33.1. Preservation; How Shown
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
(b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court.
(c) Formal Exception and Separate Order Not Required. Neither a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal.
(d) Sufficiency of Evidence Complaints in Civil Nonjury Cases. In a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence – including a complaint that the damages found by the court are excessive or inadequate, as distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of fact – may be made for the first time on appeal in the complaining party’s brief.
33.2. Formal Bills of Exception
To complain on appeal about a matter that would not otherwise appear in the record, a party must file a formal bill of exception.
(a) Form. No particular form of words is required in a bill of exception. But the objection to the court’s ruling or action, and the ruling complained of, must be stated with sufficient specificity to make the trial court aware of the complaint.
(b) Evidence. When the appellate record contains the evidence needed to explain a bill of exception, the bill itself need not repeat the evidence, and a party may attach and incorporate a transcription of the evidence certified by the court reporter.
(c) Procedure.
(1) The complaining party must first present a formal bill of exception to the trial court.
(2) If the parties agree on the contents of the bill of exception, the judge must sign the bill and file it with the trial court clerk. If the parties do not agree on the contents of the bill, the trial judge must — after notice and hearing — do one of the following things:
(A) sign the bill of exception and file it with the trial court clerk if the judge finds that it is correct;
(B) suggest to the complaining party those corrections to the bill that the judge believes are necessary to make it accurately reflect the proceedings in the trial court, and if the party agrees to the corrections, have the corrections made, sign the bill, and file it with the trial court clerk; or
(C) if the complaining party will not agree to the corrections suggested by the judge, return the bill to the complaining party with the judge’s refusal written on it, and prepare, sign, and file with the trial court clerk such bill as will, in the judge’s opinion, accurately reflect the proceedings in the trial court.
(3) If the complaining party is dissatisfied with the bill of exception filed by the judge under (2)(C), the party may file with the trial court clerk the bill that was rejected by the judge. That party must also file the affidavits of at least three people who observed the matter to which the bill of exception is addressed. The affidavits must attest to the correctness of the bill as presented by the party. The matters contained in that bill of exception may be controverted and maintained by additional affidavits filed by any party within ten days after the filing of that bill. The truth of the bill of exception will be determined by the appellate court.
(d) Conflict. If a formal bill of exception conflicts with the reporter’s record, the bill controls.
(e) Time to file.
(1) Civil Cases. In a civil case, a formal bill of exception must be filed no later than 30 days after the filing party’s notice of appeal is filed.
(2) Criminal Cases. In a criminal case, a formal bill of exception must be filed:
(A) no later than 60 days after the trial court pronounces or suspends sentence in open court; or
(B) if a motion for new trial has been timely filed, no later than 90 days after the trial court pronounces or suspends sentence in open court.
(3) Extension of Time. The appellate court may extend the time to file a formal bill of exception if, within 15 days after the deadline for filing the bill, the party files in the appellate court a motion complying with Rule 10.5(b).
(f) Inclusion in Clerk’s Record. When filed, a formal bill of exception should be included in the appellate record.
Notes and Comments
Comment to 1997 change: This is former Rule 52. Subdivision 33.1 is rewritten. Former Rule 52(b), regarding offers of proof, is omitted as unnecessary. See TEX. R. CIV. EVID. 103; TEX. R. CRIM. EVID. 103. Subdivision 33.2 is also rewritten and the procedure is more definitely stated. Former Rule 52(d), regarding motions for new trial, is omitted as unnecessary. See TEX. R. CIV. P. 324(a) & (b).
Comment to 2002 change: The last sentence of former Rule 52(d) of the Rules of Appellate Procedure has been reinstated in substance.