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Rule 142. Security for Costs (Mar1941)

TEXT

The clerk may require from the plaintiff security for costs before issuing any process, but shall file the petition and enter the same on the docket. No attorney or other officer of the court shall be surety in any cause pending in the court, except under special leave of court.

Amended by order of March 31, 1941, eff. Sept. 1, 1941: The second sentence is added, and its source is Texas Rule 50 (for District and County Courts).

ADVISORY OPINIONS

(No. 92) Question: Does Rule 142 prohibit an attorney from acting as surety in a case pending in the justice court?

Answer: We consider that the answer to this question should be in the affirmative, if the case supposed is one where the court has not given leave that the attorney act as surety. Rule 142 permits the clerk of the district or county court to require security for costs and adds that "No attorney or other officer of the court shall be surety in any cause pending in the court, except under special leave of the court." That this rule in its entirety is applicable as well to the justice court would seem clearly to follow from Rule 523 which reads that "All rules governing the district and county courts shall also govern the justice courts, insofar as they can be applied, except where otherwise specifically provided by law or these rules." Of course, the requiring of security for costs and the prohibition against attorneys as sureties can be as well applied in the justice court as in the district or county court, and, so far as we can ascertain, there is no contrary specific provision of the law or the rules. As you will see, Rule 523 is in broader language than R. S. Articles 2381 and 2410, which the rule replaces. These former articles applied to justice courts and made the law respecting security for costs, procedure, and other subjects specifically specified in the article applicable in the justice courts if prescribed for the district and county courts. The intention to embrace the matter respecting security for costs seems to be emphasized by this history of Rule 523 and its broad words, "All rules governing the district and county courts." We consider, however, that, as was held under old Rule 50 which Rule 142 embraces with like wording, if an attorney acts as surety without leave of court, while the attorney is in the wrong, that fact does not avoid his liability upon the bond or the validity of the bond itself. Kohn v. Washer & August, 69 Tex. 67, 6 S.W. 551 (1887).

6 Tex. B.J. 107 (1943) reprinted in 8 Tex. B.J. 34 (1945).