GENERAL
Honorable Joe Resweber Oninion No. c-428
county Attorney
Harris County Re: Whether it is proper for
Harris County Courthouse the County Clerk to
Houston, Texas require an additional
costs deposit of the
appellee for any certi-
fied copies that he
requests to go to the
District Court as the
result of a perfected
appeal from the Probate
Dear Sir: Court.
You have requested an opinion from this office in
which you asked:
"Is it proper for the County Clerk to require
an additional costs deposit of the appellee for
any certified copies that he requests to go to
the District Court as the result of a perfected
appeal from the Probate Court?
"If the preceding question is answered in
the negative, what is the proper method of
collecting the fee for the preparation of the
said certified copies?"
Article 3930, Vernon's Civil Statutes, provides in
part:
"Clerks of the County Court may receive not
to exceed the following fees:
II. . .
"Recording, transcribing or copying all
papers or records required or permitted by law
to be recorded, ,transcribed or copied, with or
without certificate and seal, for each 100
words, not otherwise provided for . . ."
-2016-
Hon. Joe Resweber, page 2 (c-428)
Rule 336, Texas Rules of Civil Procedure, provides
for transcript on appeal from county court to district court
as follows:
"The party desiring to appeal, within ten
days from the date of rendition of the decision,
order, decree or judgment appealed from, shall
file with the county clerk a written direction as
to the matters which he deems necessary to a
review of the county court ruling appealed from,
to be included in a transcript. Within five
days after receipt of a copy of such direction
any other interested party may so file a
written direction to include in the transcript
additional portions of the proceedings. The
county clerk shall thereupon immediately prepare
under his hand and seal of the court a transcript
consisting of a true copy of the proceedings so
designated. The appealing party shall file such
transcript with the clerk of the district court
within thirty days from the date of rendition
of the decision, order, decree or judgment so
appealed from. Provided, that upon the filing
of a motion in the county court within such
thirty day period, or within five days thereafter,
showing good cause therefor, such court may grant
a reasonable extension of time in which 'to file
such record, or any part thereof.
"Whenever the county judge is of the opinion
that original papers or exhibits should be sent
to the district court, either in lieu of a
transcript or in connection therewith, he may
make such order therefor, and for the safekeeping,
transmittal and return thereof as he deems proper.
The district court may by like order direct the
county clerk to send to it any original paper
or exhibit deemed necessary for purposes of review.
"If the county judge shall order original
papers or exhibits sent to the district court in
lieu of a transcript, a certified copy of such
order, together with such papers and exhibits,
shall be transmitted by the county clerk to the
district clerk within thirty days from the date
of rendition of the decision, order, decree or
judgment appealed from.
-2017-
Hon. Joe Resweber, page 3 (C-428)
”
" As amended by order of April 12,
1962, iffective Sept. 1, 1962.
You will note that "the,party desiring to appeal,
. . . shall file with the county clerk a written direction
as to the matters which & deems neoessary to a review of
the county court ruling appealed from, to be included in a
tgn~~r~~. Within five days . . . any other interested party
Y e a written direction to include in the transcript
additional portions of the proceedings. The county clerk shall
thereupon immediately prepare under hfs hand and seal of the
court a transcript consisting of a true copy of the proceedings
so designated. . . ."
The above then becomes the transcript of the proceedings
and is then filed with the district clerk. You will note that
the appellee has the right to have included in the transcript
additional portions of the proceedings.
Rule 333, Texas Rules of Civil Procedure, requires a
bond.
"Except in cases specified in Sec. 29 of the
Texas Probate Code, the party desiring to appeal
shall, within fifteen days from the date of rendi-
tion of such decision, order, decree or judgment
appealed from, file with the county clerk a bond
with two or more good and sufficient sureties, to
be approved by the county clerk, payable to the
county judge in an amount to be fixed by the
county judge, conditioned that the appealing party
shall prosecute said appeal with effect, and
perform the decision, order, decree or judgment
which the district court shall make thereon in
case the cause shall be decided against him; or
in lieu of a bond, the party desiring to appeal
may deposit with the clerk cash in the amount
so fixed by the county judge, and in that event
the clerk shall file among the papers his
certificate showing that the deposit has been
made, wd copy such certificate in the transcript
if one is prepared, and this shall have the force
and effect of an appeal bond." As amended by order
of April 12, 1962, effective Sept. 1, 1962.
It therefore follows that the bond is security for
any costs incurred in preparing a transcript for an appeal
from the probate court to the district court, and the County
Clerk is not authorized to require an additional cost deposit
-2018-
. . .
Hon. Joe Resweber, page 4 (C-428)
for the preparation of same.
Your second question is answered by our opinion on
your first question.
SUMMARY
It is not proper for the county clerk to
require an additional cost deposit of the
appellee for any certified copies that he
requests to go to the district court, as
the bond required by Rule 333, Texas Rules
of Civil Procedure (except in cases specified
in Sec. 29 Texas Probate Code) is security
for any cost incurred in preparing a transcript
to perfect an appeal from the probate court to
the district court.
Yours very truly,
WAGGONER CARR
Attorney General
Assistant
JHB:sj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Bill Allen
W. 0. Shultz
Malcolm Quick
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
-2019-