The Houston (First) Court of Appeals recently issued an interesting opinion regarding perfection of an appeal from a small claims court to a county court at law.  The appellant failed to timely file an appeal bond within ten days of the judgment pursuant to to TRCP 571.  Instead, the appellant "deposited $5,000 in cash . . . in lieu of a justice court appeal bond."  The small claims judgment was not in the record, but the judgment was entered on April 12, 2007 at the latest because the appellant attempted to appeal the judgment on that date.  The deposit, however, was not made until May 4, some 22 days later.  Thus, appellant’s attempt to perfect the appeal was late regardless of whether the appellant filed a bond or made a deposit.

The court of appeals continued and also stated:

Even if [appellant] had timely filed its cash bond in the justice court, instead of untimely filing it in the county court, when a deposit of cash has not been authorized by statute, such a deposit does not constitute sufficient compliance with the statute that requires a bond to be given.

The court cited two cases, one from 1929 and one from 1952, in support of the proposition that Rule 571 does not authorize the fiing of a cash bond in lieu of a surety bond.  In fact, one case was quoted as holding "we have found no Rule so providing."

That’s because the rule didn’t exist yet.  Rule 14c was adopted in 1981 and expressly allows any surety bond required by the rules to be satisfied by a cash deposit.  Appellant’s appeal in this case could not benefit from the rule because it seems that the attempted deposit was late.  But to the extent the court’s holding regarding the deposit was an alternative holding, as opposed to mere dicta, it is contrary to TRCP 14c.  The court’s opinion in Gundogan v. Woodgrove Condo. Ass’n can be found at this link.