RELATORS

RESPONDENT

PER CURIAM

Relators William H. McFarland and Lucille McFarland have a filed a motion for leave to file a petition for writ of mandamus and tendered a petition to this Court. See Tex. Gov't Code Ann. § 22.221(a), (b) (West 1988); Tex. R. App. P. 121. The McFarlands request this Court to order respondent, the Honorable Dana DeBeauvoir, County Clerk of Travis County, Texas, to prepare a transcript in the appeal underlying this original proceeding for filing with the Clerk of this Court. We will dismiss the motion for leave to file as moot.

The McFarlands perfected the underlying appeal from the probate court of Travis County when they tendered their cost bond on appeal to the county clerk of Travis County on June 9, 1992. Tex. R. App. P. 4(b), 41(a); see McFarland v. Heath, No. 3-92-315-CV (Tex. App.--Austin Sept. 16, 1992) (not designated for publication). The county clerk returned the cost bond because the McFarlands had not enclosed a filing fee. See Tex. Loc. Gov't Code Ann. § 118.052(2)(B) (West Supp. 1993). The McFarlands again tendered the cost bond with the filing fee as requested.

On June 29, 1992, the county clerk responded, "We are returning the enclosed document(s) because we have not received the necessary . . . fee of $1000.00***." The explanatory note states, "*** The Probate Court normally requires the Cost Bond on Appeal to be in the form of a Cashiers or Firm Check." The clerk did not indicate that the McFarlands' sureties were insufficient or that the cost bond was deficient for any other reason. See Tex. R. App. P. 46(a).

Subsequently, the McFarlands filed their motion for leave to file petition for writ of mandamus in this Court. The McFarlands assumed that the county clerk would prepare the transcript on the basis of our opinion of September 16, 1992, although the county clerk had not yet filed their cost bond on appeal. In our opinion, this Court determined that the McFarlands timely perfected an appeal when their cost bond was first "in custody or control of the clerk." McFarland, slip op. at 2-3; see Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 372 (Tex. 1990). To resolve the stalemate, this Court requested the McFarlands again to tender a cost bond on appeal to the county clerk of Travis County. The clerk accepted the cost bond December 7, 1992, and delivered the transcript on January 6, 1993.

For the reasons stated, we dismiss the McFarlands' motion for leave to file petition for writ of mandamus as moot and tax the cost of this proceeding against respondent Dana DeBeauvoir, County Clerk of Travis County, Texas. We decline to award the McFarlands their attorney's fees as requested in the motion and petition for writ of mandamus.

[Before Chief Justice Carroll, Justices Jones and Kidd]

Motion for Leave to File Petition for Writ of Mandamus Dismissed

Filed: January 20, 1993

[Do Not Publish]