Back to Main Page / Back to List of Rules
Rule 363. Appeal or Writ of Error Perfected (1981)
TEXT
When a bond is required by law, the appeal is perfected when the bond, cash deposit or affidavit in lieu thereof has been filed or made, or if affidavit is contested, when the contest is overruled. When a bond for costs on appeal is not required by law, the appeal is perfected when notice of appeal is made under the provisions of Rule 356(c). The writ of error is perfected when the petition and bond or cash deposit is filed or made (when bond is required), or affidavit in lieu thereof is filed, or, if contested, when the contest is overruled.
Amended by order of June 10, 1980, eff. Jan. 1, 1981: “Cash deposit” is added between “bond” and “or” in the first sentence. In the second sentence, the reference to Rule 354(c) is changed to Rule 356 (c). In the third sentence, “or cash deposit is filed or made” is added after “bond” and before “when.”
| Prior Amendments | Future Amendments |
|---|---|
| Oct. 29, 1940, eff. Sept. 1, 1941 | Repealed by order of April 10, 1986, eff. Sept. 1, 1986 |
| March 31, 1941, eff. Sept. 1, 1941 | |
| July 22, 1975, eff. Jan. 1, 1976 |
ADVISORY OPINIONS
(No. 29) Question: What is the effect of the footnote following Rule 353, which states that "Appeal is perfected when notice of appeal is given"; and the footnote following Rule 363, stating that the change by amendment of March 31, 1941, was the addition of the words "or if affidavit is contested, and when the contest is overruled."
Answer: Said footnotes have no effect upon the meaning of these rules.
The original order of the Supreme Court adopting the rules provides that "only the rules themselves are adopted by this Court"; and the order adopting the amendments of March 31, 1941; expressly provides that "The amendments to the notes at the foot of the respective rules are not made as parts of the respective rules." (See BAR JOURNAL, October, 1941, pages 619, 623 and 624.)
The footnote following Rule 353 is incorrect; and the footnote following Rule 363 is incomplete.
As originally adopted, Rule 363 provided that an appeal was perfected by giving notice of appeal, without reference to the filing of the bond, and the footnote so stated. (See Rule 363 in BAR JOURNAL, December, 1940.) Thereafter, on March 31, 1941, the Rules were amended so as to revert to the former statutory requirement of filing the bond as one of the steps in perfecting the appeal; and the footnote to the contrary following Rule 363 was stricken out and a new footnote inserted. The new footnote, however, is incomplete in that it only shows a portion of the added matter and does not reflect the entire change accomplished by the amendment.
When Rule 363 was thus amended on March 31, 1941, the footnote under Rule 353 should have been stricken out insofar as it states that "Appeal is perfected when notice of appeal is given"; and it was merely an oversight that this portion of said footnote was not stricken out.
5 Tex. B.J. 169 (1942) reprinted in 8 Tex. B.J. 14 (1945).