                                NO. 12-09-00130-CV

                         IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS


JAMES WALKER,                                     '   APPEAL FROM THE
APPELLANT

V.                                                '   COUNTY COURT AT LAW NO. 2

CRAIG CROWELL,
APPELLEE                                          '   OF SMITH COUNTY, TEXAS

                                             OPINION
          James Walker appeals from the county court at law’s order dismissing his appeal
of a justice court judgment for lack of jurisdiction. In his sole issue, Walker asserts that
the county court at law erred in concluding it did not have jurisdiction of his appeal. We
affirm.
                                       BACKGROUND

          Craig Crowell filed suit against Walker in justice court, alleging that Walker was
in default under the terms of a note held by Crowell. On May 27, 2008, the justice court
signed a judgment in Crowell’s favor after a jury trial.
          Dissatisfied with the verdict and judgment, Walker attempted to appeal in the
county court at law seeking a trial de novo. Specifically, on May 30, 2008, Walker filed
a notice of appeal and an affidavit of inability to pay costs. Crowell contested Walker’s
affidavit of inability to pay costs by filing a letter with the justice court on June 4, 2008.
For reasons not apparent from the record, the justice court did not conduct a hearing on
the contest until August 13, 2008, over two months later. At that hearing, the justice




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court concluded that Walker had the ability to pay costs, rejected the affidavit, and denied
the appeal.
        Walker did not appeal the justice court’s ruling on the affidavit. Instead, he
attempted to file an appeal bond and an ―amended notice of appeal‖ on August 15, 2008.
The justice court rejected that appeal bond as noncompliant on September 4, 2008, and
Walker first received notice of that ruling on September 8, 2008. Walker filed a ―second
amended notice of appeal‖ and appeal bond on September 9, 2008, which the justice
court approved on September 10, 2008.
        In the county court at law, Crowell filed a motion to dismiss the appeal for lack of
jurisdiction on January 8, 2009, which was granted after a hearing by an order signed on
February 4, 2009. Walker timely filed a motion for new trial, which was denied. He then
appealed to this court.

              DISMISSAL OF WALKER’S LAWSUIT FOR LACK OF JURISDICTION
        In his sole issue, Walker asserts the county court at law erred in concluding it did
not have jurisdiction of his appeal. The county court at law held that Walker did not
timely perfect his appeal because, since he filed his appeal bond after the justice court
sustained the contest to his affidavit of inability to pay costs, he filed the appeal bond too
late.
        Walker contends that once the justice court sustained Crowell’s contest to his
affidavit, he could then start anew under the appeal bond procedure. In other words, he
argues that once his attempt to perfect the appeal through an affidavit of inability to pay
costs failed, his deadline for filing an appeal bond was extended.
        Crowell asserts that the appeal bond procedure and the affidavit procedure are
mutually exclusive. That is, he claims a party complaining of a justice court judgment
must choose a method of perfecting his appeal at the outset, by filing either an appeal
bond or an affidavit of inability to pay the costs of appeal. Crowell argues that if an
affidavit of inability to pay costs is successfully contested, the deadline for filing an
appeal bond is not extended. Thus, the party who filed the affidavit cannot ever timely
perfect an appeal by filing an appeal bond. Here, the appeal bond was approved 106 days
after the justice court signed the judgment, which Crowell argues was too late.


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Standard of Review

       Whether Walker timely filed his appeal bond and thereby conferred jurisdiction
on the county court at law presents a legal question, which we review de novo. See
Williams v. Schneiber, 148 S.W.3d 581, 583 (Tex. App.—Fort Worth 2004, no pet.). If
the appeal bond is not timely filed, the county court is without jurisdiction to hear the
appeal, and the appeal must be dismissed. Id.
Perfecting an Appeal from Justice Court

