section 115.012 says that “[e]xcept as otherwise provided, all actions instituted under this subtitle are governed by the Texas Rules of Civil Procedure and the other statutes and rules that are applicable to civil actions generally.” Those rules include procedures for requesting a jury.
The second source is the Texas Constitution, which guarantees a jury in two places. The Bill of Rights says the “right of trial by jury shall remain inviolate.” Tex. Const. art. I, § 15. That covers the kinds of cases a jury would have heard in 1876, which generally did not include equitable matters like trust deviation. The Judiciary Article is broader. It 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. That guarantee reaches equitable cases too. But for more than a century, Texas courts have held that some proceedings, like election contests and civil contempt hearings, aren’t “causes” at all, so no jury right attaches.
How Did the Court Decide Poe Trust?
The Supreme Court started with the statute, since courts avoid constitutional questions when a case can be decided on other grounds. Its answer was short: Section 112.054 does not create a right to a jury. The heading of the statute refers to “Judicial Modification,” and the text talks only about the “court,” “its discretion,” and “its decision.” Nothing in it mentions a jury.
Richard argued that the statute was merely silent, and he pointed to other statutes where the Legislature expressly took jury trials away, such as adoption and parentage suits under the Family Code. The Court wasn’t persuaded. The Legislature also knows how to create a jury right when it wants to. The Family Code does exactly that for most suits involving children. Section 112.054 doesn’t.
That left Section 115.012, the provision the court of appeals relied on. The Supreme Court rejected the idea that the Rules of Civil Procedure create a jury right just because they explain how to request one. The rules on demanding a jury are “prerequisites to a jury trial, not guarantees of one,” the Court said, quoting In re Prudential Insurance Co. of America, 148 S.W.3d 124 (Tex. 2004). They assume a litigant already has a jury right to invoke. In the Court’s words, “The Trust Code’s incorporation of the Rules of Civil Procedure cannot be construed to create a jury right where one does not already exist.” So neither Section 112.054, Section 115.012, nor the rules themselves gave Richard a jury.
That didn’t end the case, because the Constitution was still in play. On rehearing in the court of appeals, Bock and Troy had argued for the first time that a trust-modification proceeding isn’t a “cause” under the Judiciary Article. They said it’s a special proceeding that lacks the features of an ordinary lawsuit. Richard said they waived that argument by raising it so late. The Supreme Court disagreed. Bock and Troy won in the trial court and didn’t have to raise every possible argument as appellees. Their complaint came from the court of appeals’ ruling itself, so a motion for rehearing was a proper place to raise it.
But the Supreme Court declined to decide the constitutional question itself. The court of appeals had never addressed it, and the Supreme Court doesn’t usually want to be the first court to resolve novel questions with consequences far beyond one case. It reversed and sent the case back to El Paso to decide whether a trust-modification proceeding is a “cause.”
Justice Busby, joined by Justices Devine and Young, agreed with the result but wrote separately to criticize the state of Texas jury-trial law. In his view, a century of case-by-case exceptions has left the Judiciary Article in a place where “all causes” does not mean all causes. He called the current law “a hodgepodge of confusing precedents and indeterminate adjectives,” and he offered a framework for sorting the cases into categories. One of his points matters a lot for probate lawyers: Texas courts have long held that contested probate matters, like will contests and the rights of heirs, can turn on fact disputes that a jury resolves.
On remand, the El Paso court answered the constitutional question. In In re Troy S. Poe Trust, 673 S.W.3d 395, No. 08-18-00074-CV (Tex. App.—El Paso July 28, 2023), a divided panel held that “a trust-modification proceeding cannot be considered a Judiciary Article cause for which a jury-trial right exists and is instead a special proceeding that falls outside the scope of that grant.” The majority reasoned that a modification petition isn’t a plaintiff suing a defendant for a wrong. Bock wasn’t seeking a judgment against Richard. Richard was in the case only because every trustee and beneficiary has to be joined. The court then upheld the probate court’s modifications. Richard’s separate breach-of-trust claim against Bock, on the other hand, is an ordinary lawsuit, and the probate court had set that claim for a jury trial.
Richard went back to the Supreme Court, which denied review on August 16, 2024, and denied rehearing that October. Justice Busby, again joined by Justices Devine and Young, wrote that he disagreed with the court of appeals’ reasoning about what counts as a “cause.” But he concurred in the denial because, after reviewing the briefs, he concluded “there is no disputed question of fact here for a jury to decide.” The parties didn’t dispute what the trust’s purposes were or how circumstances had changed. They disagreed about whether those undisputed facts justified a modification, and that is a question for the judge.
The Takeaway
Poe Trust settles one thing: the Trust Code does not give anyone a right to a jury in a suit to modify a trust under Section 112.054. And after the remand, at least in the El Paso court of appeals, the Texas Constitution doesn’t either. A judge decides whether a trust should be changed and how. The Supreme Court left the constitutional reasoning for another day, and three justices have signaled that a modification case with real factual disputes might come out differently. For now, though, anyone heading into a modification fight should plan on trying it to the bench.
That has practical consequences. If you’re a co-trustee who wants the trust changed, your audience is a probate judge, and your case is about the settlor’s purposes and what has changed since the trust was signed. If you’re on the other side and you believe a co-trustee has done something wrong, that’s a different claim. A breach-of-trust or breach-of-fiduciary-duty suit is an ordinary lawsuit, and you can ask for a jury on it, just as Richard did here. And if you’re setting up a trust with multiple trustees, think hard about a unanimity requirement and a tie-breaker. A trust that works only when one strong-willed settlor is in charge can end up in court the moment he’s gone.
Our West Texas Probate Attorneys provide a full range of probate services to our clients, including helping with trust modification petitions, disputes between co-trustees, and breach-of-trust claims. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience that we can use to support and guide you with probate and estate matters. Call us today for a FREE consultation.
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