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Rule 384. Appeal in Quo Warranto Proceedings (1947)

TEXT

In an appeal in a quo warranto proceeding the appeal shall be perfected and the transcript and statement of facts filed in the Court of Civil Appeals within twenty days after final judgment or order overruling motion for new trial; provided, that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, the court may grant a reasonable extension of time in which to file the record or any part thereof .

Source: Texas Rule 7 (for Courts of Civil Appeals).

Change: Elimination of provision for motion day in such causes.

Amended by order of Aug. 18, 1947, eff. Dec. 31, 1947: The previous rule has been almost completely redrafted and the procedure has been materially altered.

ADVISORY OPINIONS

(No. 43) Question: Are Articles 4662 and 2008 repealed? If so does an appeal lie in tem­porary injunctions and pleas of privilege?

Answer: It is the opinion of the sub­committee that those portions of Articles 4662 and 2008 which authorize appeals in the specified situations were not re­pealed by the adoption of the new rules. Accordingly, an appeal will lie from an order granting or refusing a temporary injunction or from an order sustaining or overruling a plea of privilege.

This conclusion is based upon the fact that said portions of the articles are ju­risdictional and not procedural. It will be noted that Rule 816 expressly provides that the new rules shall not be construed so as to extend or limit the jurisdiction of any courts. Furthermore the enumer­ation of repealed statutes indicates that the aforesaid articles were not repealed in their entirety; and in the note follow­ing Rule 384 it will be seen that those portions of Articles 2008 and 4662 which authorize appeals are carried for context so as to indicate that said portions of the articles were not repealed; and in the note following Rule 87 it is expressly stipulated that the portion of Article 2008 authoriz­ing appeals is not repealed.

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 20 (1945).

(No. 98) Question: In regard to Rule 87 concerning the notice to be given after the filing of a controverting plea: (1) Did the rule appeal the former statute, Article 2008; (2) Does the rule require service of notice upon each defendant in the case; (3) Is notice required only as to the defendant filing the plea of privilege?

Answer: In our opinion the first question should be answered in the affirmative, that is that Article 2008 has been repealed except for the portion of the article providing that "Either party may appeal from the judgment sustaining or overruling the plea of privilege." Said quoted part of the statute was considered jurisdictional and it was not repealed when the new rules were enacted, and said unrepealed portion is set out for context only following Rule 384. The remaining portion of Article 2008 was repealed and supplanted by Rule 87, and also partly by Rule 385. See list of repealed statutes enumerated in the Supreme Court order and published at the close of the rules in the Bar Journal.

In response to the second and third questions, it is the opinion of the sub-committee under Rule 87 that formal notice by mailing by registered mail of a copy of the controverting plea together with the judge's notation thereon is only required to be given to the defendant or de­fendants filing the plea of privilege. This con­clusion is reached because the provisions of the former statute which required service "on each defendant" were changed by the rule so as to require the mailing of the notice to "the de­fendant ... at the post office address stated in such plea of privilege."

Although we feel that the formal notice re­quired in the rule need only be given to the de­fendant filing the plea of privilege, nevertheless it is obvious that the other defendants in the case can be affected by the disposition of the plea of privilege, and therefore we feel that they should be advised of the date upon which the hearing will be had so that they may be present if they so desire at the time of the hearing. This is not because of any express provision in the rule, but merely because every party to a suit should be advised of the time that the court is going to hear a motion or take up any other matter in the case that might affect his interests.

While the subject is not directly within the questions, we feel that we should call attention to the fact that by amendment effective De­cember 31, next, the method of service has been extended to include a mere delivery to the de­fendant or his attorney of the controverting plea with the notation thereon of date of hearing. In other words, service may be had by manual delivery of the controverting plea as well as by registered mail.

6 Tex. B.J. 276 (1943) reprinted in 8 Tex. B.J. 35 (1945).