DAN MORALES

ATTORNEY CENERAL 

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## State of llCexa$ August 29,1997
The Honorable John Vance Dallas County District Attorney Administration Building 411 EhnStreet Dallas, Texas 75202 Opinion No. DM-449 Re: Whether filing of appeal bond, or affidavit of inability in lieu thereof, excuses justice court appellant from requirements ofrule 143a (RQ-934) Dear Mr. Vance: You tell us that in Dallas County, when acase is appealed from ajustice court to a county court, the Dallas County Clerk’s office processes the case as an original law suit’ and sends anotice directing the appellant to pay court fees totaling $155.00.2 Rule 143a ofthe Texas Rules of Civil Procedure deems an appeal l%om ajustice court not perfected ifthe appellant fails to pay the court costs within twenty days after being notified to do soby the county clerk.3 Ifthe appellant fails to pay the costs within the requisite time, the Dallas County Clerk’s office, relying upon rule 143a, returns all papers filed in the case to thejustice court. You ask whether a party is excused from complying with rule 143aif the party posted an adequate appeal bond pursuant to rule 571 of the Texas Rules ofCivil Procedure or filed an affidavit ofinability pursuant to civil procedure rule 572. Rule 571 requires the appellant t%m ajustice court to file an appeal bond within ten days Ram the date thejudgment or the order overruling a motion for new trial was signed. Tex. R. Civ. P. 571. The bond must be filed with and approved by thejustice, be made payable to the appellee, contain two ormore good and sufficient sureties, and be conditioned that appellant shall prosecute the appeal to effect andpay off and satisfy anyjudgment which may be rendered against appellant on appeal. Id. The amount ofthebond mustbe double the amount ofthejudgment; or,ifthe appeal is brought by aplaintiff whose claim was denied in whole or in part, the bond must be for double the amount ofthe costs incurred in thejustice court plus the estimated costs in the county court, minus any amount the plaintiff may have paid on the costs. Id. Rule 572 allows an appellant who

‘An appeal from ajustice court toa county court is tried de nova Tex. R. Civ. P. 574b. Lou inform us that this sum comprises ajudicial salary fee ($30); security fee ($5); record management fee ($5); clerk’s fee ($40); court reporter service fee ($15); bailiff fee ($30); law library fund fee ($15); appellate fee ($5); and mediation fund fee ($10).

‘Rule 143a provides: “Ifthe applicant fails to pay the costs on appeal from ajudgment of ajustice of the peace or small claims court within twenty (20) days after beiig notified to do. so by the county clerk, the appealshallbe deemed not perfected and the county clerk shall return alIpapers in said cause to thejustice of tbe peace having original jurisdiction and thejustice of the peace shall proceed as though no appeal bad been attempted.”The Honorable John Vance - Page 2 (DM-449)

isunable topay the costs ofappeal, orgive security therefor, to file an afiidavit ofinability swearing to such facts. Tex. R. Civ. P. 572. Rule 573 deems an appeal from ajustice court perfected when either an appeal bond or an aftidavit ofinability has been f11ed.~ Your question regarding the effect of the filing of a rule 571 appeal bond is answered by Almuhrubi v.Booe, 868 S.W.2d 8(Tex. App.--El Paso 1993,no writ). In that case, ajustice court entered adefault judgment against Mr. Almahrabi in the amount of $5,000, plus $40 in costs. Id. at 9. Attempting to perfect his appeal to the county court at law, Mr. Almabrabi properly tiled a $10,000 appeal bond in thejustice court. Id. The El Paso County Clerk’s off& notified him that the costs ofthe appeal must bepaid to the clerk’s office within twenty days ofthe date of the notice or, in accordance with rule 143a.,the appeal would be deemed not perfected. Id. Mr. Almahrabi failed topay the costs to the county clerk within the requisite time, and the county court dismissed the appeal for lack ofjurisdiction. Id. The issue for the court of appeals was whether Mr. Almahrabi’s $10,000 appeal bond was sufficient to perfect his appeal. Id. The court said:

In order to perfect an appeal to the county or district court from ajustice court, an appellant must: (1) file an appeal bond asrequiredby Rule 571 or file an afftdavit of inability to pay under Rule 572; and (2) pay to the county clerk, within 20 days a&r being notified to do so by the county clerk, the costs on appeal asrequired by Rule 143a. Compliance with each ofthe above requirements isjurisdictional, and as the language in Rule 573 indicates, only compliance therewith will act to perfect the appeal. Id. at 10(footnote omitted). Mr. Ahnahrabi arguedthat the $10,000 appeal bond satisfied rules 571 and 143a The court disagreed. Rule 571required appellant to file abond in an amount double the judgment Thejudgment against him was for $5,000, so his $10,000 bond covered the requirement ofrule 571. The amount ofthe bond was insufficient, however, to satisfy the $110 in appeal costs requested by the county court. Id. Appellant did not comply with rule 143a, the appeal was not perfected, and the county court was without jurisdiction to hear the case. Id. The Ahahrabi court reasoned that the appeal bond required by rule 571 forjustice court appeals isanalogous to the supersedeas bond required by rule 47(a) oftheTexas Rules of Appellate

‘Rule 573 provides:“when the bond, or tbe aflidavit in lieu thereof, provided for in the rules applicable to justice courts, has been filed and the previous requimmnts have been complied with, the appeal shall be held to be perfected.”

