TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00708-CV

Saeed Khan, Appellant

v.

The State of Texas; The City of Houston, Texas; and the Transit Authority

of Houston, Texas, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

NO. D-1-GV-06-002172, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

This Court issued a memorandum opinion and judgment on May 5, 2010, dismissing this appeal for want of prosecution. Appellant has filed a motion for rehearing on the grounds that (i) he did not receive the March 26, 2010, letter from the Clerk of this Court that advised him that his brief was overdue and that the failure to respond by April 5, 2010, would result in the appeal being dismissed for want of prosecution, and (ii) the court reporter did not receive the letter from his attorney dated January 8, 2010, requesting a copy of the reporter's record, or the money order sent with the letter. A replacement check and letter were sent to the court reporter contemporaneously with the filing of appellant's motion for rehearing.

Appellees filed a response to the motion for rehearing. They contend that appellant's motion for rehearing should be denied because this Court did not abuse its discretion by dismissing the appeal for want of prosecution. See Tex. R. App. P 42.3(b) ("[A]ppellate court may dismiss the appeal . . . for want of prosecution."). Appellees focus on appellant's failure to file a brief, appellant's delay in requesting the preparation of the reporter's record, and information that was available to appellant on this Court's website. See Tex. R. App. P. 38.8(a). Appellees, however, do not contest that appellant did not receive the March 26, 2010, letter from the Clerk of this Court or that the court reporter did not receive the initial letter from appellant's attorney with the money order for the preparation of the reporter's record. Further, appellees do not contend that they have been injured by appellant's failure to timely file a brief. See id. In these circumstances, we decline to exercise our discretion to dismiss the appeal.

We, therefore, grant appellant's motion for rehearing. We withdraw our opinion and judgment dated May 5, 2010, and reinstate the appeal.

__________________________________________

Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Filed: June 30, 2010