
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-92-614-CV



RANDY MANICCIA, JON MANICCIA, AND SUSAN MANICCIA,


 
	APPELLANTS


vs.



JOHNSON & GIBBS, P.C.; KATHRYN K. LINDAUER; ALDOS HOLDINGS, LTD.;
WILLIAM M. MOORE; AND DANIEL N. MATHESON, III,


	APPELLEES


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 91-1967, HONORABLE JOSEPH H. HART, JUDGE PRESIDING

 


	Randy Maniccia, Jon Maniccia, and Susan Maniccia (collectively, "the
Maniccias"), appellants, sued Johnson & Gibbs, P.C.; Kathryn K. Lindauer; Aldos Holdings,
Ltd.; William M. Moore; and Daniel N. Matheson III (collectively, "defendants"), appellees, in
the district court of Travis County.  After a jury trial, the district court rendered a take-nothing
judgment against the Maniccias.  The trial court subsequently sustained contests to the Maniccias'
affidavit of inability to pay the costs of appeal; on defendants' motion, the court also increased
the amount of the cost bond.  Seeking to appeal, the Maniccias have now filed in this Court a
motion to reduce the amount of the cost bond on appeal.  See Tex. R. App. P. 46(c), 49(b).  We
will overrule the motion.
	A detailed review of the procedural history of this case is important to an
understanding of the legal issues presented here:

(1) August 28, 1992.  Following a jury trial, the trial court signed a take-nothing
judgment against the Maniccias; the judgment assessed costs of court in the amount of
$21,720.76 against the Maniccias.

(2) November 24, 1992.  Following the overruling by operation of law of their motion for
new trial, the Maniccias filed a joint affidavit of inability to give a cost bond, in which
they averred that they were "unable to pay all or any part of the costs of appeal, or to give
security therefor."  

(3) November 30, 1992.  The defendants and three official court reporters filed contests
to the Maniccias' affidavit of inability; in addition, the defendants filed a motion to
increase the amount of the cost bond to at least $30,000.

(4) December 4 & 8, 1992.  The trial court held an evidentiary hearing on both the
contests to the affidavit of inability and the motion to increase the cost bond.  Regarding
the contests, evidence was presented that an individual had offered to loan or advance
$5,000 to one or more of the Maniccias to cover the expenses of prosecuting an appeal;
regarding the motion to increase the cost bond, evidence was presented that, in addition
to accrued court costs of almost $22,000, the statement of facts would cost approximately
$8,000.

(5) December 8, 1992.  At the conclusion of the hearing, the trial court signed two orders: 
the first sustained the defendants' contests to the Maniccias' affidavit of inability, and the
second increased the amount of the cost bond to $30,000, with the bond to be filed by
December 18, 1992.

(6) December 18, 1992.  The Maniccias deposited $1,000 in cash with the district clerk
in lieu of filing a cost bond.

(7) December 21, 1992.  The Maniccias filed in this Court a motion for leave to file a
petition for writ of mandamus, seeking review of the trial court's order sustaining the
contests to the affidavit of inability.  The Maniccias also filed in this Court a motion to
reduce the cost bond, seeking review of the trial court's order increasing the amount of
the bond.

(8) February 10, 1993.  This Court issued an unpublished per curiam opinion overruling
the Maniccias' motion for leave to file petition for writ of mandamus, concluding that
"[o]ur review of the record . . . shows that the Maniccias did not meet their burden of
proof to sustain the allegations of their affidavit."  In a separate per curiam opinion, this
Court dismissed the Maniccias' motion to reduce the cost bond as having been prematurely
filed under rule 46(c) of the Texas Rules of Appellate Procedure.

(9) February 16, 1993.  The Maniccias filed in this Court a second motion to reduce the
cost bond.

(10) February 24, 1993.  Defendants filed in this Court a motion to dismiss the
Maniccias' appeal for failure to file the increased cost bond and for failure to file the
transcript and statement of facts.

