### GENERAL

Honorable Joe Resweber OninionNo. 

### c-428 countyAttorney Harris County Harris County Courthouse Houston, Texas Re:

Dear Sir:
You have requestedan opinion which you asked: Whether it isproper 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 itproper 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 thenegative, what is theproper method of collecting the fee for thepreparation of the said certified copies?" Article 3930, Vernon's Civil Statutes,provides in part: "Clerks of the County Courtmay receivenot to exceed the following fees: II

. . . "Recording,transcribingor copyingall papers or records required or permittedby law tobe recorded,,transcribedor copied,with or without certificateand seal, for each 100 words, not otherwiseprovided 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:

"Theparty desiring to appeal, within ten days from the date of rendition of the decision, order, decree or judgment appealed from, shall filewith the county clerk a written directionas to the matterswhich he deemsnecessary 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 interestedparty may so file a written direction to include in the transcript additionalportions of the proceedings. The county clerk shall thereupon immediatelyprepare under his hand and seal of the court a transcript consisting of a true copy of theproceedings so designated. The appealingparty shall file such transcriptwith 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 courtwithin such thirty day period, orwithin five days thereafter, showinggood cause therefor, such courtmay grant a reasonable extension of time inwhich 'tofile such record, or any part thereof. "Whenever the county judge is of the opinion that originalpapers or exhibits shouldbe 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, transmittaland return thereof as he deemsproper. The district courtmay by like order direct the county clerk to send to it any originalpaper or exhibit deemednecessary 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, togetherwith suchpapers and exhibits, shallbe transmittedby the county clerk to the district clerkwithin thirty days from the date of rendition of the decision, order, decree or judgmentappealed from.

-2017-Hon. Joe Resweber,page 3 (C-428)

**”** " As amendedby order of April 12, 1962, iffective Sept. 1, 1962.
You will note that "the,partydesiring to appeal,

. . . shall filewith the county clerk a written direction as to the matters which & deemsneoessary to a review of the county court ruling appealed from, tobe included in a tgn~~r~~. Within five days

. . .any other interestedparty Y e a written direction to include in the transcript additionalportions of the proceedings. The county clerk shall thereupon immediatelyprepare under hfs hand and seal of the court a transcript consisting of a true copy of the proceedings so designated.

. . ."

The above thenbecomes the transcript of theproceedings and is then filedwith the district clerk. You will note that the appelleehas the right to have included in the transcript additionalportions 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 approvedby the county clerk,payable to the county judge in **an** amount to be fixed by the county judge, conditioned that the appealing party shallprosecute said appeal with effect, and perform the decision, order, decree or judgment which the district court shallmake thereon in case the cause shallbe decided **against** him; or in lieu of a bond, theparty desiring to appeal may depositwith the clerk cash in the amount so fixedby 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** isprepared, and this shallhave the force and effect of an appeal bond." As amended by order ofApril 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 thepreparation 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 thathe requests to go to the district court, as thebond requiredby Rule 

### 333,Texas Rules of Civil Procedure (except in cases specified in Sec. 29 Texas Probate Code) is security for any cost incurred inpreparing a transcript toperfect an appeal from theprobate 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-