       An aggrieved party may appeal a justice court judgment to the county court. See
TEX. CIV. PRAC. & REM. CODE ANN. § 51.001 (Vernon 2008). The result is a trial de
novo. TEX. R. CIV. P. 574b. An appeal of a justice court judgment is perfected ―[w]hen
the bond, or the affidavit in lieu thereof, provided for in the rules applicable to justice
courts, has been filed and the previous requirements have been complied with . . . .‖ TEX.
R. CIV. P. 573. Thus, an appellant from a justice court may perfect an appeal by filing an
appeal bond or an affidavit of inability to pay costs, in lieu of an appeal bond. See TEX.
R. CIV. P. 571, 572.
       An appellant who files an appeal bond must do so within ten days from the date
that the judgment complained of is signed. TEX. R. CIV. P. 571. If the appeal bond is
successfully challenged, the appellant must be provided five days, after notice, within
which to correct defects or irregularities of procedure, either of form or substance. Id.
       An appellant who is unable to pay the costs of the appeal must file his affidavit of
inability to pay costs, in lieu of an appeal bond, within five days after the judgment
complained of is signed. TEX. R. CIV. P. 572. The affidavit must state that the appellant
is unable to pay the costs of appeal, in whole or in part. Id. The nonappealing party may
challenge the affidavit and the affiant’s indigency within five days after the appealing
party files the affidavit. Id. If the justice of the peace then denies the affidavit, and
consequently the appeal, the appellant has five days after that ruling in which to appeal to
the county court. Id. In such an instance, the county court must hold a hearing within ten
days and determine de novo whether the affidavit is sufficient. Id. Although rule 571
allows an appellant five days to correct a defective appeal bond, rule 572 does not make




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any provision for correcting a defective affidavit of inability to pay costs. Compare TEX.
R. CIV. P. 571 with TEX. R. CIV. P. 572.
          In this case, Walker did not appeal the justice court’s rejection of his affidavit and
denial of his appeal. Instead, he proceeded to file his appeal bond. According to rule
571, Walker was required to file his appeal bond on or before June 6, 2008. However,
the justice court’s rejection of his affidavit and denial of his appeal occurred seventy-
eight days after his deadline for filing the appeal bond expired. Neither rule 571 nor rule
572 addresses whether the deadline for filing an appeal bond is extended where, as here,
that deadline expires before the justice court rejects the affidavit of inability to pay costs
and denies the appeal.
          Moreover, we have been unable to locate any pertinent cases arising out of
appeals from justice courts that address this issue. In the past, an appeal bond or affidavit
of inability to pay costs in lieu of bond was required in ordinary appeals from district or
county courts. See TEX. REV. CIV. STATS. ANN. arts. 2098-2100 (1911, repealed 1941);
TEX. R. APP. P. 41 (1986, repealed 1997); see generally 49 Tex. B.J. 556 (1986); TEX. R.
CIV. P. 356 (1981, repealed 1986); see generally 43 Tex. B.J. 767 (1980). Other Texas
courts have recognized the scarcity of cases relating to perfection of appeals from justice
to county court. Those courts have held that judicial opinions construing the ordinary
appeal bond statutes govern disputes in justice court relating to appeal bonds and
affidavits in lieu thereof. This is because the purpose of those statutes is the same and the
language is similar to the justice court rules. See Tisdale v. F. Hannes & Co., 278 S.W.
324, 325 (Tex. Civ. App.—Austin 1925, no writ) (holding that cases interpreting statute
on appeal bonds in ordinary appeals from district or county courts are controlling in
justice court appeal bond cases); Hart v. Wilson, 156 S.W. 520, 521 (Tex. Civ. App.—
Amarillo 1913, no writ) (same).1
          We agree with the reasoning in these cases. Based on the same reasoning, we rely
on cases that construe later procedural rules (the successor rules of civil procedure to
articles 2098–2100) relating to appeal bonds in ordinary appeals from district or county
courts.

   1
     Although Tisdale and Hart predate the rules of civil and appellate procedure, no other authorities cast
doubt on their continued applicability or validity. See also 6 Tex. Jur. 3d Appellate Review § 886 (2008).


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Former Appeal Bond Rules in Appeals from District or County Courts

       The Texas Supreme Court has addressed whether, in an appeal from district court,
the time for filing an appeal bond was extended by a delay in ruling on a contest to an
affidavit of inability to pay costs. See King v. Payne, 156 Tex. 105, 110, 292 S.W.2d
331, 334 (1956).     When the court issued its opinion in King, Texas Rule of Civil
Procedure 356 governed the requirements for perfecting an appeal. See TEX. R. CIV. P.
354-356 (1956, repealed 1986). Like the current justice court rules, the version of rule
356 in effect at that time was silent as to whether a failed affidavit of inability to pay
costs extended the time within which to file an appeal bond if the time had expired under
the express language of the rule. See id.
       The facts in King are analogous to those presented in this case. In King, the
appealing party filed an affidavit in lieu of appeal bond. Id., 156 Tex. at 107, 292 S.W.2d
at 332. The nonappealing party successfully challenged the affidavit. Id. The appealing
party then attempted to file an appeal bond after the deadline provided in rule 356. Id.,
156 Tex. at 109-10, 292 S.W.2d at 334-35. In deciding the issue, the supreme court held
as follows:

