Error Preservation in Texas Civil Cases, April 19, 2020

April 19, 2020

Hey Buckaroos.  I hope all goes well, and this finds you and yours safe and healthy.

I don’t have much to report this week–the courts seem to still remain busy churning out opinions, but not many involved error preservation issues (save for those in which the complaint was not raised at all in the trial court).

Table of Contents

On an evidentiary complaint, we are reminded that our complaint must be timely

On matters involving discovery questions and a habeas corpus, we are reminded that we  have to get a ruling on our complaint.

The Blurbs

Your complaint must be timely:

Evidence: “As a pragmatic matter, insofar as the basis of relators’ objection was [*71] their inability to make objections during the hearing, we conclude that relators had more than sufficient time to file objections to the plaintiffs’ evidence that was attached to their motion to strike. The plaintiffs’ motion to strike was filed on November 9, 2018, the hearing on sanctions began on November 26, 2018, and the trial court stated it was taking judicial notice on November 30, 2018. Essentially, the relators’ objections were not timely. See Tex. R. App. P. 33.1(a).” In re Sw. Pub. Serv. Co., No. 13-19-00111-CV, 2020 Tex. App. LEXIS 3212, at *70-71 (Tex. App.—Corpus Christi Apr. 16, 2020)

You have to get a ruling on your complaint:

Discovery: “In his second issue, Husband complains that the trial court deprived him of discovery, which he sought to obtain through a motion for mediation. This issue has not been preserved for appellate review because Husband did not set his motion for a ruling, nor has he shown that the trial court refused to rule on the motion. See Tex. R. App. P. 33.1.” Teamer v. Martin, No. 14-19-00017-CV, 2020 Tex. App. LEXIS 3175, at *3 (Tex. App.—Houston [14th Dist.] Apr. 16, 2020)

Habeas Corpus: “On October 15, 2019, between the first and second days of trial, Robert filed a pro se “Motion for Recusal” of the trial judge, alleging the trial judge is related by affinity or consanguinity with an unidentified complaining witness or interested party. In the affidavit supporting the motion to recuse, Robert also alleges the grounds for recusal are that “I am being bullied and made to do as this judge [*10] wants of me” and “[t]his judge will not allow me to proceed or represent myself.” HN3 “A motion to recuse . . . must not be filed after the tenth day before the date set for trial or other hearing unless, before that day, the movant neither knew nor reasonably should have known: (i) that the judge whose recusal is sought would preside at the trial or hearing; or (ii) that the ground stated in the motion existed.” Tex. R. Civ. P. 18a(b)(1). Robert’s motion demonstrates that before he filed the motion to recuse, Robert knew the trial judge would preside at trial and that the alleged grounds for recusal existed. Accordingly, because Robert’s motion to recuse does not comply with Rule 18a, he has waived the right to complain on appeal that the trial court did not take action upon the motion.” In the Interest of K.E.R., No. 04-19-00808-CV, 2020 Tex. App. LEXIS 3115, at *9 (Tex. App.—San Antonio Apr. 15, 2020)

All for now.  Y’all take good care.

Yours, Steve Hayes; 817/371-8759;


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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