Over the years Texas appellate courts have been wrestling with two overwhelming charge issues—charge preservation of error and broad-form use. Since the charge is the controlling document the jury uses to decide the factual issues of the case, it is of extreme importance. Before a party can complain on appeal about charge errors, the error must be preserved at trial. The Texas Rules of Civil Procedure (TRCP) have a certain set of procedures for preservation of charge error. The Texas Supreme Court amended charge preservation of error practice in State Department of Highways & Public Transportation v. Payne. In the years since, the Texas courts of review have been inconsistent in applying charge preservation of error. There are two general types of charge error: errors of omission and errors of commission. When there is a question, instruction or definition which should be included in the charge, but was not, there is an error of omission. When there is a question, instruction or definition in the charge, but it is incorrect, there is an error of commission. Conversely, under broad-form practice, questions are drafted generally and include most or all elements. Furthermore, much of the charge is contained in instructions to the general questions. Basically, the jury is asked to find conclusions without having to agree on specific facts. There are two looming issues in current Texas charge practice—preservation of error and broad-form use. At present, the TRCP generally mandates objections to be used to preserve incorrect questions, definitions and instructions within the jury charge. Whereas written requests will preserve erroneous omissions from the charge. The confusion stems from the unpredictable ways the courts have interpreted these rules. The most logical option to remedy the existing inconsistencies is to adopt new charge preservation of error rules.
St. Mary's University School of Law
William G. Arnot III & David Fowler Johnson,
Current Trends in Texas Charge Practice: Preservation of Error and Broad-Form Use.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol38/iss2/1
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