Error Preservation in Texas Civil Cases, August 1, 2020

August 1, 2020

Hi, Buckaroos!  We are within sight of the end of the courts’ fiscal year, and we can expect their opinion production to ramp up over the next month.  And I’ve found that sometimes that ramped up production coincides with interesting error preservation decisions.

Table of Contents

Rarely, an issue arises about whether a trial court can consider, as evidence, the unsworn factual representations of an attorney at a hearing. Remember: you have to object to the fact that those factual representations are unsworn

Unsworn Attorney Representations at Summary Judgment Hearing

We have an interesting case in which the court of appeals held that the trial court’s forfeiture order was not void for lack of jurisdiction, and therefore the state waived its complaint about the order by failing to raise it in the trial court

Order

You have to comply with other pertinent rules

Findings and Conclusions

The Blurbs

Rarely, an issue arises about whether a trial court can consider, as evidence, the unsworn factual representations of an attorney at a hearing. Remember: you have to object to the fact that those factual representations are unsworn:

Unsworn Attorney Representations at Summary Judgment Hearing: “In its fourth issue, the State argues the trial court abused its discretion “by considering the unsworn oral representations of Martinez as evidence at the summary-judgment hearing.” However, the State did not object to any representations of fact Martinez made during the summary judgment hearing. See Tex. R. App. P. 33.1. While the State now contends it was not required to contemporaneously object because Martinez did not testify under oath, its cited authority does not support that assertion. . . . Moreover, the State’s argument is contrary to the Texas Supreme Court’s holding that while an attorney’s statements normally “must be under oath to be considered evidence . . . the opponent of the testimony can waive the oath requirement by failing to object when the opponent knows or should know that an objection [*14] is necessary.” Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). We therefore hold the State waived appellate review of this issue by failing to object in the trial court, and we overrule the State’s fourth issue. Tex. R. App. P. 33.1; Banda, 955 S.W.2d at 272.” State v. Forty-Five Thousand & Eight Hundred Ten Dollars & Ten Cents ($45,810.10) in United States Currency, No. 04-19-00636-CV, 2020 Tex. App. LEXIS 5875, at *13-14 (Tex. App.—San Antonio July 29, 2020)

Here is an interesting case in which the court of appeals held that the trial court’s forfeiture order was not void for lack of jurisdiction, and therefore the state waived its complaint about the order by failing to raise it in the trial court:

Order: “In its eighth issue, the State argues the summary judgment order [of forfeiture] is void because it violates article 59.08 of the Texas Code of Criminal Procedure. . . . . The State contends the trial court’s order violates this “mandatory” statute because it orders the State to return the seized funds to Gonzalez before the expiration of appellate deadlines or the issuance of a final mandate. Because the State did not raise this argument in the trial court, we may not consider it unless the State successfully shows the trial court had “no jurisdiction to enter the judgment.” Tex. R. App. P. 33.1; . . .Nothing in the first provision of article 59.08 acts as a mandatory, jurisdictional directive to trial courts. Instead, that language grants prosecutors [*30] in civil forfeiture cases permission to deposit seized funds in interest-bearing accounts. Tex. Code Crim. Proc. art. 59.08(a); see also Tex. Gov’t Code § 311.016(1). While the second provision of article 59.08 provides that a trial court “shall” distribute funds upon the rendition of a final judgment, nothing in its plain language prohibits a trial court from ordering the distribution of funds under other circumstances. Tex. Code Crim. Proc. art. 59.08(b). We conclude the State’s interpretation of article 59.08 is not supported by that statute’s plain language. . . . Because the State has not shown the trial court’s order is void, it waived its challenge under article 59.08 by failing to raise it in the trial court. Tex. R. App. P. 33.1. We overrule the State’s eighth issue.” State v. Forty-Five Thousand & Eight Hundred Ten Dollars & Ten Cents ($45,810.10) in United States Currency, No. 04-19-00636-CV, 2020 Tex. App. LEXIS 5875, at *28-31 (Tex. App.—San Antonio July 29, 2020)

You have to comply with other pertinent rules:

Findings and Conclusions: “The trial court rendered judgment by letter on August 8, 2018. Mother timely filed her request for findings of fact and conclusions of law under Rule 296 on August 10, 2018. See Tex. R. Civ. P. 296, 306c. The trial court signed the final decree on October 24, 2018; we therefore deem Mother’s request for findings of fact and conclusions of law to have been filed on that same date. See Tex. R. Civ. P. 306c. Thus, the trial court’s findings of fact and conclusions of law were due twenty days later—November 13, 2018. See Tex. R. Civ. P. 297. After the trial court did not issue them, Mother’s notice of past due findings of fact and conclusions of law was due November 23, 2018, thirty days after the date of her deemed request. See id.; Tex. R. Civ. P. 306c; Cobb v. Cobb, No. 03-14-00325-CV, 2016 Tex. App. LEXIS 5936, 2016 WL 3136886, at *3 (Tex. App.—Austin June 3, 2016, pet. denied) (mem. op.). However, Mother did not file her notice of past due findings and conclusions until November 29, 2018, which was untimely. See Tex. R. Civ. P. 297. Mother has therefore waived error as to the absence of findings of fact and conclusions of law under Rule 296.” S.L. v. S.L., No. 02-19-00017-CV, 2020 Tex. App. LEXIS 6002, at *14 (Tex. App.—Fort Worth July 30, 2020)

We then had a slew of cases in which parties failed to preserve their complaints because they did not raise those complaints in the trial court, but I won’t set those out here.

Y’all stay safe and well.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

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