Error Preservation in Texas Civil Cases, November 28, 2020

November 28, 2020

Dear All:
I hope everyone enjoyed a great and safe Thanksgiving.  It was a gorgeous day, and now we look forward to some cold(ish) weather.

Table of Contents

Certain complaints about an interpreter may necessitate a motion for new trial, and an evidentiary hearing on that motion

You can first raise a complaint about subject matter jurisdiction on appeal

If you agree to a ruling, you probably have not preserved a complaint about it


You have to comply with the pertinent rules

Factual Sufficiency

The Blurbs

I included the entire discussion of a party’s complaint about an interpreter because I suspect this may come up not infrequently, especially in our larger cities and in the Valley. Though not involved here, remember certain complaints about an interpreter may necessitate a motion for new trial, and an evidentiary hearing on that motion:

Interpreter: “Generally, to preserve error for appellate review, the record must show that the complaining party made a timely request, objection, or motion, with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1. The party must also obtain a ruling on that request, objection, or motion.  Id.

A party is required to raise certain issues in a motion for new trial as a prerequisite to raising the issue on appeal. See Tex. R. Civ. P. 324(b). One such issue is a complaint on which evidence must be heard. Tex. R. Civ. P. 324(b)(1). In addition to raising the issue, it is the responsibility of the complaining party to obtain an evidentiary hearing on it.  . . . ; see Tex. R. App. P. 33.1(b). “The overruling by operation of law of a motion for new trial preserves a complaint raised in the motion for appellate review only if the taking of evidence was not necessary to properly present the complaint in the trial court.” Magna Donnelly Corp. v. DeLeon, 267 S.W.3d 108, 114 (Tex. App.—San Antonio 2008, no pet.).

We turn now to Olga’s complaints on appeal.

Qualification of the interpreter

Olga first contends that the interpreter provided to assist her at the final hearing was not qualified. Jesus argues that this issue is not preserved for review. See Tex. R. App. P. 33.1. We conclude that the asserted error was adequately raised in Olga’s amended motion for new trial. In addition, as the issue is argued by Olga, it is not one that requires the taking of evidence. We conclude that the issue is properly preserved.

The Texas Rules of Evidence require that “[a]n interpreter must be qualified and must give an oath or affirmation  to make a true translation.” Tex. R. Evid. 604. In counties with a population of less than 50,000, “a court may appoint a spoken language interpreter who is not a licensed court interpreter.” Tex. Gov’t Code Ann. § 57.002(c). The interpreter need only be at least 18 years old, not a party to the proceeding, and qualified by the court as an expert. Tex. Gov’t Code Ann. § 57.002(e). “An attack on the competency of an interpreter is reviewed for an abuse of discretion.” M.M.V. v. Texas Dep’t of Family & Protective Servs., 455 S.W.3d 186, 190 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

Olga does not dispute that the interpreter was over the age of 18 and that he was not a party to the proceeding. See Tex. Gov’t Code Ann. § 57.002(e). Rather, she disputes his actual ability as a translator. In this context, Olga argues that the trial court was required to inquire on the record about the interpreter’s qualifications. She does not, however, cite any authority imposing that requirement. While Government Code section 57.002 requires that an interpreter be qualified by the court as an expert, it does not require that the court make an express finding on the record. See id. Further, the interpreter’s affidavit states that he is fluent in English and Spanish “at a high level” and has been engaged as an interpreter by the Mexican and Guatemalan consulates. Olga does not identify anything in the record refuting these qualifications, nor does she dispute them in her amended motion for new trial or in her brief on appeal.

Olga’s argument that the interpreter was unqualified rests on her criticism that he often paraphrased or summarized her answers rather than providing a more verbatim translation. She does not, however, contend that his explanations of her answers were inaccurate. Her complaint goes only to the form in which the interpreter relayed his translation, which does not implicate his qualification to accurately translate the proceedings for her.

Olga also insinuates that the interpreter was not qualified because he may have been one of the couple’s adult sons. Olga misinterprets the record. One of the couple’s sons, Jesus Tamez Suday, was present at the final hearing and took part in the off-the-record negotiations. But the son was not the same person as the interpreter, who identified himself on the record as Marcelino Sanchez Garcia.

