Opinion
No. 1935.
October 15, 1936.
Original application for writ of mandamus by the State against Tom Hickey and others.
Writ issued as prayed.
William McCraw, Atty. Gen., and Sam Lane, Asst. Atty. Gen., for the State.
The state of Texas has filed in this court an original application to require Tom Hickey, as clerk of the district court of Hill county, to prepare and deliver to its counsel a transcript of the proceedings in the case of the State of Texas, appellant, against H. C. Brannan et ux., appellees, on file in said court. The petition declares that final judgment was rendered in the trial court against the state and an appeal perfected by giving notice of appeal and that the clerk of said court refused to make up and deliver a transcript of the proceedings unless and until the costs in the lower court, including the clerk's fees for such transcript, are paid.
It has been held that an appellant who has perfected an appeal by giving an appeal bond has a right upon request to have a transcript of the proceedings delivered to him by the clerk without the payment of his fees therefor. 3 Tex.Jur. 690; _____ v. Costley, 7 Tex. 460; Maxfield v. Pure Oil Co. (Tex. Civ. App.) 74 S.W.2d 145; Taylor v. Gardner (Tex. Civ. App.) 99 S.W. 411. Since, under the provisions of Revised Statutes, art. 2276, the state is allowed to appeal without giving an appeal bond, it would seem that the state should have all of the rights on appeal without giving an appeal bond that is accorded an ordinary appellant who has given an appeal bond. Consequently, the state as an appellant is entitled to have a transcript of the proceedings without the necessity of paying the costs thereof in advance.
The writ of mandamus will issue as prayed.