                                   NO. 07-09-0169-CV

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                      JUNE 5, 2009

                          ______________________________


                           In re BARRY DWAYNE MINNFEE,

                                                      Relator
                        _________________________________

              ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
                      _______________________________

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

       Pending before this court is the application of Barry Dwayne Minnfee for a writ of

mandamus. He requests that we compel the “court to respond to further motion for

rehearing” concerning his request for DNA testing. We deny the application for the

reasons that follow.

       First, rules of procedure obligate one seeking mandamus relief to accompany his

petition with an appendix. TEX . R. APP. P. 52.3(j). The latter must include, among other

things, a certified or sworn copy of the document showing the matter complained of. In this

case, the document showing the matter complained of would be the motion requesting

further rehearing from the trial court. This Minnfee failed to do.

       Second, Minnfee did disclose in his application for writ of mandamus that he has

filed several prior motions for rehearing and that they had been “overruled.” Whether those
motions were mere reiterations of that at issue here is unknown for they too were not

included in an appendix. Nonetheless, he cites us to nothing that suggests, much less

requires, a trial court to act upon repetitious motions that are akin to motions for new trial.

With regard to the latter, they are considered overruled by operation of law if no action is

taken upon them within 75 days of the date the final order was signed. TEX . R. CIV. P.

329b(c). Given that a motion for rehearing which attempts to alter a final order is much like

one for new trial, see Edwards Lifesciences, L.L.C. v. Covenant Health Systems, 205

S.W.3d 687, 690 (Tex. App.–Amarillo 2006, no pet.) (stating that the substance of the

motion controls as opposed to its label), we see no reason to treat them differently here.

So, given that the allegations in and the file-mark on Minnfee’s application for writ leads

us to conclude that 1) more than 75 days has lapsed from the date upon which the trial

court entered its final order and 2) the trial court has yet to act on the motion, it can and

should be considered as overruled by operation of law.

       Accordingly, the application for writ of mandamus pending before this court is

denied.



                                                   Per Curiam




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