Robert C. COWAN, Sr. & Jerry W. McCraw, Relators,
v.
The FOURTH COURT OF APPEALS, Respondent.
No. C-6037.
Supreme Court of Texas.
January 7, 1987.William B. Chenault, San Antonio, for relators.
Sam Millsap, Jr., Crim. Dist. Atty. and Barry P. Hitchings, Asst. Crim. Dist. Atty., Bexar County, San Antonio, for respondent.
PER CURIAM.
This mandamus proceeding arises from the refusal of the Fourth Court of Appeals to allow a motion for rehearing. Robert Cowan and Jerry McCraw filed suit to challenge an order of the Bexar County Commissioners Court abolishing three justice of the peace positions. The order of the Commissioners Court was upheld by the trial court. The court of appeals affirmed the trial court's judgment and concluded its opinion by citing Tex.R.App.P. 190 and stating "the right to file a motion for rehearing is denied." 717 S.W.2d 738. Cowan and McCraw filed an application for writ of error with this court. However, because there was no motion for rehearing in the court of appeals, the application for writ of error was dismissed for want of jurisdiction. We now hold in this mandamus proceeding that the court of appeals abused its discretion in denying the right to file a motion for rehearing, and we conditionally grant the writ of mandamus.
Tex.R.App.P. 190 concerns motions for rehearing in this court, not the courts of appeals. The rule relating to motions for rehearing in the courts of appeals is Tex.R. App.P. 100 which does not afford courts of appeals the discretion to deny a party the right to file a motion for rehearing.
Without hearing oral argument, we conditionally grant the writ of mandamus pursuant to Tex.R.App.P. 122. Should the court of appeals refuse to set aside its order denying the right of relators to file a motion for rehearing, a writ of mandamus will issue. See Stoner v. Massey, 586 S.W.2d 843 (Tex.1979).