The following motions are currently pending in this Court:
(1)  The Maniccias' motion to reduce the cost bond;

(2)  The Maniccias' supplemental motion to reduce the cost bond;

(3)  A motion for extension of time to file the appellate record, in which the
Maniccias request an extension of time to file the record until thirty days after we
rule on the motions to reduce the cost bond;

(4)  An amended motion for extension of time to file the appellate record, not
different in substance from the Maniccias' original motion for extension; and

(5)  Defendants' motion to dismiss the Maniccias' attempted appeal.

	By their motion to reduce the cost bond, the Maniccias contend that the trial court
abused its discretion in increasing the amount of the cost bond on appeal to $30,000.  A trial court
abuses its discretion if it acts without reference to any guiding rules and principles or if its
decision is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. 
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).  In the present case,
the trial court increased the cost bond to an amount just large enough to cover the accrued taxable
court costs that had been paid by the defendants and the estimated cost of the statement of facts. 
The Maniccias do not assert that the costs of court (approximately $22,000) were improper or for
some other reason should not have been taxed against the losing party pursuant to rule 131 of the
Texas Rules of Civil Procedure.  Nor do they assert that the estimated cost of the statement of
facts (approximately $8,000) was excessive or otherwise improper.  Rather, they assert simply
that the trial court's action in increasing the amount of the cost bond to include all costs of court
and the full estimated cost to prepare the statement of facts constituted an abuse of its discretion
because they cannot afford to pay it.  We disagree.
	Initially, we note that the Maniccias have not filed a new or amended affidavit of
inability attempting to establish that, although they can pay the basic $1,000 cost bond, they are
unable to pay the increased amount of the appellate costs.  See Vickery v. Porche, 848 S.W.2d
855, 858 (Tex. App.Corpus Christi 1993, no writ).  The only affidavit of inability they have
ever filed is the one in which they swear that they are unable to pay "any part" of the costs of
appeal.  Moreover, the Maniccias have already sought and obtained, through their mandamus
proceeding, appellate review of the trial court's order sustaining the contests to that affidavit.  See
Allred v. Lowry, 597 S.W.2d 353, 354 n.2 (Tex. 1980); White v. Baker & Botts, 833 S.W.2d 327,
329 (Tex. App.Houston [1st Dist.] 1992, orig. proceeding).  This Court has already held that
the trial court did not abuse its discretion in sustaining those contests.  Thus, although the
Maniccias' ability to pay the costs of appeal or to give security therefor was at issue in the earlier
mandamus proceeding, it is not at issue here.
	This appeal, therefore, involves (1) no issue of the Maniccias' ability to pay the
costs of appeal, (2) no issue as to the amount or propriety of the court costs taxed against the
Maniccias, and (3) no issue of the accuracy of the estimated cost of the statement of facts.  Rather,
the only issue in this motion is whether rule 46(c) of the Texas Rules of Appellate Procedure
authorizes a trial court to increase the amount of a cost bond or deposit to cover court costs paid
in the trial court by the appellee and the estimated cost of the statement of facts.  We conclude it
does.
	Rule 46 provides:

(a) Cost Bond.  Unless excused by law, the appellant shall execute a bond payable
to the appellee in the sum of $1000 . . . . The bond on appeal shall have sufficient
surety and shall be conditioned that appellant shall prosecute his appeal or writ of
error with effect and shall pay all costs which have accrued in the trial court and
the cost of the statement of facts and transcript. . . . Appellant may make the bond
payable to the clerk instead of the appellee, and same shall inure to the use and
benefit of the appellee and the officers of the court, and shall have the same force
and effect as if it were payable to the appellee.

(b) Deposit.  In lieu of a bond, appellant may make a deposit with the clerk
pursuant to Rule 48 in the amount of $1000 . . . .

