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

C O N C U R R I N G O P I N I O N

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 
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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).