                                      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-
