Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

By opinion dated September 29, 2005, this Court dismissed Chester Wayne Sullivan's appeal due to counsel's failure to certify compliance with Rule 35.3(a)(2) of the Texas Rules of Appellate Procedure regarding whether arrangements had been made to pay for the clerk's record, which had yet to be filed. By motion for rehearing, Sullivan contends that when his counsel's office received this Court's notice requesting certification, he was directed to pay for the record and did so. The clerk's record was filed on October 13, 2005. We grant Sullivan's motion for rehearing and withdraw our opinion and judgment of September 29, 2005, and, in lieu thereof, issue the following opinion.

By letter dated August 29, 2005, counsel was directed to certify he had made arrangements to pay for the clerk's record by September 19, 2005, indicating that failure to do so would result in dismissal of Sullivan's appeal. By the motion for rehearing, counsel has demonstrated that due to a medical condition, which required admission to the hospital, and an oversight by his staff, he was unaware of the directive for certification until he returned to his office on October 7, 2005, and discovered the appeal had been dismissed.

Accordingly, Chester Wayne Sullivan's motion for rehearing is granted and the appeal is reinstated. Both the clerk's record and reporter's record have now been filed. Chester Wayne Sullivan's brief is due on or before Monday, November 28, 2005.

Don H. Reavis

Justice

nd appellee had ample time to supplement its brief before oral argument if necessary. Appellee does not contend that appellant has raised issues to which it has not had opportunity to respond. Appellant also expresses concern over the potential delay in disposition of the case.

Concluding that appellee has failed to present a basis for concluding that justice requires supplementation of its brief, we must deny appellee's motion.

Per Curiam