Opinion
No. 07-04-0556-CV
January 4, 2005.
Appeal from the 31st District Court of Roberts County, No. 1828, Honorable Steven R. Emmert, Judge.
Panel D: Before QUINN and REAVIS and CAMPBELL, JJ.
ON MOTION FOR REHEARING
By opinion and judgment dated December 17, 2004, we dismissed this appeal for want of prosecution because appellants failed to pay the filing fee and file the docketing statement. Lister v. Lee-Swofford Invs., L.L.P., No. 07-04-0556-CV, 2004 WL 2937301 (Tex.App.-Amarillo, Dec. 17, 2004, no pet. h.); Tex.R.App.P. 42.3. On December 23, 2004, appellants filed a motion to reinstate, which we construe as a motion for rehearing. Tex.R.App.P. 49.1. A docketing statement was filed on December 27, and the filing fee was paid on December 28. Appellee has filed a response objecting to reinstatement of the appeal. Appellants' motion states the failure to file the docketing statement and pay the filing fee was the result of mistake. See Tex.R.App.P. 10.2(c). In the interests of justice, we grant appellants' motion. Our December 17 opinion is withdrawn and our judgment of the same date is vacated. The appeal is reinstated on the Court's docket. On or before January 14, 2005, appellants' counsel shall certify in writing to the clerk of this Court that appellants have met the requirements of Rule of Appellate Procedure 35.3(a)(2) and, if a reporter's record is to be filed, Rules of Appellate Procedure 35.3(b)(2) and (b)(3). Failure to provide the certification may result in dismissal of the appeal without further notice from the Court. Tex.R.App.P. 42.3(b), (c). The clerk's record, and any reporter's record, shall be filed on or before February 7, 2005, and the parties' briefs shall be due in accordance with Rule of Appellate Procedure 38.6.