(c) Increase or Decrease in Amount.  Upon the court's own motion or motion of
any party or any interested officer of the court, the court may increase or decrease
the amount of the bond or deposit required. . . . If a motion to increase the amount
is granted, the clerk and official reporter shall have no duty to prepare the record
until the appellant complies with the order.  If the appellant fails to comply with
such order, the appeal shall be subject to dismissal or affirmance under Rule 60.
. . . In determining the question of whether an appellant's bond or deposit should
be increased to more than the minimum amount of $1000, the court shall credit the
appellant with such sums as have been paid by appellant on the costs to the clerk
of the trial court or to the court reporter.

. . . .

(e) Payment of Court Reporters.  Even if a bond is filed or deposit in lieu of
bond is made, appellant shall either pay or make arrangements to pay the court
reporter upon completion and delivery of the statement of facts.

Tex. R. App. P. 46.
	The immediate predecessor to appellate rule 46 was rule 354 of the Texas Rules
of Civil Procedure.  Before 1962, former rule 354 required that a cost bond be conditioned only
that the appellant pay all costs that had accrued in the trial court and that might accrue in the
appellate courts.  Tex. R. Civ. P. 354, 136 Tex. 550 (1940, amended 1962).  Before 1962,
therefore, the cost bond mandated by former rule 354 covered only costs of court not already paid
by the appealing party, and did not cover the cost of preparing the transcript or statement of facts. 
See City of Ingleside v. Johnson, 537 S.W.2d 145, 151 (Tex. Civ. App.Corpus Christi 1976,
no writ).  The purpose and effect of such a rule was to provide security for the nonappealing
party.  Pillow v. McLean, 88 S.W.2d 702, 703 (Tex. 1935).  Rule 354 was amended in 1962 to
require that a cost bond be conditioned that the appellant also pay the cost of the statement of facts
and the transcript; with the promulgation of the Texas Rules of Appellate Procedure in 1986, that
requirement was carried forward into appellate rule 46(a).  Thus, the purpose of the appeal bond
required by rule 46 is to ensure payment of all the costs of appeal, including (1) accrued costs of
court not previously paid by the appellant; (2) the fee of the court reporter for preparing the
statement of facts; and (3) the fee of the trial court clerk for preparing the transcript.  See Vickery,
848 S.W.2d at 856-57; Shenandoah Assocs. v. J & K Properties, Inc., 696 S.W.2d 685, 686
(Tex. App.Dallas 1985, no writ); Tapiador v. North Am. Lloyds, 772 S.W.2d 954, 955 (Tex.
App.Houston [1st Dist.] 1989, no writ).
	In the present case, the trial court simply increased the amount of the cost bond to
cover the accrued court costs and the estimated cost of the statement of facts.  No part of such
costs can be said to be unnecessary to the appeal.  For example, in Shenandoah Associates, the
trial court ordered the cost bond increased to $13,689.04 to secure the payment of (1) actual trial
court costs of $8,689.04 and (2) the $5,000 cost of an extra copy of the statement of facts for the
appellee (no security was needed for the cost of the original statement of facts).  The appellate
court correctly held that the extra copy of the statement of facts was not necessary for the appeal
and reduced the amount of the cost bond by $5,000.  With respect to the court costs of $8,689.04,
however, the court held:  "Here, the trial court ordered an increase in the appeal bond to secure
the `actual trial costs' of $8,689.04.  We find no abuse in this action."  696 S.W.2d at 686
(emphasis added).  The $8,689.04 increase in the cost bond approved by the court of appeals in
Shenandoah Associates was based on accrued trial-court costs, in precisely the same way that
$22,000 of the increase in the cost bond in the present case is based on accrued trial-court costs. 
The portion of the increase that was disapproved in Shenandoah Associates (an extra copy of the
statement of facts) was based on a cost that bears no resemblance to any cost in the present case.
	Nor can it be said that the trial court's judgment itself secures the court costs,
merely because it includes an award of such costs.  A judgment "secures" nothing; it is simply
