from Angelina County; 12th district (
12-06-00295-CV, ___ SW3d ___, 09-17-07, pet granted )(denial of
free appellate record in parental rights termination proceeding, does doctrine of fundamental error apply?
denial of due process, due course of law?)
[Note: The date and time for oral argument are yet to be determined.]
NO. 12-06-00295-CV




IN THE INTEREST OF B.G.,         §                      APPEAL FROM THE 217TH

C.W., E.W., B.B.W. AND J.W.,        §                      JUDICIAL DISTRICT COURT OF

CHILDREN   §                      ANGELINA COUNTY, TEXAS

       Lester Williams appeals the trial court’s postjudgment order denying him a free record in a
conservatorship and termination proceeding brought by the Texas Department of Family and Protective
Services (“DFPS”).  In one issue, Williams complains that the trial court violated his due process rights
under the United States and Texas constitutions when it denied his request for a free record.  We affirm.


       Following a bench trial, the trial court terminated Williams’s parental rights.  Williams, who had
discharged his court appointed trial counsel and acted pro se at trial, requested that the trial court appoint
counsel to represent him on appeal.  Through his subsequently appointed appellate counsel, Williams
sought a free record based upon Williams’s indigent status.  The trial court conducted a posttrial hearing
on the matter and issued a written order denying Williams a free record.  Williams now appeals that order.

Constitutional Issues

       In his sole issue, Williams argues that the trial court violated his due process rights under the United
States and Texas constitutions when it denied his request for a free record.  Section 13.003 of the Texas
Civil Practice and Remedies Code governs the provision of free clerk’s records and reporter’s records to
indigent appellants.  See Tex. Civ. Prac. & Rem. Code Ann. § 13.003 (Vernon 2002).  Under section
13.003, a trial court may order that an indigent appellant be provided a free clerk’s record and reporter’s
record only if

(1)           an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of
Appellate Procedure; and

(2)           the trial judge finds:

(A)          the appeal is not frivolous; and

(B)          the [reporter’s record] and the [clerk’s record] are needed to decide the issue presented by the

Tex. Civ. Prac. & Rem. Code Ann. § 13.003(a) (Vernon 2002).

       Rule 33.1(a) of the Texas Rules of Appellate Procedure states as follows:

(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 Civil or Criminal 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

Tex. R. App. P. 33.1(a).  Here, Williams did not assert his constitutional complaints at the hearing on his
request for a free record.  Therefore, Williams failed to preserve error, if any, for appellate review.  See
Tex. R. App. P. 33.1(a); Canal Ins. Co. v. Hopkins, No. 12-06-00411-CV, 2007 WL 1867350, at *7 (Tex.
App.–Tyler June 29, 2007, no pet. h.) (applying Rule 33.1 to constitutional issues); In re T.L., No. 12-04-
00219-CV, 2004 WL 2694600, at *5 (Tex. App.–Tyler Nov. 24, 2004, no pet.) (mem. op.) (also applying
Rule 33.1 to constitutional issues).

       Under the fundamental error doctrine, we may review error that has not been preserved at trial.  
Fundamental error exists “in those rare instances in which the record shows the court lacked jurisdiction or
that the public interest is directly and adversely affected as that interest is declared in the statutes or the
Constitution of Texas.”  Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993) (quoting
Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982)).  We have not been presented with fundamental error
in this case.  See id.  We overrule Appellant’s sole issue.


       We affirm the trial court’s order.1

                                                                                               BRIAN HOYLE  


Opinion delivered July 18, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.


1 Williams has listed issues that he anticipates raising on appeal upon our reversal of the trial court’s
order.  Because these are anticipated issues only, we do not address them here.