Affirmed and Majority and Concurring Opinions filed January 24, 2013.




                                      In The


                   Fourteenth Court of Appeals

                              NO. 14-11-00954-CV



                   GERALD BYRON BARRAS, Appellant

                                        V.

                   LESLEA LORING BARRAS, Appellee


                  On Appeal from the 306th District Court
                         Galveston County, Texas
                    Trial Court Cause No. 10-FD-3077


                       CONCURRING OPINION

     I respectfully concur in the judgment.

     In this divorce case, appellant argues, among other things, that the trial court
committed fundamental error by imposing a lien on his separate-property
homestead to secure a money judgment for his ex-wife in violation of the Texas
Constitution. Even if this argument had merit, it would not be fundamental error.
Because the fundamental-error doctrine does not apply and because the ex-husband
did not preserve error in the trial court, this issue may be overruled without
addressing the merits of the argument.

                              No Fundamental Error

      In his first issue, appellant Gerald Byron Barras asserts that the trial court
committed fundamental error by imposing a lien on Gerald’s separate-property
homestead to secure a money judgment for appellee Leslea Loring Barras in
violation of article XVI, section 50 of the Texas Constitution. See Tex. Const. art.
XVI, § 50. Gerald argues that the trial court’s imposition of this lien on his
homestead violates this provision of the Texas Constitution and is invalid under the
Supreme Court of Texas’s decision in Heggen v. Pemelton, 836 S.W.2d 145 (Tex.
1992). The record reflects that Gerald did not raise this complaint in the trial court.
Therefore, Gerald did not preserve error on this issue. See Tex. R. App. P. 33.1(a);
In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (holding that, to preserve argument
for appellate review, including constitutional arguments, party must present it to
trial court by timely request, motion, or objection, state specific grounds therefore,
and obtain ruling); Ewing v. Act Catastrophe-Texas L.C., 375 S.W.3d 545, 551
(Tex. App.—Houston [14th Dist.] 2012, pet. denied) (same as In re L.M.I.).

      On appeal, Gerald does not contend that he preserved error on this issue in
the trial court. Rather, Gerald asserts that the error alleged in his first issue is
“fundamental error.” If this assertion were correct, then preservation of error in the
trial court would not have been necessary. See In re B.L.D., 113 S.W.3d 340, 350
(Tex. 2003). But, in civil appeals, the fundamental-error doctrine is a narrow and
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limited exception to the procedural rules requiring parties to preserve error
regarding their appellate complaints.     See id.    In light of the strong policy
considerations favoring the preservation-of-error requirement, the Supreme Court
of Texas has called the fundamental-error doctrine “a discredited doctrine.” See id.
At most, the fundamental-error doctrine applies in the following situations: (1)
when the record shows on its face that the court rendering the judgment lacked
jurisdiction; (2) when the alleged error occurred in a juvenile delinquency case and
falls within a category of error as to which preservation of error is not required;
and (3) when the error directly and adversely affects the interest of the public
generally, as that interest is declared by a Texas statute or the Texas Constitution.
See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006) (including the
first and third categories); In re B.L.D., 113 S.W.3d at 350–51(including the first
and second categories). The alleged error in the first issue does not fall within any
of these three categories, and Gerald does not argue otherwise.

      The alleged error would not deprive the trial court of jurisdiction, and the
alleged error did not occur in a juvenile delinquency case. Though the alleged
error may affect Gerald’s private interest in his separate-property homestead, the
alleged error does not directly and adversely affect the interest of the public
generally, as that interest is declared by a Texas statute or the Texas Constitution.
See Isaacs v. Isaacs, 338 S.W.3d 184, 189 (Tex. App.—Houston [14th Dist.] 2011,
pet. denied) (holding that alleged error by trial court in applying statute
retroactively in violation of Texas Constitution was waived by failure to preserve
error in the trial court); Langston v. City of Houston, No. 14-08-00063-CV, 2009
WL 3003259, at *3 (Tex. App.—Houston [14th Dist.] Aug. 6, 2009, no pet.)
(holding that alleged error by trial court in allowing double taxation of real
property in violation of Texas Constitution was not fundamental error) (mem. op.);
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Moore v. Sieber, No. 14-06-00030-CV, 2006 WL 3290895, at *1–2 (Tex. App.—
Texarkana Nov. 14, 2006, no pet.) (holding that alleged error by trial court in
declaring that ex-wife had superior right to possession of ex-husband’s homestead
was waived by failure to preserve error in the trial court) (mem. op.); Waller v. R.S.
Concrete, Inc., No. 14-04-00553-CV, 2005 WL 1150204, at *1–2 (Tex. App.—
Houston [14th Dist.] May 17, 2005, no pet.) (holding that alleged error by trial
court in imposing invalid lien on real property contrary to Texas statute was not
fundamental error) (mem. op.). Neither the Heggen case nor any other case cited
by Gerald supports the notion that the type of error alleged in Gerald’s first issue is
fundamental error. See Heggen v. Pemelton, 836 S.W.2d 145, 146–48 (Tex. 1992).

      For the foregoing reasons, the alleged error in Gerald’s first issue is not
fundamental error, and Gerald waived this issue by failing to preserve error in the
trial court. See Mack Trucks, Inc., 206 S.W.3d at 577; In re B.L.D., 113 S.W.3d at
350–51; Isaacs, 338 S.W.3d at 189; Langston, 2009 WL 3003259, at *3; Moore,
2006 WL 3290895, at *1–2; Waller, 2005 WL 1150204, at *1–2. Thus, it is not
necessary to address the merits of Gerald’s first issue.




                                        /s/       Kem Thompson Frost
                                                  Justice


Panel consists of Justices Frost, Christopher, and Jamison. (Christopher, J.,
majority).




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