If I appeal a Texas justice court case and post an appeal bond, do I still have to separately pay the county clerk's court costs?

TX AG Opinion DM-0449: Does an appeal bond or affidavit of inability excuse a justice-court appellant from Rule 143a court costs?

Plain-English summary

In Texas, a case decided in a justice court (the small-claims and minor-civil-dispute level) can be appealed to the county court, where it is retried from scratch. To get that appeal off the ground, the rules require two things: file a bond (or, if you cannot afford it, a sworn affidavit of inability to pay) under the justice-court rules, and then pay the county-court costs after the county clerk sends you a bill. Rule 143a says that if you do not pay those costs within twenty days of the clerk's notice, your appeal is treated as never perfected and the papers go back to the justice court.

The Dallas County District Attorney, John Vance, described a recurring problem: the Dallas County Clerk processed each justice-court appeal as a brand-new lawsuit and sent the appellant a bill for $155 in court fees. He asked whether an appellant who had already posted an adequate appeal bond under Rule 571, or filed an affidavit of inability under Rule 572, still had to satisfy the Rule 143a cost demand on top of that.

The Attorney General gave a two-part answer. For appellants who post a bond: a Rule 571 appeal bond also satisfies Rule 143a, but only if the bond is big enough to cover the costs of appeal as well as the underlying judgment. The opinion read the El Paso Court of Appeals decision in Almahrabi v. Booe to mean that a single bond large enough to cover both amounts perfects the appeal; the appellant in that case lost only because his bond fell $110 short of the costs. For appellants who file an affidavit of inability under Rule 572: they do not have to comply with a Rule 143a cost demand at all. Rule 572 exists precisely so that people who cannot pay the fees can still appeal, consistent with the Texas Constitution's command that the courts be open to everyone.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Note in particular that the Texas rules governing justice-court appeals have since been reorganized, and the specific rule numbers discussed below (143a, 571, 572, 573) reflect the procedure as it stood when the opinion issued in 1997. Confirm the current justice-court appeal rules before relying on any of these numbers.

Common questions

What was the practical dispute that led to this opinion?
The Dallas County Clerk treated each justice-court appeal as a new lawsuit and billed the appellant $155 in assorted court fees. The District Attorney wanted to know whether an appellant who had already secured the appeal with a bond, or sworn they could not afford to pay, still had to pay that separate bill to keep the appeal alive.

At the time, did posting an appeal bond by itself perfect the appeal?
Not automatically. The opinion concluded that a Rule 571 appeal bond satisfied the Rule 143a cost requirement only if the bond was large enough to cover the costs of appeal in addition to the underlying judgment. In Almahrabi v. Booe, the appellant's $10,000 bond covered the $5,000 judgment (doubled) but fell $110 short of the appeal costs, so the appeal was not perfected.

What happened if the appellant could not afford the costs?
The opinion concluded that an appellant who filed a Rule 572 affidavit of inability to pay was not required to comply with a Rule 143a cost demand to perfect the appeal. The whole point of Rule 572 was to let a person who could not pay or post security still appeal, which the opinion tied to the open-courts guarantee in article I, section 13 of the Texas Constitution.

Could the appellee challenge an affidavit of inability?
Yes. The opinion noted that under Rule 572 the appellee could contest the affidavit, and if the justice court denied the right to appeal based on the affidavit, the county judge would hear the matter.

Background and statutory framework

A justice-court judgment was appealed to the county court for a trial de novo (a complete retrial) under Rule 574b. To perfect that appeal, the older rules set up a two-step structure that the Almahrabi court summarized: first, file an appeal bond under Rule 571 (or an affidavit of inability under Rule 572); second, pay the county clerk the costs on appeal within twenty days of the clerk's notice, as Rule 143a required. Rule 573 deemed the appeal perfected once the bond or affidavit had been filed and the other requirements met.

