Error Preservation in Texas Civil Cases, January 6, 2017

Dear All:

Other than the cases holding that parties did not preserve error because they did not raise an issue at all at trial, the last two weeks were a pretty light haul.  But the courts reminded us that a couple of things you can raise for the first time on appeallack of subject matter jurisdiction, and, in a non-jury trial, a factual insufficiency complaint:


  • Factual Sufficiency: “In its brief, the Department argues E.L. failed to preserve his factual sufficiency complaint by failing to file a motion for new trial. However, “[i]n a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex. R. App. P. 33.1(d);”In the Interest E.E.L., No. 04-17-00536-CV, 2018 Tex. App. LEXIS 43, at *6 n.1 (App.—San Antonio Jan. 3, 2018)
  • Subject Matter Jurisdiction: “Mother does not assert that she raised her jurisdictional complaint in the trial court, and we have not found anything in the record suggesting she did so. But HN1 as a general rule “[j]urisdiction may be raised for the first time on appeal and may not be waived by the parties.” Univ. of Houston v. Barth, 313 S.W.3d 817, 818 (Tex. 2010) (per curiam). So we address Mother’s argument.” In the Interest of G.E.D., No. 05-17-00160-CV, 2018 Tex. App. LEXIS 8, at *6 (App.—Dallas Jan. 2, 2018)

I hope this helps. Y’all take care.


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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