Preserving Error Regarding Time Limitations at Trial

While some cases are short and sweet, others are massive 10,000-piece puzzles. Some can be tried with the presentation of a couple of inventories and brief testimony from the parties, while other cases may have 6 dueling experts. Yet, the trial court may not want to provide sufficient time for the parties to present all their evidence. This can be frustrating for everyone involved, but the best that lawyers can do is be prepared for all potential outcomes and make sure the record is ready for appellate review if it comes to that.

Appellate courts review a trial court’s imposition of time limits at trial, and the exclusion of evidence due to the imposition of time limits, using an abuse-of-discretion standard. See In re B.P., No. 05-23-01322-CV, 2025 WL 1083615, at *1 (Tex. App.—Dallas 2025, no pet.) (mem. op.) (citing In re M.A.S., 233 S.W.3d 915, 924 (Tex. App.—Dallas 2007, pet. denied)). Appellants have attempted to raise due-process complaints revolving around time limitations, but even if the limitation feels unfair, the issue is nevertheless reviewed under the abuse-of-discretion standard. M.A.S., 233 S.W.3d at 924.

Trial courts have great discretion in the conduct of a trial and may properly intervene to expedite trial and to prevent what it considers to be a waste of time. In re O.S., No. 02-23-00158-CV, 2025 WL 728107, at 12 (Tex. App.—Fort Worth 2025, no pet.) (mem. op.) (citing Dow Chem. Co. v. Francis, 45 S.W.3d 237, 240–41 (Tex. 2001). A trial court has authority to reasonably control presentation of evidence to avoid wasting time. B.P., 2025 WL 1083615, at 1 (citing Tex. R. Evid. 611(a)(2)). Such inherent power, together with rules of procedure and evidence, afford trial court broad, but not unfettered, discretion in handling trials. B.P., 2025 WL 1083615, at *1 (citing State v. Gaylor Inv. Tr. P’ship, 322 S.W.3d 814, 819 (Tex. App.—Houston [14th Dist] 2010, no pet.).

Because appellate review is under the abuse-of-discretion standard, if a party wishes to appeal his or her inability to present all arguments and evidence within the trial court’s time restraints, that party must:

(1) object to the time limit and get a ruling; and

(2) make an offer of proof of the evidence he or she was prevented from presenting.

Id. at 2. (citing Tex. R. App. P. 33.1); see also O.S., 2025 WL 728107, at 12; In re L.C., No. 05-23-00632-CV, 2024 WL 5001934, at *7 (Tex. App.—Dallas 2024, pet. denied).

In B.P., the appellant’s complaint regarding time limitations was not preserved because, despite an assertion in her appellate brief that she objected before trial, there was nothing in the record reflecting that objection. B.P., 2025 WL 1083615, at *2. It is not sufficient to email the court with a complaint because emails are generally not part of the record unless they are filed or offered as evidence. Filing a motion with or without the email attached will half-way satisfy the requirements of Rule 33.1. The Rule also requires the complaining party to obtain a ruling. Thus, the party will need to get a written order or bring it up on the record during the next time hearing to get an oral ruling. But satisfying Rule 33.1 only half-way preserves the error. The complaining party must also make an offer of proof, which is addressed below.

Returning to B.P., the appellant also complained that she was deprived of four minutes of what was supposed to be allotted to her. B.P., 2025 WL 1083615, at *2. But, again, she failed to raise an objection. Id. Finally, the appellant argued that the trial court abused its discretion by not giving her more time upon request after her time expired. Id. But, she made no offer of proof of the evidence she was prevented from presenting and, thus, failed to preserve the issue for review. Id.

In O.S., the appellant complained of a local rule that limited the number of times she could question each witness. O.S., 2025 WL 728107, at *12. However, she failed to object to that rule during trial. Id. Moreover, even if she had objected, she failed to make an offer of proof or file a bill of exception. Id. Even on appeal, she did not detail the additional testimony that would have been offered or how that additional testimony would have changed the trial court’s decision. Id.

In L.C., the scheduling order noted that the parties had requested two hours per side, yet at the beginning of trial, the court informed the parties they would have 45 minutes each. 2025 WL 5001934, at *7. The appellant’s objection to the time limitation was overruled. Id. However, Father (pro se) then stated that he was ready to participate in the trial under the restrictions. Id. He did not make any offer of proof regarding excluded testimony. Id. Without an offer of proof or post-trial bill of exception, the appellate court had nothing to review. Id.

One should also be careful not to waive the issue for appeal by appearing to acquiesce to the limitations. See id. This does not mean being obstinate, but it does mean letting the court know that the party’s objection to time limits is not changing.

File an objection before trial, and in that objection, explain to the court why more time is needed. Why is the evidence in the case complicated? Why are so many witnesses required? What is the topic of each witness’s testimony, and which claim or defense will that witness’s testimony be pertinent to?

Object again at trial. Object on the record to the time limitation. When evidence is excluded, make an offer of proof. Because of the time limitation, questing the witness to create the offer of proof or even summarizing the testimony for the judge might be impossible or impractical, so have an affidavit or declaration ready with the witness’s testimony. If you don’t have time to authenticate documents, hand those documents to the court reporter as an offer of proof so the appellate court will have access to the excluded documents. When the court gives you time check, remind the court that you would like more time because you foresee not having enough.

If you were unable to make offers of proof during trial, file a post-trial bill of exception so that the trial court and appellate court both know what you would have done differently if given more time. This could also be done in the form of a motion for new trial, motion for rehearing, or motion to reopen the evidence. The point is to ensure that the courts know that (1) your party objected to the limitation; and (2) your party had more evidence that could influence the trial’s outcome (and what that evidence was). Until the issue is adequately preserved, the appellate courts cannot give practitioners or the courts more discretion beyond that courts have “broad, but not unfettered,” authority to manage time limits.