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I 

THE A’ITORNEY GENERAL 

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OF TEXAS 

e 

Q 203 

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 of District 

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 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 regulations 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 immediately 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. ” Therefore, 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 proceedings, 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) 

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p. 178 
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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 

contest the provlsionsofArticle 

the provision of Rules 376, 377, and 

Procedure. 

from an election 

Election Code prevail over 

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 

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without first delivering 

the same to the attorneys lo appellant. 

Opinion Committee 

P- 17tJ