Opinion
No. 10-04-00042-CV
Order Issued and Filed May 18, 2005.
Appeal from the 220th District Court, Bosque County, Texas, Trial Court # 02-10-33702-Bccv.
Motion dismissed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice GRAY dissents with a note)
ORDER
Appellants Dwain Fagan, Sr. and Rose Lee Fagan filed a second motion for rehearing. The appellate rules authorize a second or subsequent motion for rehearing only if the court of appeals alters in any way its judgment or opinion in conjunction with the overruling of a previous motion. Tex.R.App.P. 49.5; Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992); Mapco, Inc. v. Forrest, 795 S.W.2d 700, 702 (Tex. 1990). In overruling Appellants' previous motion for rehearing, this Court did not alter its judgment or opinion. A second motion for rehearing not authorized by the rules is a nullity. Mapco, 795 S.W.2d at 702. The second motion for rehearing is dismissed.
Dissenting Note: To clarify the procedural posture of this appeal and set with certainty the time for filing a petition for review, I would use the court's plenary power to withdraw the opinion and judgment issued February 23, 2005, the dissenting opinion of Chief Justice Gray issued April 13, 2005 and reissue them together.