an official judicial decision on the respective rights and claims of the parties to an action submitted
to a court for its determination.  See Black's Law Dictionary 841-42 (6th ed. 1990).  The term
"security," on the other hand, implies something of value "given by a debtor in order to assure
the payment or performance of his debt, by furnishing the creditor with a resource to be used in
case of failure in the principal obligation."  Id. at 1355.  A cost bond operates as just such a
"resource" to be used to pay costs of court if an unsuccessful appellant fails to do so.  Thus, even
though rule 131 of the Texas Rules of Civil Procedure requires costs of court to be taxed against
the losing party, the filing of a cost bond is a separate and distinct requirement under appellate
rule 46.  If the inclusion of such costs in the judgment were sufficient "security," there would be
no need for the additional requirement of a cost bond.  Yet these two requirements have coexisted
for over a hundred years. (1)
	The Maniccias also contend that, under the supreme court's recent decision in
Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440 (Tex. 1993), rule 46
is unconstitutional as an "unreasonable financial barrier" to litigants seeking to appeal.  We
disagree.  The Texas Association of Business opinion is merely the supreme court's most recent
recognition that, under the "open courts" provision of the Texas Constitution, "citizens must have
access to [their] courts unimpeded by unreasonable financial barriers."  852 S.W.2d at 448; see
Tex. Const. art. I, § 13.  As stated earlier, the Maniccias' ability to pay or give security for the
costs of appeal is not at issue in the present appeal.  Therefore, the holding in Texas Association
of Business is not applicable here.
	Even if the Maniccias' ability to pay were at issue, however, appellate rule
40(a)(3), which permits an appellant to file an affidavit of inability to pay or give security for the
costs of appeal in lieu of a cost bond, prevents indigence from denying an appellant the
opportunity for judicial review.  See Dillingham v. Putnam, 14 S.W. 303, 304-05 (Tex. 1890);
Elaine A. Carlson, Mandatory Supersedeas Bond RequirementsA Denial of Due Process Rights?,
39 Baylor L. Rev. 29, 31-34 (1987).
	We conclude that the provision contained in appellate rule 46 permitting the trial
court to increase the amount of an appellant's cost bond to cover accrued trial-court costs, the cost
of the statement of facts, and the cost of the transcript is not an unreasonable restriction on the
right of litigants to receive appellate review of adverse trial-court judgments.  Accordingly, we
hold that rule 46 does not violate article I, section 13 of the Texas Constitution.  We conclude,
therefore, that the trial court did not abuse its discretion in increasing the amount of the
Maniccias' cost bond to $30,000. (2)
	We overrule the Maniccias' motion and supplemental motion to reduce the amount
of the cost bond.  Because the Maniccias have not filed the required cost bond, and because they
have stated unequivocally to this Court that they cannot afford a $30,000 bond, we grant
defendants' motion to dismiss the appeal pursuant to appellate rule 46(c).  In light of the dismissal
of the appeal, we dismiss as moot the Maniccias' motion and amended motion to extend the time
for filing the appellate record.


  					J. Woodfin Jones, Justice
Before Chief Justice Carroll, Justices Aboussie and Jones
Appeal Dismissed
Filed:   February 2, 1994
Publish
1.        See Act approved May 13, 1846, 1st Leg., R.S., § 122, 1846 Tex. Gen. Laws 363, 394,
reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822-1897, at 1669, 1700 (Austin, Gammel
Book Co. 1898) (repealed and codified in 1879, 1895, 1911, and 1925, and deemed repealed and
replaced by Tex. R. Civ. P. 131); Act approved April 13, 1892, 22nd Leg., 1st C.S., ch. 17, § 1,
art. 1400, 1892 Tex. Gen. Laws 42, 44, reprinted in 10 H.P.N. Gammel, The Laws of Texas
1822-1897, at 406, 408 (Austin, Gammel Book Co. 1898) (repealed and recodified in 1895, 1911,
1925, and deemed repealed and replaced by Tex. R. Civ. P. 354, currently Tex. R. App. P.
46(a)).
2.        We note, however, that trial judges should use due restraint in exercising their discretion
to increase cost bonds under rule 46(c).