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Procedure for appeals from county and district courts to courts of appeals.’ The purpose of the supers&as bond isto suspend execution ofthejudgment and secure the appellee against any loss or damages occasioned by the appeal pending a final determination. Tex. R. App. P. 47(a). An appellant to acourt of appeals may alsoberequired to file acostbond, pursuant to appellate rule 40, for the purpose of securing the trial court and the appellate court ofthe costs of appeal. See Vickery v.Porche, 848 S.W.2d 855,856-57 (Tex. App.--Corpus Christi 1993, no writ) (stating purpose of cost bond). A supersedeas bond may serve as acost bond ifitis sufficient to secure the costs. Tex. R App. P. 47(a). Analogizing the rule 571appeal bond to a supersedeas bond, theAlmahrubi court ruled that Mr. Ahnabrabi’s appeal bond did not satisfy the county court’s request for costs because the amount ofthe bond was not in an amount sufficient to secure the costs. We wnstme theAbnahrubi court’s ruling to mean that ifthe appellant in that case had filed an appeal bond in the amount of$10,110, he would have complied with rule 571 and rule 143a, and his appeal would have been perfected. An appellant from ajustice court who files an adequate appeal bond pursuant to rule 571 complies with rule 143aifthe bond is in an amount sufficient to cover the costs of appeal. You advocate construing Almahrubi to require an appellant to comply with rule 143a separately f?om rule 571. “Nothing in Rule 571,” you say, “appears to provide any protection for the County Clerk.” The appeal bond required by rule 571must be made payable to the appellee and is made for the purpose of securing the appellee. Rule 143a,you argue, is intended to ensure that court costs are paid to the county clerk if an appeal is toproceed. You would require an appellant to comply with rule 143aeven when the appellant is aplaintiff whose claim was denied in whole or in part, in which caserule 571 requires that bond be in an amount sufficient to cover the estimated costs in the county court. Tex. R. Civ. P. 571. We do not believe theAbmhrubi decision may be construed in that way. Although the court stated that an appellant must comply with both rules143a and 571, the court, analogizing ajustice court appeal bond to a supersedeas bond, stated that a supersedeas bond may serve as acost bond if itis sufficient to secure the costs. The court upheld the dismissal ofMr. Ahnahrabi’s appeal on the grounds that the amount ofthe bond was insufficient. “Appellant is $110 short,” the court said. Abmhrubi, 868 S.W.2d at 10. We can only assume that ifMr. Almahrabi’s bond had been in the amount of $10,110, the court would have ruled that his appeal was perfected. We tum now toyour question regarding the effect ofthe filing ofan affidavit ofinability pursuant to rule 572. Rule 572provides: “Where appellant isunable to pay the costs of appeal, or give

‘Rule 47(a) provides: “[A]judgment debtor may suspend the execution of thejudgment by filing a good and sufficient bond tobe approved by tbe clerk, subject to review by the court on hearing, or making tbe deposit provided by mle 48, payable to thejudgment creditor in the amount provided below, conditioned that thejudgment creditor shall prosecute his appeal or wit of errorwith effect and, in case thejudgment of the Supreme Court 01court of appeals shall be against him, he shall perform itsjudgment, sentence or decree and pay all such damages and costs as said court may award against him.”

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security therefor, he shall nevertheless be entitled to appeal by making strict proof of such inability within five days after thejudgment or order overruling motion fornew trial is signed

. .” Tex. R. Civ. P. 572. The aflidavit of inability may be contested by the appellee and, if thejustice court denies appellant’s right of appeal upon the affidavit, the matter will be heard by the county judge. Id. Rule 572 recognizes the principle set out inthe Texas Constitution that courts must be open to all persons with legitimate disputes, notjust those who can afford to pay the fees to get in. See Tex. Const art I, 5 13(“All courts shall be open and every person for an injury done him shall have remedy by due courseoflaw.‘?; Gr@n Zndus.,Inc. v. Thirteenth CourtofAppeals, 934 S.W.2d 349,353 (Tex. 1996). Therule wasintended to allow aperson unable topay costs or to give security therefor to perfect an appeal. An appellant from ajustice court who files an affidavit of inability pursuant to rule 572 isnot required to comply with arequest forpayment ofcosts made pursuant to rule 143ain order to perfect an appeal6

6Rule 145 of tbe Texas Rules of Civil Procedwe, which aknvs apartyfiling an original action to file an affidavit of inability to pay costs, might also apply to appeals from justice courts, since justice court appeals are filed as original actions and tied de nova. We do not believe that tbe rules require an appellant to file a rule 145 afiidavit if an affkiavit has already been filed pursuant to rule 572.

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SUMMARY An appellant from ajustice court who files an appeal bond in compliance with rule 571 ofthe Texas Rules ofCivil Procedure also complies with rule 143a of the rules ifthe bond is in an amount sufficient to cover the costs of appeal. An appellant from ajustice court who files an affidavit of inability pursuant torule 572 is not required to comply with arequest for payment of costs made pursuant to rule 143ain order to perfect an appeal.

DAN MORALES Attorney General of Texas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Barbara Griffin Assistant Attorney General

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