law-preservation-of-error-constitutional-arguments | constitutional challenges | due process | equal protection |
ERROR PRESERVATION FOR PURPOSES OF APPEAL
preservation of error for appellate review
preservation of constitutional arguments for appeal
preservation of error in admission or exclusion of evidence, evidentiary rulings by trial court judge
Did the taxpayers preserve error as to their constitutional argument?
Under their third issue, the Langstons argue that the Taxing Authorities' purported double taxation of
the Langstons' real property violates article 8, section 1 of the Texas Constitution. See Tex. Const. art.
VIII, 1. The Langstons also argue that equity demands that a remedy be made to enforce their
constitutional right to be free from double taxation. Though the Langstons argue otherwise in their reply
brief, the record reflects that they did not voice these complaints in the trial court. While they
mentioned the alleged double taxation, they did not mention the Texas Constitution or any alleged
constitutional violation, nor did they argue that equity must provide a remedy. Therefore, they failed to
preserve error as to the third issue. See Tex. R. App. P. 33.1(a); see, e.g., In re L.M.I., 119 S.W.3d
707, 711 (Tex. 2003) (holding that, to preserve issue for appellate review, including constitutional error,
party must present to trial court timely request, motion, or objection, state specific grounds therefor,
and obtain ruling). ... Because the Langstons failed to preserve error, we overrule their third issue.
Langston v. City of Houston (Tex.App.- Houston [14th Dist.] Aug. 6, 2009) (Frost)
(bill of review denied, tax suit, failure to avail oneself of available remedies, i.e. direct appeal precludes bill-of-
review relief, claim of fundamental error as exception to requirement to preserve error rejected)
AFFIRMED: Opinion by Justice Frost
Before Justices Frost, Seymore and Boyce
14-08-00063-CV C. Dale Langston and Sue Langston v. City of Houston, Harris County, Pasadena
Independent School District and San Jacinto Community College
The Goffneys have not preserved error regarding their constitutional due process challenges to sections 373
and 395 of CURB because they failed to present these arguments to the trial court. See Tex. R. App. P. 33.1(a)
(1)(A). The record refects that, at trial, the Goffneys did not plead or argue that these ordinances violated either
the Texas or United States Constitution.
A party must first present due process arguments to the trial court to pursue them on
appeal. See, e.g, In re L.M.I. & J.A.I, 119 S.W.3d 707, 711 (Tex. 2003); Ratsavong v. Menevilay, 176 S.W.3d
661, 671 (Tex. App.—El Paso 2005, pet. denied) (due process arguments waived when they were not brought
to trial court’s attention); Santos v. Comm’n for Lawyer Discipline, 140 S.W.3d 397, 404–05 (Tex. App.—
Houston [14th Dist.] 2004, no pet.); McDonald II v. State, 693 S.W.2d 660, 661 (Tex. App.—Dallas 1985, no writ).
Goffney v. HISD (Tex.App.- Houston [1st Dist.] Jul. 30, 2009)(Hanks)
(delinquent property tax suit, standing to appeal, preservation of error re: constitutional challenge, due process
challenge, inadequate briefing results in waiver of argument on appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Keyes, Hanks and Bland
01-08-00063-CV Willie H. Goffney and Gladys R. Goffney v. Houston Independent School District
Appeal from 165th District Court of Harris County
Trial Court Judge: Hon. Elizabeth Ray