-        ,

     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:
                                                                                 -
                 “.    . . 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
-   .


.


        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



                                             P- 17tJ
