Thomas BRENAN et al., Relators, v. COURT OF CIVIL APPEALS, FOURTEENTH DISTRICT et al., Respondents, 444 S.W.2d 290

GRIFFIN, Justice. This is an original petition for writ of mandamus filed in this Court by Thomas Brenan, Court Reporter for the Juvenile Court of Harris County, Texas, and William Ray Hardy, District Clerk of Harris County, Texas, as relators, against Johnny Hernandez, a delinquent minor, his parents, Manuel Hernandez and Mary Hernandez, and the three judges of the 14th Court of Civil Appeals at Houston, Texas, as respondents.

The background of this case is as follows : On November 21, 1967, Johnny Hernandez, a minor, was adjudged a juvenile delinquent by the Juvenile Court of Harris County, Texas, and he was committed to the custody of the Texas Youth Council, which sent him to its Gatesville institution for rehabilitation and training of such juvenile delinquents. Johnny was represented by Houston Legal Foundation counsel, and his father and mother were present at the hearing. Notice of appeal was timely filed.

On December 4, 1967, counsel for the Hernandez family filed an affidavit of inability to pay court costs, as provided by Rule 355, Texas Rules of Civil Procedure. On December 27, 1967, William Ray Hardy, the Clerk of the District Courts of Harris County, Texas, filed his contest to the Hernandez affidavit, and on January 2, 1968, Thomas Brenan, the court reporter, filed his contest to such pauper’s affidavit. The pauper’s affidavit and contest were heard January 10, 1968, and the trial court sustained the contest of the pauper’s affidavit.

The Hernandez parents, as next friends of Johnny, filed an original application for writ of mandamus in the 14th Court of Civil Appeals at Houston, Texas, against Ray Hardy, as district clerk, Thomas Bren-an, the official court reporter, and Robert Lowry, Judge of the Juvenile Court. The Court of Civil Appeals on March 6, 1968, m a per curiam opinion, Hernandez v. Hardy, 426 S.W.2d 258, granted the mandamus against Hardy and Brenan only, but refused the mandamus against Judge Lowry. The court said: “We are of the opinion that Lee v.

McKay, Tex.Civ.App., 414 S.W.2d 956, writ of error dismissed, and In re Brown, Tex.Civ.App., 201 S.W.2d 844, error refused, n. r. e., are controlling in this matter and that the parents of the delinquent minor are entitled, as a matter of law, to perfect their appeal and to be furnished with a transcript and statement of facts in connection therewith without paying the costs thereof.” Brenan and Hardy thereafter filed in this Court their original application for writ of mandamus against the Hernandez family and the judges of the 14th Court of Civil Appeals, asking that we order the Court of Civil Appeals to rescind its order of March 6, 1968.

This is not an appeal either from the trial court’s order sustaining the contest to the pauper’s affidavit and denying right of appeal by the Hernandez’ upon a pauper’s oath or from the Court of Civil Appeals order of March 6, 1968, granting the writ of mandamus. The case before us is an original mandamus proceeding.

Therefore, the question before this Court is correctly stated by respondents in their reply brief and is: “Thus, this case presents to this Court the crucial issue of whether a juvenile, as a matter of law, has a right to appeal from a decision of delinquency without payment of costs.” Rule 354, Texas Rules of Civil Procedure, requires that the appellant shall execute a bond or make a cash deposit with the clerk in lieu of a bond. Rule 355 provides that when the appellant is unable to pay the costs of appeal or give security therefor, he may prosecute his appeal by filing his affidavit stating such fact.

This rule also provides for contest of the affidavit on the part of certain officers of the court or a party to the suit and for a hearing on such contest. The only parties exempt from making bond other than paupers are those set out in the statutes of this State.

Art. 2276, Vernon’s Ann.Civ.St, pertinent to this cause, reads as follows: “Executors, administrators and guardians appointed by the courts of this State shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity.” This statute contains no exemption in favor of “next friends” of a minor nor of a minor himself. Relators contend that the Hernandez father and mother appear herein as next friend of their minor son, Johnny Hernandez, and therefore Rule 44, Texas Rules of Civil Procedure, requires that they give security for costs or affidavit in lieu thereof.

Rule 44, by its wording and court construction, applies only to situations where the minor is a plaintiff. Johnny Hernandez was a defendant in the juvenile delinquency hearing, and therefore Rule 44 has no application to this case. Lee v. McKay (Tex.Civ.App., 1967), 414 S.W.2d 956, 957, writ dismissed, w. o. j. Only “guardians appointed by the courts of this State” are exempt from giving bond on an appeal taken by them in their fiduciary capacity. Art. 2276. So far as this record shows, the Hernandez parents were, and are, not guardians appointed by any court of this State.

