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I
-. THE A’ITORNEY GENERAL
OF TEXAS Q 203
e
Arrs-rx~. TEZXAFI 78711
June 4, 1973
The Honorable Jimmy Morris Opinion No. H-44
Criminal District Attorney
Navarro County Re: Obligation of District
Corsicana, Texas 75110 Clerk to~prepare tran-
script under Article 9.17,
Election Code, and Rules
of Civil Procedure 376,
Dear Mr. Morris: 377, and 386.
Your request for our opinion submits the question of whether, in
an election contest, rules 376, 377, and 386 of the Texas Rules of
Civil Procedure, on the one hand, or Article 9.17 of the Election Code,
on the other, governs preparation and filing of the transcript on appeal.
From your letter we gather that the appellant in a particular
election contest appeal has asked that the District Clerk prepare the
transcript and deliver it to him, after which, as you etate, “he will
wait until the last minute to file same with the Clerk of the Court of
Civil Appeals. ” On the other hand, the l ppellee demands that the
Clerk deliver the transcript to the Clerk of the Court of Civil Appeals
immediately upon its completion.
Rule 376 of the Texas Rules of Civil Procedure provides that the
Clerk shall prepare the transcript which, under Rule 386, will be filed
by the appellant in the Court of Civil Appeals within 60 days from the
rendition of final judgment.
On the other hand, Article 9,17 of the Election Code, V. T. C. S. ,
provides that, in cases of appeal, “the Clerk shall, without delay,
make up the transcript and forward the same to the Clerk of the Court
of Civil Appeals for, that district. ”
The Revised Civil Statutes (1925) contained, as Article 3056, the
following:
p. 177
The Honorable Jimmy Morris, page 2 (H-44)
“Either the contestant or contestee may appeal
from the judgment of the district court to the Court
of Civil Appeals, under the same rules and regula-
tions as are provided for appeals in civil cases; and
such cases shall have precedence in the Court of
Civil Appeals over all other cases. In case of appeal
as provided for in this Article, the Clerk, shall,
without delay, make up the transcript and forward
the same to the Clerk of the Court of Civil Appeals
for that district. ” (Emphasis added)
With the codification of the Texas Election Code in 1951 (Acts 1951,
52nd Leg., p. 1097, Ch. 492), the foregoing section wao incorporated
as Article 9.17 with virtually identical language.
The conflict, however, would seem to be resolved by Rule 2 of the
Texas Rulea of Civil Procedure which was amended in 1943 to add the
provision that:
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“. . . and where any statute in effect imme-
diately prior to September 1, 1941, and not included
in the ‘List of Repealed Statutes’ orescribed a rule
of procedure in any special statutory proceeding
differing from these rules, such statute shall apply . . . . ”
Article 3056 was not among the “List of Repealed Statutes. ” There-
fore, Article 9.17 should control, and not the Rules. That this is so is
reinforced by the comment to Rule 2 which states:
“The 1943 and 1947 amendments make clear the
inapplicability of the rules to special statutory pro-
ceedings, insofar as statutory rules of procedure are
specifically prescribed for such proceedings and
differ from these rules. These special proceedings
appear under the following titles in the Revised Civil
Statutes: ‘adoption; . . . election contests . . . ’ ”
(Vol. 1, Vernon’s Texas Rules Annotated, page 13)
p. 178
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The Honorable Jimmy Morris, page 3 (H-44)
We would also call to your attention Wendover v. Tobin, 261 S. W.
434, (Tex. Civ. App. , San Antonio, 1924, err. dis’m., W.O. j.) where
the court said:
” . . . As an evidence that dilatory tactics
should not be allowed to delay trials in contested
election cases, the rule prevailing in other cases
of appeal that the transcript shall be prepared upon
the application of one of the parties and by him
filed in the Court of Civil Appeals, is set aside,
and it is provided that in case of an appeal in a
contested election case ‘the clerk shall, without
delay, make up the transcri
same to the clerk of t of Civil Appeals
for that district. ’ ” (261
It is therefore our conclusion that from an election
contest the provlsionsofArticle Election Code prevail over
the provision of Rules 376, 377, and
Procedure.
SUMMARk
In an election contest, upon notice of appeal,
the Clerk should immediate1 proceed to prepare a
transcript and should forwa d the same to the Clerk
of the Court of Civil Appeal without first delivering
the same to the attorneys lo I appellant.
Opinion Committee
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