IN THE

TENTH COURT OF APPEALS

No. 10-01-112-CV

     RUSSELL EUGENE GALER, II,

                                                                              Appellant

     v.

     WARDEN TERRY,

                                                                              Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 01-069-B

MEMORANDUM OPINION ON REHEARING

      Russell Eugene Galer filed what has been construed as a notice of appeal from an order dismissing his cause of action as frivolous under Chapter Fourteen of the Texas Civil Practice and Remedies Code. The clerk’s record was filed in April of 2001. The time for filing Galer’s brief passed, and we notified him that this case would be dismissed for want of prosecution unless he filed a brief or otherwise showed grounds to continue the appeal. Tex. R. App. P. 38.8(a)(1). We did not receive a timely response.

      On October 31, 2001, we dismissed Galer’s appeal for want of prosecution. Id. We stated that we had received no communication from Galer. This statement was not accurate. On October 8, 2001, we received Galer’s brief entitled “CIVIL ACTION BROUGHT SUBSEQUENT TO CHAPTER 14. TEXAS CIVIL PRACTICE AND REMEDIES CODE. LAWSUITS BY PRISONERS” and another document with a caption “step 2 Grievance.” We have now received a motion for rehearing of our opinion dismissing this appeal. Galer’s motion for rehearing is granted and our October 31, 2001, opinion dismissing this appeal for want of prosecution is hereby withdrawn.

      The ordinary briefing schedule is applicable, provided however, that the date of this opinion shall be considered the date of filing of the appellant’s brief.

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Opinion dismissing case withdrawn

Opinion delivered and filed December 12, 2001

Do not publish

[CV06]