Error Preservation in Texas Civil Cases, January 6, 2017


January 6, 2018

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 appeal: lack 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


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s