               The appeal bond was filed too late to invoke appellate jurisdiction. . . .
               There is no provision or authority for extending the time within which
               to file a bond. Maples v. Service Mutual Ins. Co., Tex. Civ. App., 169
               S.W.2d 500, writ dismissed. In De Miller v. Yzaguirre, Tex. Civ.
               App., 143 S.W.2d 425, in which this court refused a writ of error
               unconditionally, it is clearly held that delay in acting on a contest of an
               affidavit in lieu of bond does not operate to extend the time for the
               filing of bond. See also Brandon v. Tartt, Tex. Civ. App., 220 S.W.2d
               672, no writ.

Id. Consequently, under King, an appeal bond could be filed after a failed affidavit of
inability to pay costs on appeal, but only within the time expressly provided in the rule.
Id.
       In 1981, the Texas Supreme Court amended rule 356. See TEX. R. CIV. P. 356(b)
(1981), amended by order of June 10, 1980, eff. Jan. 1, 1981; see generally 43 Tex. B.J.
767 (1980). Specifically, the supreme court added that ―[i]f a contest to an affidavit in
lieu of bond is sustained, the time for filing the bond is extended until 10 days after the




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contest is sustained….‖2 Tex. R. Civ. P. 356(b) (1981, repealed 1986). ―Prior to the
inclusion of [this] sentence in…Rule [356(b),] an appellant was doomed if the contest to
his affidavit was sustained after the deadline had passed for posting an appeal bond.‖
Templo Ebenezer, Inc. v. Evangelical Assemblies, Inc., 734 S.W.2d 770, 772 (Tex.
App.—Amarillo 1987, no writ).
         The Texas Supreme Court also amended rules 571 and 572 in 1981. TEX. R. CIV.
P. 571, 572 (1981), amended by order of June 10, 1980, eff. Jan. 1, 1981; see generally
43 Tex. B.J. 767 (1980). However, the automatic ten day extension provision was not
added to rule 571 or 572. Therefore, the pre-1981 result under King still applies to
justice court appeals.
The Result

         As discussed above, the pertinent facts in the cases at hand are the same as those
in King: an affidavit of inability was timely filed, but the justice court did not sustain the
contest until after the deadline for filing an appeal bond had expired. Because we are
constrained by the result in King, we conclude that Walker’s appeal bond was untimely
filed and therefore his appeal was not timely perfected.
         The Texas Supreme Court has adopted the policy that the decisions of the courts
of appeals should turn on substance rather than procedural technicality, and that the rules
of civil and appellate procedure should be construed liberally in favor of preserving the
right of appeal.        See Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997).
However, the time for perfecting an appeal is not a mere procedural technicality. See
Ballard v. Portnoy, 886 S.W.2d 445, 447 (Tex. App.—Houston [1st Dist.] 1994, no
writ). It is jurisdictional. Williams, 148 S.W.3d at 583. Although we are authorized to
liberally construe the rules of procedure, we do not have the authority to construe a rule

   2
       The 1981 amendment was prior to the adoption of the Texas Rules of Appellate Procedure. The
Texas Supreme Court adopted the Texas Rules of Appellate Procedure on September 1, 1986, thereby
repealing the former appellate rules, which were found in Texas Rules of Civil Procedure 352-522. Texas
Rule of Civil Procedure 356(b) then became part of Texas Rule of Appellate Procedure 41(a)(2), which in
pertinent part, is identical to rule 356(b). TEX. R. APP. P. 41(a)(2) (1986, repealed 1997); see generally 49
Tex. B.J. 556 (1986) (order of the Texas Supreme Court enacting the Texas Rules of Appellate Procedure).
Rule 41(a)(2) was repealed in 1997 as part of the Texas Supreme Court’s overhaul of the rules.
Specifically, in 1997, the court, as a general rule, dispensed with the need to file an appeal bond. In
contrast to justice court appeals, all that is necessary now to perfect an appeal from district or county courts
is a timely notice of appeal. Compare TEX. R. CIV. P. 571-573 with TEX. R. APP. P. 25.1(a); see generally
60 Tex. B.J. 876 (1997).

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of procedure so liberally as to enlarge our jurisdiction. Ballard, 886 S.W.2d at 447.
Accordingly, we overrule Walker’s sole issue.

                                               DISPOSITION
         We affirm the trial court’s judgment.



                                                                JAMES T. WORTHEN
                                                                    Chief Justice


Opinion delivered October 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (PUBLISH)




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