                                                                                               ACCEPTED
                                                                                          03-13-00590-CV
                                                                                                 4501493
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                    3/13/2015 11:40:39 PM
                                                                                        JEFFREY D. KYLE
                                                                                                   CLERK
                                No. 03-13-00590-CV

                        In the Court of Appeals              March 16, 2015
                                 for the
                 Third Court of Appeals District of Texas
                        Sitting at Austin, Texas
______________________________________________________________________

                    Lance Richards and all other occupants of
               12306 Bainbridge Lane, Austin, TX 78750, Appellant

                                         vs.

   US Bank National Association, as Trustee for Credit Suisse First Boston
        Mortgage Securities Corp., Home Equity Asset Trust 2003-7,
      Home Equity Pass-Through Certificates, Series 2003-7, Appellee
_______________________________________________________________________

                  Appealed from the County Court at Law No. 4
                         of Williamson County, Texas
                   The Honorable John McMaster, Presiding

________________________________________________________________________

                  MOTION FOR RECONSIDERATION
________________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

       Appellant, Lance Richards, respectfully submits this Motion for Rehearing under

Texas Rule of Appellate Procedure 49.1 and any other applicable law.

                                          I.

       On the 11th day of February, 2015, this Court’s panel upheld the judgment of


MOTION FOR REHEARING
the trial court in a memorandum opinion signed on behalf of the Court by Chief Justice

Rose (the “Opinion”).

                                                 II.

       This Court erred in overruling Appellant’s Points of Error, because at neither

the trial court level nor the county court at law did Appellee’s pleadings provide for

any award of attorney’s fees. Further, the Appellee’s Notice to Vacate1 is only a three-day

notice, which by the terms of the applicable statute cannot support a claim for attorney

fees–not at trial, and not prospectively on appeal, whether or not there might be conduct

construed as trial by consent:

       Sec. 24.006. ATTORNEY'S FEES AND COSTS OF SUIT. (a) Except
       as provided by Subsection (b), to be eligible to recover attorney's fees
       in an eviction suit, a landlord must give a tenant who is unlawfully retaining
       possession of the landlord's premises a written demand to vacate the
       premises. The demand must state that if the tenant does not vacate the
       premises before the 11th day after the date of receipt of the notice and
       if the landlord files suit, the landlord may recover attorney's fees. The
       demand must be sent by registered mail or by certified mail, return receipt
       requested, at least 10 days before the date the suit is filed.

       The record does not contain proof of a notice sufficient to satisfy the plain language

of the statute. Therefore, the award of prospective attorney’s fees should be reversed.

As this Court noted, Appellant’s counsel did in fact object to the award at trial, though



       1
           Inter alia, County Clerk’s Official Record, page 61.

MOTION FOR REHEARING
                                                  2
not with great elaboration.

                                       Conclusion

       Rehearing of this case, by the panel or en banc, and vacating of the February

11, 2015 memorandum opinion and judgment, would be consistent with the apparent

purpose of the applicable statute in the Property Code and the civil rules and any herein

cited or briefing-cited rulings of Texas courts. In the interest of justice in this matter,

Appellant asks that the Court grant this motion for rehearing.


                                                 Respectfully submitted,


                                                 /s/ Michael Brinkley
                                                 ____________________________________
                                                 Michael Brinkley
                                                 State Bar No. 03004300
                                                 BRINKLEY LAW PLLC
                                                 P. O. Box 820711
                                                 Fort Worth, Texas 76182-0711
                                                 (817) 284-3535
                                                 (888) 511-5854; fax (888) 511-0946
                                                 michael@brinkleypllc.com
                                                 Attorney for Appellant




MOTION FOR REHEARING
                                            3
                  Certificate of Compliance for T.R.A.P. 9.4(i)(3)

       I certify that the word count indicated by my word processing software for the
portions of the Appellants’ Motion for Rehearing covered by Texas Rule of Appellate
Procedure 9.4(i)(1) is 372, which, when added to the 1,430 words in Appellant’s brief,
totals 1,802 words.

Dated: March 13, 2015.

                                              /s/ Michael Brinkley
                                              _____________________________________
                                              Michael Brinkley




                               Certificate of Service

      I certify that a true and correct copy of the foregoing has been served on the
following counsel and/or pro se parties of record, by mailing in accordance with Texas
Rule of Appellate Procedure 9.5, on March 13, 2015.

Mark D. Hopkins
HOPKINS & WILLIAMS, PLLC
12117 Bee Caves Road, Suite 260
Austin, Texas 78738
fax (512) 600-4326
attorney for Appellee.

                                              /s/ Michael Brinkley
                                              _____________________________________
                                              Michael Brinkley




MOTION FOR REHEARING
                                          4
