ON STATE’S MOTION FOR REHEARING
DICE, Commissioner.The state insists that Bill of Exception No. 1 to the court’s action in overruling appellant’s plea in bar should not be considered because the trial court’s attention was never called by the clerk to the filing of the bill, as provided by Art. 760d, V.A.C.C.P.
In construing Art. 760d, supra, it has been the holding of this court that where a bill of exception is filed with the clerk of the court within ninety days after the date notice of appeal is given and no action is taken by the court on the bill within one hundred days after notice of appeal is given the bill must be considered approved by the court. Wortham v. State, Tex.Cr.App., 333 S.W.2d 158, and Lair v. State, Tex.Cr.App., 333 S.W.2d 389.
Recently, in Mansell v. State, Tex.Cr.App., 364 S.W.2d 391, we pointed out that in passing upon bills of exception filed under Art. 760d, supra, and refused by the court after the time allowed by statute had expired, we have consistently declined to consider the failure of the clerk to notify the judge of the filing of such bills, and have considered the bills as filed and approved.
We observe that if, as the státe contends, the bill of exception does not reflect the true facts, the judgment of this court would not be binding in the cause on the issue upon another trial showing different facts.
The motion for rehearing is overruled.
Opinion approved by the Court.