Error Preservation in Texas Civil Cases, January 20, 2019

Dear All:

After a big push to get cases out the door before the end of the year, the courts seem to have taken a little breather.  So we do not have many error preservation rulings in the first three weeks of the new year.

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Some issues–like lack of subject matter jurisdiction–may be raised for the first time on appeal:


Subject Matter Jurisdiction: “Amaya argues that the State waived the issue of the trial court’s jurisdiction by failing to object either after receiving notice of his petition for non-disclosure or a copy of the trial court’s order. However, a relator, [*3] including the State, need not object to an order issued by a trial court prior to filing a petition for a writ of mandamus in an appellate court when the order is void. . . . .This is true because lack of jurisdiction is a fundamental error and may be raised for the first time in an appellate court. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). Additionally, subject-matter jurisdiction cannot be conferred by consent, waiver, or estoppel. . . . Assuming without deciding that the State did have notice of Amaya’s petition for non-disclosure and the trial court’s ruling, the lack of an objection does not preclude the State’s present petition for writ of mandamus as the trial court lacked jurisdiction to enter the order of non-disclosure.” In re State ex rel. Parsons, No. 10-17-00216-CV, 2019 Tex. App. LEXIS 91, at *2-3 (App.—Waco Jan. 9, 2019)

Your complaint on appeal must comport with the complaint you made at trial:


Evidence: “Stephens & Myers objected to the testimony but did not object on the grounds that the testimony “included pure questions of law and was unreliable”; the only objection went to a failure to disclose. To preserve error for appeal, the argument made in the trial court must comport with the argument made on appeal. See Tex. R. App. P. 33.1(a); Santander Consumer USA, Inc. v. Mata, No. 03-14-00782-CV, 2017 Tex. App. LEXIS 2631, 2017 WL 1208767, at *3 (Tex. App.—Austin Mar. 29, 2017, no pet.). Stephens & Myers has waived its complaint that Johnston’s testimony “included pure questions of law and was unreliable.”” Stephens v. Three Finger Black Shale P’ship, No. 11-16-00177-CV, 2018 Tex. App. LEXIS 10921, at *90 (App.—Eastland Dec. 31, 2018)

You have to comply with other pertinent rules–e.g., if your evidence is excluded, you must make an offer of proof:


Evidence: “Mitchell then asked the trial court, “So in essence you have eliminated [*6] all my evidence?” When the trial court indicated that it had, Mitchell responded, “Of course, I object to that,” but she did not make an offer of proof. Cf. Tex. R. App. P. 33.1(a)(1)(B); Tex. R. Evid. 103(a)(2). While her “Defendant’s List of Exhibits,” listing ten of the twelve items she attempted to offer into evidence, was filed in the clerk’s record, only nine of the items were filed in the clerk’s record. . . .But before we consider whether an abuse of discretion has occurred, the error must be preserved for our review. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(2). No amount of inapplicable legal principles or misused legal jargon can overcome the threshold requirement that error, if any, must be preserved. And, at the end of the day, Mitchell failed to make the required offer of proof at trial necessary to preserve her evidentiary complaints.” Mitchell v. Wilmington Sav. Funds Soc’y, No. 02-18-00089-CV, 2019 Tex. App. LEXIS 144, at *7 (App.—Fort Worth Jan. 10, 2019)

Then there were a few cases in which the parties failed to raise their complaints in the trial court.

All for now.  I hope this helps.

Yours, Steve Hayes


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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