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# THE A’ITORNEY GENERAL -. OF TEXAS e Q203 **Arrs-rx~. TEZXAFI**  78711

June 4, 1973
The Honorable Jimmy Morris Criminal District Attorney Navarro County Corsicana, Texas 75110

Dear Mr. Morris: Opinion No. H-44 Re: Obligation ofDistrict

Clerk to~prepare transcript under Article 9.17, Election Code, and Rules of Civil Procedure 376, 377, and 386. **Your request**  for our opinion submits the question **of** whether, in an election contest, **rules** 376, 377, and 386 ofthe Texas Rules of Civil Procedure, onthe **one** hand, **or** Article 9.17 ofthe Election Code, onthe other, governs preparation and filing ofthe transcript on appeal. From your letter we gather that the appellant in

### aparticular election contest appeal has asked that the District Clerk prepare the transcript and deliver itto him, after which, as you etate, “he will wait until the last minute to file 

### same with the Clerk ofthe Court of Civil Appeals. ” Onthe other hand, the

## l ppellee demands that the Clerk deliver the transcript to the Clerk ofthe 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 inthe Court of Civil Appeals within 60 days from the rendition offinal judgment. Onthe other hand, Article 9,17 ofthe Election Code, V. T. C.S., provides that, in cases of appeal, “the Clerk shall, without delay, make upthe transcript and forward the same to the Clerk ofthe Court of Civil Appeals for,that district. ” The Revised Civil Statutes (1925) contained, as Article 3056, the following:

p. 177The Honorable Jimmy Morris, page 2 (H-44)

“Either the contestant or contestee may appeal from thejudgment ofthe district court to the Court of Civil Appeals, under the same rules and regulations 

### as are provided for appeals in civil cases; and such cases shall have precedence inthe Court of Civil Appeals over all other cases. Incase of appeal as provided for inthis Article, the Clerk, shall, without delay, make upthe transcript and forward the 

### same **to** the **Clerk** ofthe **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 2ofthe Texas Rulea of Civil Procedure which was amended in 1943 to add the provision that:

“
. . . and where any **statute** in effect immediately prior toSeptember 1, 1941, and not included inthe ‘List ofRepealed Statutes’ orescribed a rule ofprocedure inany special statutory proceeding differing from these rules, such statute shall apply
. . . .” Article 3056 was not among the “List of Repealed Statutes. ” Therefore, Article 9.17 should control, and not the Rules. That this is so is reinforced by the comment to Rule 2which states: “The 1943 and 1947 amendments make clear the inapplicability ofthe rules to special statutory proceedings, insofar as statutory rules ofprocedure 

### are specifically prescribed for such proceedings and differ from these rules. These special proceedings appear under the following titles inthe 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 toyour attention Wendover v. Tobin, 261S.W. 434, (Tex. Civ. App. , 

### SanAntonio, 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 ofappeal that the transcript shall be prepared upon the application ofone ofthe 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 upthe transcri same to the clerk of t of Civil Appeals for that district. ’” (261 Itis therefore our conclusion that contest the provlsionsofArticle the provision ofRules 376, 377, and Procedure. from **an** election Election Code prevail over

SUMMARk Inan election contest, upon notice of appeal, the Clerk should immediate1 proceed to prepare a transcript and should forwa dthe same to the Clerk ofthe Court ofCivil Appeal I without first delivering the same to theattorneys lo appellant.

Opinion Committee
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