Jury Waiver

The right to a jury trial in a civil case can be given up by agreement, before any dispute exists. Texas allows it and enforces it, which surprises out-of-state counsel arriving from jurisdictions where pre-dispute waivers are void.

The contractual waiver

In re Prudential Insurance Co. of America, 148 S.W.3d 124 (Tex. 2004), settled the question. Contractual jury waivers do not violate public policy and are enforceable. The court also allocated the burden in a way that rewards good drafting. A conspicuous waiver provision is prima facie evidence of a knowing and voluntary waiver, and the burden then shifts to the party opposing enforcement to show that it was not. Parties who sign contracts are presumed to know what is in them.

Conspicuousness is the whole ballgame in practice. A waiver set in capitals, in its own paragraph, under its own heading, and initialed where the deal permits, is very hard to attack. A waiver buried in a miscellaneous provisions section in the same typeface as everything around it invites the argument that it was not conspicuous and therefore not knowing.

Enforcement runs through mandamus. A trial court that refuses to give effect to a valid waiver and sets the case for a jury commits an error that cannot be adequately remedied on appeal, because the harm is the trial itself.

Waivers in governing documents

S.B. 29 added Tex. Bus. Orgs. Code § 2.116, effective May 14, 2025. A domestic entity's governing documents may contain a waiver of the right to a jury trial concerning any internal entity claim, and the waiver is enforceable whether or not the governing document was signed by the members, owners, officers or governing persons. A person asserting an internal entity claim is treated as informed of the waiver if that person voted for or affirmatively ratified the document, or acquired an equity security at a time when the waiver was in the governing documents, or continued to hold a listed equity security after the waiver was included.

Section 2.116 borrows its definition of internal entity claim from § 2.115, so it reaches derivative claims and disputes over governance, fiduciary duty and ownership interests. It does not reach ordinary commercial claims brought by outsiders. A vendor suing on an unpaid invoice is unaffected by anything in the bylaws.

Whether to use one

The case for a waiver is strongest where the dispute will be document heavy and the governing agreements are complex, and where a party's identity or industry is likely to play badly with a local jury. The case against is that a bench trial removes the settlement pressure a jury creates, and that some judges are less predictable than counsel assume on damages questions a jury would treat conservatively.

Note also the interaction with arbitration. A jury waiver and an arbitration clause do different things and can conflict when drafted together without care. If the agreement sends disputes to arbitration, the jury waiver is largely redundant and should be written as a fallback that applies only to claims a court retains.