Error Preservation in Texas Civil Cases, October 24, 2020

October 24, 2020

Dear All:

I hope everyone has enjoyed this nice Fall weather.  We don’t have many error preservation cases this week (other than the ones holding that a complaint wasn’t raised in the trial court), but the Fort Worth Court does remind us that, when you present your complaint to the trial judge and get a ruling, you have preserved your complaint:

Findings/Conclusions/Statutory Construction: “Before we review the Department’s appellate issues, we address K.T.’s contention that [*6] the Department has failed to preserve error by failing to either request additional or amended findings and conclusions or by failing to object to the findings and conclusions that the trial court made. See Tex. R. App. P. 33.1 (setting out procedure for preserving appellate complaint); Tex. R. Civ. P. 298 (setting out procedure for requesting additional or amended findings). We disagree with K.T. First, in its motion for new trial, the Department objected to a construction of the statute that would allow expunction of K.T.’s 2017 DWI arrest records; not only did the trial court deny the Department’s motion raising that argument, it expressly rejected the Department’s proposed construction of Article 55.01(c) in its conclusions of law. The Department thus satisfied the requirements of Rule 33.1 by bringing its statutory argument to the trial court’s attention and obtaining a ruling. See In re Kajima Int’l, Inc., 139 S.W.3d 107, 110 (Tex. App.—Corpus Christi—Edinburg 2004, orig. proceeding). The Department was not required to engage in an exercise in futility by reasserting the same argument the trial court had already rejected.” Ex parte K.T., No. 02-19-00376-CV, 2020 Tex. App. LEXIS 8350, at *5-6 (Tex. App.—Fort Worth Oct. 22, 2020).

Y’all have a great weekend.

Yours, Steve Hayes

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

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Law Office of Steven K. Hayes

500 Main Street, Suite 340
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436
Email: shayes@stevehayeslaw.com

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