Rule 571 set the size of the appeal bond at double the judgment, or, for a plaintiff whose claim had been denied, double the justice-court costs plus the estimated county-court costs. The bond ran to the appellee and was meant to secure the appellee against loss. The opinion drew an analogy, taken from Almahrabi, between a justice-court appeal bond and a supersedeas bond under appellate Rule 47(a): a supersedeas bond suspends execution of the judgment, and it can also serve as a cost bond if it is large enough to secure the costs. Reading the two together, the opinion concluded that a Rule 571 bond large enough to cover both the judgment and the appeal costs would satisfy Rule 143a.

Rule 572 addressed appellants who could not pay. By making strict proof of inability within five days of the judgment, such an appellant could appeal without posting security. The opinion grounded this in the open-courts provision of the Texas Constitution and the Texas Supreme Court's recognition in Griffin Industries that courts must be open to people with legitimate disputes, not just those who can afford the fees. A footnote added that Rule 145 (the affidavit of inability available to a party filing an original action) might also apply because justice-court appeals were docketed as original actions, but that an appellant who had already filed a Rule 572 affidavit did not also have to file one under Rule 145.

Citations

Statutes and rules:

• Tex. Const. art. I, § 13 (open courts)
• Tex. R. Civ. P. 143a (payment of costs on appeal from justice court)
• Tex. R. Civ. P. 145 (affidavit of inability to pay costs)
• Tex. R. Civ. P. 571 (appeal bond)
• Tex. R. Civ. P. 572 (affidavit of inability in lieu of bond)
• Tex. R. Civ. P. 573 (when appeal perfected)
• Tex. R. Civ. P. 574b (trial de novo)
• Tex. R. App. P. 40, 47(a), 48 (cost and supersedeas bonds)

Cases:

• Almahrabi v. Booe, 868 S.W.2d 8 (Tex. App.-El Paso 1993, no writ)
• Vickery v. Porche, 848 S.W.2d 855 (Tex. App.-Corpus Christi 1993, no writ)
• Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349 (Tex. 1996)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0449
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0449.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

August 29, 1997

The Honorable John Vance
Dallas County District Attorney
Administration Building
411 Elm Street
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 of rule 143a (RQ-934)

Dear Mr. Vance:

You tell us that in Dallas County, when a case is appealed from a justice court to a county court, the Dallas County Clerk's office processes the case as an original law suit and sends a notice directing the appellant to pay court fees totaling $155.00. Rule 143a of the Texas Rules of Civil Procedure deems an appeal from a justice court not perfected if the appellant fails to pay the court costs within twenty days after being notified to do so by the county clerk. If the 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 the justice court. You ask whether a party is excused from complying with rule 143a if the party posted an adequate appeal bond pursuant to rule 571 of the Texas Rules of Civil Procedure or filed an affidavit of inability pursuant to civil procedure rule 572.

Rule 571 requires the appellant from a justice court to file an appeal bond within ten days from the date the judgment 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 the justice, be made payable to the appellee, contain two or more good and sufficient sureties, and be conditioned that appellant shall prosecute the appeal to effect and pay off and satisfy any judgment which may be rendered against appellant on appeal. Id. The amount of the bond must be double the amount of the judgment; or, if the appeal is brought by a plaintiff whose claim was denied in whole or in part, the bond must be for double the amount of the costs incurred in the justice 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 is unable to pay the costs of appeal, or give security therefor, to file an affidavit of inability swearing to such facts. Tex. R. Civ. P. 572. Rule 573 deems an appeal from a justice court perfected when either an appeal bond or an affidavit of inability has been filed.

Your question regarding the effect of the filing of a rule 571 appeal bond is answered by Almahrabi v. Booe, 868 S.W.2d 8 (Tex. App.--El Paso 1993, no writ). In that case, a justice court entered a default 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. Almahrabi properly filed a $10,000 appeal bond in the justice court. Id. The El Paso County Clerk's office notified him that the costs of the appeal must be paid to the clerk's office within twenty days of the date of the notice or, in accordance with rule 143a, the appeal would be deemed not perfected. Id. Mr. Almahrabi failed to pay the costs to the county clerk within the requisite time, and the county court dismissed the appeal for lack of jurisdiction. 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 a justice court, an appellant must:

(1) file an appeal bond as required by Rule 571 or file an affidavit of inability to pay under Rule 572; and

(2) pay to the county clerk, within 20 days after being notified to do so by the county clerk, the costs on appeal as required by Rule 143a.