Finally, Olga complains that the trial court did not administer the oath to the interpreter until “well into the proceedings.” But the record reflects that, while the court did not administer the oath at the start of the hearing, it did so quite early in the proceeding. The only topics  discussed prior to the administration of the oath were the fact of the divorce proceedings in Mexico and the extent of marital property in the United States. Much of those discussions was reiterated after the oath was administered. Again, Olga does not contend that the interpreter’s translations, either before or after administration of the oath, were inaccurate. She has not identified any harm resulting from the belated administration of the oath and none is apparent from the record. See Tex. R. App. P. 44.1 (harm required to show reversible error).

We conclude Olga has not demonstrated that the interpreter provided to assist her at the final hearing was not qualified to do so or that the timing of the oath caused her any harm. See Tex. R. Evid. 604; Tex. R. App. P. 44.1. Issue number one is overruled.” Suday v. Suday, No. 04-19-00832-CV, 2020 Tex. App. LEXIS 9218, at *10-14 (Tex. App.—San Antonio Nov. 25, 2020)

You can first raise a complaint about subject matter jurisdiction on appeal:

Subject Matter Jurisdiction: “In one issue, appellants contend that the trial court erred by granting summary judgment because the City judicially admitted [*2] its employee was acting in the course and scope of her employment when it moved to dismiss the employee under the election-of-remedies provision. The City responds that it conclusively proved that the trial court lacked subject-matter jurisdiction over appellants’ claims. n.1 n. 1 The City also argues that appellants waived their sole issue on appeal because they did not present it to the trial court. However, issues of subject-matter jurisdiction may not be waived and may be raised for the first time on appeal. E.g., Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993) (“Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties.”). Thus, appellants did not waive their issue on appeal.”  Ledesma v. City of Hous., No. 01-19-00034-CV, 2020 Tex. App. LEXIS 9193, at *2 n.1 (Tex. App.—Houston [1st Dist.] Nov. 24, 2020)

If you agree to a ruling, you probably have not preserved a complaint about it:

Continuance: “The trial court also had the right to exercise its discretion by continuing the case from the prior trial setting in May 2018. The docket sheet reflects the parties agreed to the court’s decision to change the trial setting. While the record shows Coe did object to WGT&T’s motion to continue, she later agreed to the continuance. She also never obtained a ruling on her objections to WGT&T’s motion to continue. By failing [*24] to secure a ruling and by agreeing to continue the case, Coe failed to preserve her complaints about the continuance for our review in the appeal.” Coe v. Weller, Green, Toups & Terrell, LLP, No. 09-18-00365-CV, 2020 Tex. App. LEXIS 9240, at *23-24 (Tex. App.—Beaumont Nov. 25, 2020)

You have to comply with the pertinent rules:

Factual Sufficiency: “To preserve a factual sufficiency challenge for appeal, a party must present the specific complaint to the trial court in a motion for new trial. Tex. R. Civ. P. 324(b)(2), (3); . . .To preserve error, the motion for new trial must state the factual sufficiency complaint with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. . . . Tex. R. App. P. 33.1(a). Here, EYM and ACCSC did not raise these arguments regarding a failure to use ordinary care in their joint motion for new trial. They are, therefore, not preserved for appellate review, and we do not address the merits of these arguments. n. 2 n. 2 EYM and ACCSC mention two of the arguments raised on appeal—Yousef’s testimony that he saw no problems with the panel cover and the allegation that Yousef ignored Abdo’s instructions to wait to remove the panel until Abdo was present—in their “Joint Reply to Plaintiff’s Response to Joint Motion for New Trial.” Those arguments were not, however, included in the joint motion for new trial. The general inclusion of these arguments in a reply brief was insufficient to preserve these contentions for our review on appeal. . . .; Tex. R. Civ. P. 324(b)(2) (requiring factual sufficiency of the evidence to support a jury finding to be raised in “a point in a motion for new trial”);” EYM Diner L.P. v. Yousef, No. 05-19-00636-CV, 2020 Tex. App. LEXIS 9212, at *19 (Tex. App.—Dallas Nov. 24, 2020)

All for now.  Y’all stay safe and well.


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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