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Rule 751. Transcript (1988)
When an appeal has been perfected, the justice shall stay all further proceedings on the judgment, and immediately make out a transcript of all the entries made on his docket of the proceedings had in the case; and he shall immediately file the same, together with the original papers and any money in the court registry, with the clerk of the county court of the county in which the trial was had, or other court having jurisdiction of such appeal. The clerk shall docket the cause, and the trial shall be de novo.
The clerk shall immediately notify both appellant and the adverse party of the date of receipt of the transcript and the docket number of the cause. Such notice shall advise the defendant of the necessity for filing a written answer in the county court when the defendant has pleaded orally in the justice court.
The trial, as well as all hearings and motions, shall be entitled to precedence in the county court.
Amended by order of July 15, 1987, eff. Jan. 1, 1988.
Comment. This amendment provides due process to pro se defendants by advising them of the necessity of filing a written answer in the county court if they did not file one in the justice court.
|Prior Amendments||Future Amendments|
|Oct. 29, 1940, eff. Sept. 1, 1941||April 24, 1990, eff. Sept. 1, 1990|
|May 9, 1977, eff. Sept. 1, 1977|
Question: In case of appeal from justice to county court, in an action of forcible entry and detainer may the matter be tried promptly in the county court, if then in session, or may it be properly delayed until the opening of a new term in the latter court in accordance with the usual practice under R. S. Art. 3989?
Answer: Art. 3989 allowing delay in such a matter until the opening of the next term of court, or even later, has been superseded by Rule 751 which drops such avenue of delay and requires the justice to transfer the cause, in case of appeal, within not less than six days and the county court to give the cause precedence. It follows that the justice must effect the transfer promptly and that, if in session when the matter arrives there, the county court must give a trial as promptly as may be practicable, without regard, in either instance, to the opening of a new term.
5 Tex. B.J. 53 (1942) reprinted in 8 Tex. B.J. 7 (1945).
(No. 21) Question: In view of Rules 751 and 753, may a defendant be forced to trial or a default judgment he taken against him, in the instance of an appeal in a forcible entry and detainer proceeding, before appearance day in the county court?
Answer: There is an apparent inconsistency between Rules 751 and 753. Rule 751, in case of appeal, requires the justice of the peace to file the transcript and the papers in the court having jurisdiction of the appeal "within six days from the date of filing the appeal bond," and continues, "The clerk shall docket the cause, and the trial shall be de novo, and shall be entitled to precedence in the county court." On the other hand, Rule 753 reads: "If defendant fails to enter an appearance upon the docket of the ... county court on appearance day or file answer, before the case is called for trial, the allegations of the complaint may be taken as admitted, and judgment by default may be entered accordingly.”
In our opinion, while the case may be tried in the county court, by consent of the parties, upon its being filed in the county court on appeal during term time, on the other hand, a trial may not be forced or a default judgment taken until appearance day of the term next ensuing after the date the case is so filed in the county court.
5 Tex. B.J. 168 (1942) reprinted in 8 Tex. B.J. 13 (1945).
(No. 40) Question: Should the County Court dismiss an appeal in a forcible entry and detainer suit if the transcript and papers are not filed in the County Court within six days from the date of the filing of the appeal bond as required by Rule 751?
Answer: Rule 751 shortened the time for filing the record in the County Court in order to expedite the disposition of cases of this type. If the transcript and papers are not filed within the specified time the same procedure would now apply as to the dismissal of the case in the County Court as heretofore applied under the statute where the transcript was not filed within the time required by the statute.
Texas Jurisprudence, Volume 26; pages 939-940, states the general rule upon this subject as follows:
"The failure of the justice to file the transcript within the time allowed is not of itself ground for dismissal of the appeal. But after that time has elapsed, the appellant is charged with responsibility for any delay in taking steps to compel the justice to perform his duty, and the appeal may be dismissed in the absence of a prompt application to compel the justice so to perform. Delay in applying may be excused by the circumstances, but promises by the justice, repeated from time to time but unfulfilled, do not excuse a long delay.
"The conduct of both the appellant and appellee on the justice's default is taken into account on a motion to dismiss, and all authorities are agreed that the right to move for dismissal may be waived."
5 Tex. B.J. 171 (1942) reprinted in 8 Tex. B.J. 16 (1945).
(No. 84) Question: Does Rule 751 respecting forcible entry and detainer allow the case to be heard on appeal before the regular term time of the court; and what is the meaning of the words, in that Rule, "shall be entitled to precedence in the county court?"
Answer: The first part of the question seems to be answered by the answer to question No. 21 in 5 Tex. B.J. 168. In our opinion the meaning of the wording, above quoted, concerning precedence, is that among the cases to be disposed of on the docket of the county court, this sort of a case will have especial preference over other sorts in connection with the order of disposition. It is the desire of Rule 751 to accelerate the proceedings as much as possible. You will notice, in that respect, that under Article 3989 the justice could make his filing in the county court "on or before the first day of the first term of said court, or, if there be insufficient time, on or before the first day of the next succeeding term thereof." The quoted words have been dropped from Rule 751, thus imposing upon the justice the duty of promptness.
6 Tex. B.J. 76 (1943) reprinted in 8 Tex. B.J. 32 (1945).
(No. 103) Question: “Rule 751, one of the special rules for forcible detainer cases, does not set any appearance day but gives the case precedence on the County Court docket. Does not Rule 571 make appearance day as to such cases the first day of the next term of county court in the event of appeal from the justice of the county court?
Answer: Yes. See opinions of this subcommittee, 5 Tex. B.J. 53 (3 rd opinion) and 168 (No. 21) We beg, however, to call to your attention the fact that this rule is reversed by the amendment to Rule 753 which will come into effect at the end of the present year (1943). That amendment reads, "Said cause shall be subject to trial at any time after the expiration of five full days after the day the transcript is filed in the county court, and if defendant shall fail to enter his appearance therein before the case is called for trial, the allegations of the complainant may be taken as admitted, and judgment by default may be entered accordingly."
6 Tex. B.J. 500 (1943) reprinted in 8 Tex. B.J. 37 (1945).
(No. 108) Question: What is the effect of that portion of Rule 751 providing that forcible entry and detainer suits which have been appealed to the county court "shall be entitled to precedence in the County Court ?"
Answer: This matter was touched upon but not dealt with fully in sub-committee opinion No. 84 appearing in 6 Tex. B.J. 76. It is the opinion of the sub-committee that every court necessarily and inherently has some discretion in the arrangement of its docket and the setting of cases for trial. The Statutes and Rules giving "precedence" to certain types of cases do not mean that the court can transact no other business until all such cases pending on the docket are disposed of. Such Statutes and Rules should be given a reasonable construction and a construction calculated to attain justice (Rule 1); and therefore where the application of the exact wording in regard to giving certain cases precedence would result in injustice, it is within the discretion of the court to relax the requirements sufficiently to avoid such injustice.
6 Tex. B.J. 550 (1943) reprinted in 8 Tex. B.J. 38 (1945).