Documents Which Must Be Filed in Texas State Trial Courts to Preserve Error for Appeal

Preservation of error is more than simply shouting "Objection!" Lawyers must file certain documents in Texas state trial courts to preserve error for appeal. Here are ten of the most important such documents:

1. Special appearance - If your client is not a resident of Texas and has not had "minimum contacts" with Texas, but is nevertheless sued in Texas, you must file a special appearance to contest the court exercising personal jurisdiction over your client. You must file the special appearance before filing an answer, motion, or any other pleading. A special appearance must be verified.

2. Motion to transfer venue - If your client is sued in an improper county, you must file a motion to transfer venue. You must file the motion to transfer venue before or concurrently with the filing of answers, motions, or any other pleading except a special appearance.

3. Motion asserting forum non conveniens - If your client is sued in Texas, but a court outside of Texas has jurisdiction over the case and is a more appropriate forum, you must file a motion asserting forum non conveniens. The Texas Legislature has codified the common law principle of forum non conveniens, but has done so only for personal injury and wrongful death cases. In personal injury or wrongful death cases, you must file the motion no later than 180 days after the deadline to file a motion to transfer venue. For all other types of cases, the common law still applies, and the motion is timely as long as it is filed before trial.

4. Motion for continuance - If your trial setting is on a date before you will have been able to complete discovery, you must file a motion for continuance supported by an affidavit. Among other things, the affidavit must show that the discovery is material and that the movant was diligent in seeking the discovery. Although there is no state-wide deadline to file a motion for continuance, such a deadline may be imposed by local rules. For example, Bexar County civil district court Local Rule 3.18(C) provides that the motion must be filed fourteen days before the trial setting or at the pre-trial conference, whichever comes first.

5. Motion seeking judge's recusal - If the judge should be recused, you must file a motion for recusal. Texas Rule of Civil Procedure 18b(2) lists situations in which a judge should be recused. You must file the motion at least ten days before the hearing or trial from which you would like the judge to be disqualified or recused. When the judge is assigned to the case less than ten days before the date of the hearing or trial which he is scheduled to conduct, you must file the motion ASAP. Similarly, when the basis of recusal is not known until less than ten days before the date of the hearing or trial, you must file the motion ASAP.
The motion must be verified.

6. Motion to remove attorney - If your opposing counsel has a conflict of interest, you must file a motion to have him or her disqualified. You must file the motion without much delay. However, there is no bright-line test for determining how much delay is too much delay.

7. Plea in abatement - If your client is sued by a plaintiff who does not have the capacity to sue, you must file a plea in abatement. Similarly, if your client is sued but does not have the capacity to be sued, you must file a plea in abatement. If your client is sued while a substantially identical case is already pending between your client and the plaintiff, you must file a plea in abatement. Finally, if your client has been sued, but other necessary parties have not been sued, you must file a plea in abatement. You must file the plea without much delay. However, there is no bright-line test for determining how much delay is too much delay. In any case, you must file the plea before your case goes to trial. A plea in abatement must be verified.

8. Special exceptions - If your client is sued and the plaintiff's petition is so general as to fail to give you "fair notice" of the facts and the legal theories under which the plaintiff seeks to recover, you must file special exceptions to this defect. You must file the special exceptions before the jury charge is given. In a non-jury case, you must file the special exceptions before the court signs its judgment.

9. Request for findings of fact and conclusions of law - In a situation in which a judge has served as finder of fact, and has ruled against you, you should request findings of fact and conclusions of law. Your request must be filed within twenty days of the date the judgment was signed. If you do not timely file a request, the court of appeals will infer all findings against you. The trial court should file its findings and conclusions within twenty days of your request. If the trial court fails to do so, you must file a notice of past due findings and conclusions within thirty days of the date you filed your initial request. If the trial court files findings and conclusions, but they do not address all of the issues you believe necessary, you must, within ten days of the court's entering the initial findings and conclusions, file a request for additional findings and conclusions.

10. Motion for new trial - If you lose at trial, and there was factually insufficient evidence to support the jury's finding of liability or award of damages, you must file a motion for new trial. You must file the motion within thirty days of the date the judgment was signed. When you file the motion, you must pay a $15 fee.

Chad Ruback is the youngest appellate attorney ever to have been named one of "The Best Lawyers in Dallas" by D Magazine. Chad's rapid success can be attributed to the fact that he has limited his practice to handling appeals and trial court motions likely to be at issue on appeal.

Since the time that Chad completed his service as a briefing attorney at the Fort Worth Court of Appeals, he has been amassing experience representing both plaintiffs and defendants on appeal, regardless of whether they won or lost at trial. He has also dedicated himself to drafting trial court motions with an eye to winning at trial... and having those wins be upheld on appeal.

Chad has served as president of the 2,400-member Dallas Association of Young Lawyers and on the board of directors of the 10,000-member Dallas Bar Association.

Chad Ruback, Appellate Lawyer
8117 Preston Road, Suite 300
Dallas, Texas 75225
(214) 522-4243
http://www.appeal.pro/
http://news.appeal.pro/

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Texas Landlord Rights - The Landlord's Lien

In Texas, a residential landlord has a lien on the renter's possessions for past due rent. The lien is known simply as the landlord's lien and is found in Texas Property Code § 54.041. This statutory landlord's lien does not require a written lease to be valid. It is available even if the lease is simply a verbal agreement. The lien attaches to any personal property of the tenant that is actually in the residence.

Texas Landlord Rights - Exempt Property

As with most liens in Texas, there are exemptions to the landlord's lien. Section 54.042 of the Texas Property Code specifically lists the items that are exempt from the lien. They are:

1. Wearing apparel;

2. Tools and books of a trade or profession;

3. Schoolbooks;

4. A family library;

5. Family portraits and pictures;

6. One couch, two living room chairs, and a dining table and chairs;

7. Beds and bedding;

8. Kitchen furniture and utensils;

9. Food and foodstuffs;

10. Medicine and medical supplies;

11. One car and one truck;

12. Agricultural implements;

13. Children's toys;

14. Property that is not actually owned by the renter or an occupant of the residence; and

15. Property that is pledged as security for a recorded mortgage or financing agreement.

Texas Landlord Rights - Enforcement of the Landlord's Lien

A landlord can enforce a landlord's lien by self-help remedy but there are limitations. Those limitations are:

1. The right to a self-help remedy is only available if there is a written lease.

Even though the landlord's lien is available for verbal agreement leases, the self-help enforcement remedy of the lien is only available when the lease is in writing. But, just having a written lease is not enough. The written lease must specifically authorize the use of self-help enforcement of the landlord's lien.

2. The right to a self-help remedy is only available if it can be done without a "breach of the peace."

3. The landlord who exercises self-help enforcement of a landlord's lien must leave written notice of entry immediately after doing so.

4. The written notice of entry must include an itemized list of items removed.

5. The notice must be left in a conspicuous place in the residence.

6. The notice must list the dollar amount of past due rent along with the name, address, and telephone number of the person the tenant can contact regarding the amount owed.

7. The notice must also state that the property will be promptly returned on full payment of the past due rent. Texas Property Code § 54.044(b).

Most landlord's I deal with in my law practice have no idea they have a lien on their renter's property to secure payment of rent. In fact, many landlords believe the law in Texas totally favors their tenants. They have no idea that there are laws governing Texas landlord rights, not just their duties.

Harvey L. Cox is an attorney and certified mediator in Texas. He runs an informational web site on Texas legal issues where you can get more information on Texas landlord rights.

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