Compliance with each of the above requirements is jurisdictional, and as the language in Rule 573 indicates, only compliance therewith will act to perfect the appeal.

Id. at 10 (footnote omitted). Mr. Almahrabi argued that the $10,000 appeal bond satisfied rules 571 and 143a. The court disagreed. Rule 571 required appellant to file a bond in an amount double the judgment. The judgment against him was for $5,000, so his $10,000 bond covered the requirement of rule 571. The amount of the 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 Almahrabi court reasoned that the appeal bond required by rule 571 for justice court appeals is analogous to the supersedeas bond required by rule 47(a) of the Texas Rules of Appellate Procedure for appeals from county and district courts to courts of appeals. The purpose of the supersedeas bond is to suspend execution of the judgment 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 a court of appeals may also be required to file a cost bond, pursuant to appellate rule 40, for the purpose of securing the trial court and the appellate court of the 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 a cost bond if it is sufficient to secure the costs. Tex. R. App. P. 47(a). Analogizing the rule 571 appeal bond to a supersedeas bond, the Almahrabi court ruled that Mr. Almahrabi's appeal bond did not satisfy the county court's request for costs because the amount of the bond was not in an amount sufficient to secure the costs.

We construe the Almahrabi court's ruling to mean that if the 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 a justice court who files an adequate appeal bond pursuant to rule 571 complies with rule 143a if the bond is in an amount sufficient to cover the costs of appeal.

You advocate construing Almahrabi to require an appellant to comply with rule 143a separately from rule 571. "Nothing in Rule 571," you say, "appears to provide any protection for the County Clerk." The appeal bond required by rule 571 must 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 to proceed. You would require an appellant to comply with rule 143a even when the appellant is a plaintiff whose claim was denied in whole or in part, in which case rule 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 the Almahrabi decision may be construed in that way. Although the court stated that an appellant must comply with both rules 143a and 571, the court, analogizing a justice court appeal bond to a supersedeas bond, stated that a supersedeas bond may serve as a cost bond if it is sufficient to secure the costs. The court upheld the dismissal of Mr. Almahrabi's appeal on the grounds that the amount of the bond was insufficient. "Appellant is $110 short," the court said. Almahrabi, 868 S.W.2d at 10. We can only assume that if Mr. Almahrabi's bond had been in the amount of $10,110, the court would have ruled that his appeal was perfected.

We turn now to your question regarding the effect of the filing of an affidavit of inability pursuant to rule 572. Rule 572 provides: "Where appellant is unable to pay the costs of appeal, or give security therefor, he shall nevertheless be entitled to appeal by making strict proof of such inability within five days after the judgment or order overruling motion for new trial is signed . . . ." Tex. R. Civ. P. 572. The affidavit of inability may be contested by the appellee and, if the justice 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 in the Texas Constitution that courts must be open to all persons with legitimate disputes, not just those who can afford to pay the fees to get in. See Tex. Const. art. I, § 13 ("All courts shall be open and every person for an injury done him . . . shall have remedy by due course of law."); Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 353 (Tex. 1996). The rule was intended to allow a person unable to pay costs or to give security therefor to perfect an appeal. An appellant from a justice court who files an affidavit of inability pursuant to rule 572 is not required to comply with a request for payment of costs made pursuant to rule 143a in order to perfect an appeal.

[Footnote: Rule 145 of the Texas Rules of Civil Procedure, which allows a party filing 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 tried de novo. We do not believe that the rules require an appellant to file a rule 145 affidavit if an affidavit has already been filed pursuant to rule 572.]

SUMMARY

An appellant from a justice court who files an appeal bond in compliance with rule 571 of the Texas Rules of Civil Procedure also complies with rule 143a of the rules if the bond is in an amount sufficient to cover the costs of appeal. An appellant from a justice court who files an affidavit of inability pursuant to rule 572 is not required to comply with a request for payment of costs made pursuant to rule 143a in 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