Respondents rely upon the case of In re Brown (Tex.Civ.App., 1947), 201 S.W.2d 844, writ refused, n. r. e., as authority that a minor who has been adjudged a juvenile delinquent can appeal from this adjudication merely by giving notice, and is not required to file an appeal bond or a pauper’s affidavit. The Court of Civil Appeals in that opinion reasoned that such appeals were governed by Sec. 21 of Art. 2338-1, Vernon’s Civil Statutes.

The reasoning of the court is set forth in the following quotation from that opinion : “ * * * The Act itself gives any party interested the right of appeal and makes no provision for an appeal bond or affidavit in lieu thereof, but says the Act shall be liberally construed.

Considering the Act in its entirety and the purpose for which it was enacted, we do not believe that it was the intention of the legislature that a bond or affidavit in lieu thereof should be required as a prerequisite to his right of appeal. * * ” The Act in Sec. 21 specifically provides that an appeal may be taken “as in other civil cases.” It is well settled that proceedings instituted under the Juvenile Act are governed, as far as practicable, by the rules relating to civil procedure and are civil in nature. Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 274, 275 (1944), 151 A.L.R. 1217; Steed v.

State, 143 Tex. 82, 183 S.W.2d 458 (1944). The Rules of Civil Procedure nowhere exempt parents, next friends, or minors from the requirement of giving an appeal bond or a pauper’s affidavit in lieu thereof in addition to the notice of appeal. Therefore, no appeal may be perfected by a minor, etc., without complying with Rules 354, 355, Texas Rules of Civil Procedure. Respondents also rely on the case of Lee v.

McKay (Tex.Civ.App., 1967), 414 S.W.2d 956, writ dismissed, w. o. j., which squarely supports their contention that a minor or his next friend may appeal by giving notice of appeal only and is not required to file an appeal bond or pauper’s affidavit. The authority relied upon in McKay for such holding was In re Brown, supra. We have pointed out above the error of the reasoning in the Brown case. In Brown, as far as the record shows, there was no next friend or guardian ad litem representing the juvenile, although he was represented on appeal by an attorney.

The San Antonio court in McKay also relied on the case of In re Gonzalez (Tex.Civ.App., 1959), 328 S.W.2d 475, writ refused, n. r. e. Gonzalez held that the appointment of a guardian ad litem to represent a juvenile was not necessary when his parents were present in court during the trial. This was an appeal from the judgment of the trial court, and no question as to the validity of the appeal was raised by any of the parties nor decided by the court. Gonzalez held that it was not necessary for the court to appoint a guardian ad litem for a juvenile delinquent defendant when his parents were present at the trial.

Gonzalez did not hold that the parents or the juvenile delinquent were entitled to appeal without an appeal bond or an affidavit of inability to pay costs. No such question was before the court for its decision. The San Antonio court in McKay reasoned that in view of the Gonzalez holding, it must follow that the parents of a minor, appearing as next friends for the minor, should have all the rights of a guardian ad litem and can appeal by only giving notice of appeal. Such holding is contrary to the provisions of Rules 44, 354, 355, and Art. 2276, Vernon’s Ann.Civ.St.

In re Gonzalez did not involve the rights of appeal from an adjudication of a minor as a juvenile delinquent, but had to do with Rule 173 and the necessity to appoint a guardian ad litem to represent the minor. The holding in that case is in no wise relevant to the issue before us, nor before the San Antonio Court of Civil Appeals. The cases of In re Brown, supra, and Lee v. McKay, supra, are disapproved in so far as their holding is in conflict with this opinion.

Rule 173, Texas Rules of Civil Procedure, provides in part: “When a minor * * * may be a defendant to a suit * * the court shall appoint a guardian ad litem for such person * * This rule has application to a juvenile delinquency proceeding where a minor is a defendant. However, no complaint is made in this mandamus proceeding of the failure of the trial court to appoint a guardian ad litem to represent Johnny Hernandez and no request made that we order such appointment. This question is not before us in this proceeding. See Newman v. King, Tex., 433 S.W.2d 420.

It follows from our holdings above that the relators are entitled to their writ of mandamus as prayed for. We are sure the 14th Court of Civil Appeals will abide the result of this cause, and in accordance with our usual custom, the clerk will not issue the writ of mandamus at this time but only in the event the 14th Court of Civil Appeals should fail to take the action required by this decision.