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Rule 355. Party Unable to Give Cost Bond (1955)

TEXT

(a) When the appellant is unable to pay the costs of appeal or give security therefor, he shall be entitled to prosecute an appeal by filing with the clerk his affidavit stating that he is unable to pay the costs of appeal or any part thereof, or to give security therefor.

(b) The appellant or his attorney shall forthwith give notice of the filing of such affidavit to the opposing party or his attorney.

(c) Any interested officer of the court or party to the suit, may, by sworn pleading, contest the affidavit within ten days after the giving of such notice whereupon the court trying the case (if in session) or (if not in session) the judge of the court or county judge of the county in which the case is pending shall set the contest for hearing, and the clerk shall give the respective parties notice of such setting.

(d) Upon such hearing the burden of proof shall rest upon the appellant to sustain the allegations of his affidavit.

(e) Where no contest is filed in the allotted time the allegations of the affidavit shall be taken as true.

(f) Where the appellant is able to pay or give security for a part of the costs of appeal he shall be required to make such payment or give such security (one or both) to the extent of his ability.

Amended by order of July 20, 1954, eff. Jan. 1, 1955: Appellant or his attorney, rather than clerk, required to give notice provided in paragraph (b).

ADVISORY OPINIONS

(No. 121) Question: 1. Under Rule 355 provid­ing that the clerk shall give notice to the opposing party or his attorney of the fil­ing by the appellant of an affidavit of in­ability to pay the costs of appeal, and also providing that the clerk shall give notice of the setting of a contest for hearing, what character of notice is required?

2. When a contest is filed under Rule 355 can the court set and hear the contest immediately, or is it necessary to wait ten full days from the filing of the contest or from the date of notice?

Answer: 1. In regard to the first ques­tion it is the opinion of the Subcommittee that the word "notice" as used in Rule 355 does not imply citation or service by the sheriff or constable: See former Opinion No. 57 of this Subcommittee (5 Tex. B.J. 332), in regard to notice under Article 4639a. Any means by which the party or his attorney is given actual knowledge of the filing of the affidavit or of the date for the setting constitutes a sufficient compliance with the requirements of Rule 355 as to notice. In our opinion notice by word of mouth or by telephone or by a letter from the clerk or by delivery of a copy of the affidavit or the judge's order setting the case would suffice. In regard to the notice of the filing of the affidavit we recommend that some form of notice be given in writing, such as a letter from the clerk, in order to elimi­nate the possibility of a question being raised as to whether notice was actually given. However, we do not feel that it is necessary that the notice be in writing in order to constitute legal notice under the rule.

2. In regard to the second question it is the opinion of the Subcommittee that the hearing upon a contest may be had after reasonable notice of the setting, without waiting for a ten-day period to elapse. The rule provides that a court officer or a party to the suit may contest the affidavit within ten days after the giving of such notice "whereupon the court … shall set the contest for hearing." The ten-day period applies to the time allowed for filing a contest, but after a contest is filed the court can hear same at any time upon reasonable notice.

7 Tex. B.J. 118 (1944) reprinted in 8 Tex. B.J. 45 (1945).