GENERAL 

Honorable Joe Resweber Oninion No. c-428 

county Attorney 

Harris County 

Harris County Courthouse 

Houston, Texas 

Re: 

Dear Sir: 

You have requested an opinion 

which you asked: 

Whether it is 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. 

from this office in 

"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 rendition 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 

your first question. 

is answered by our opinion on 

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-