dissenting.
I respectfully dissent from that part of our judgment which allows intervenor Ms. Hudgins fifteen days from this date to file her motion for rehearing. This holding thereby enlarges the time for filing such motion to a period in excess of 300 days from the date of the court of civil appeals’ final judgment, July 27, 1978. Rule 4581 requires that a motion for rehearing must be filed within fifteen days from the date of the final judgment and under the clear language of Rule 5 and the prior holdings of this Court, such period is mandatory and we have no discretion to enlarge this time. See Honeycutt v. Doss, 410 S.W.2d 772 (Tex.1966); Smith v. Harris County-Houston Ship Chan. Nav. Dist., 160 Tex. 292, 329 S.W.2d 845 (1959); Reynolds v. Dallas County, 146 Tex. 372, 207 S.W.2d 362 (1948).
I agree that the court of civil appeals erroneously said in its opinion of July 27, 1978 that:
“No further motion for rehearing in this case will be entertained; none may be filed.”
It is now settled law that a dissatisfied litigant has an absolute right to file a motion after the court of civil appeals hands down an opinion in connection with the overruling of a motion for rehearing, Honeycutt v. Doss, supra; and must do so as a predicate for appeal if the judgment is changed in any respect. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex.1964).
This requirement was recognized by relator Stoner who timely tendered his motion for rehearing to the clerk of the court of civil appeals. Upon the clerk’s refusal to file same, Stoner promptly filed this petition for mandamus to compel the clerk to file the required motion and for the court of civil appeals to consider same.
On the other hand, Ms. Hudgins has never tendered a motion for rehearing. She does not have a point in her application for writ of error complaining of the recitation in the court of civil appeals final judgment which states that a further motion for rehearing would not be entertained or filed. It was not until January 5, 1979, almost six months after the final judgment, and then only by alternative prayer in her intervention in Stoner’s application for mandamus, did Ms. Hudgins request that she be given an opportunity to file a motion for rehearing. Ms. Hudgins vigorously urges by her intervention that no further motion for rehearing was required after the judgment of July 27 was rendered. The record does not show that she has ever prepared a motion for rehearing, much less that she tried to file one.
I understand the decision confronting both parties after the court of civil appeals rendered the new judgment on July 27. I would suggest however that it is not unusual for advocates to disagree with rulings of trial or appellate courts. In such event, the advocate knows that the record must be protected so that the alleged erroneous action may be subsequently reviewed by the proper forum. It cannot be seriously suggested that Stoner was contemptuous of the ruling of the court of civil appeals when he timely tendered his motion for rehearing and subsequently sought a review of that court’s action by his petition for mandamus. In fact, such procedure is suggested by Rules 389 and 389a.
*848Rule 458 requires that a motion for rehearing be timely filed wherein the assignments of error are distinctly specified. Rule 469(c) provides that the points of error in the application for rehearing must have been assigned as error in the motion for rehearing in the court of civil appeals. Clearly the court of civil appeals has no authority to supersede or change the rules of civil procedure. Yet such result has been accomplished by the majority opinion here which permits the court of civil appeals to nullify the mandatory requirement that the motion for rehearing be timely filed. If this is allowed, it would appear to logically follow that other mandatory provisions in our rules of civil procedure might be nullified by the erroneous actions of other lower courts.
It is suggested that the erroneous statement by the court of civil appeals that no further motion for rehearing could be filed constitutes good cause for enlarging the time for Ms. Hudgins to file a motion for rehearing. Such suggestion overlooks the express provisions of Rule 5 and our prior decisions that the time for filing such a motion cannot be extended, even for good cause.
Article 1877, Texas Revised Civil Statutes Annotated governed the practice relating to motions for rehearing prior to the adoption of the Texas Rules of Civil Procedure, effective September 1, 1941. It was held under this statute that the time for filing a motion for rehearing could be extended for good cause. Rule 5 was drafted and adopted to specifically provide that the court “may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing . . . .”
In Reynolds v. Dallas County, supra, this Court was squarely presented with the question of whether we had authority under Rules 458 and 5 to extend or enlarge the time provided by Rule 458 in which motions for rehearing might be filed when good cause for delay is shown. In holding that we did not have such authority, we said:
“The language used in Rule 4682 is clear, and no exception is prescribed for varying the time in which an application for writ of error must be filed. The language used in Rule 5 and in Rule 458 is also plain and specific. It is provided that a motion for rehearing must be filed within the fifteen-day period mentioned, or a request for an enlargement of the time must be made within that period.”
This holding has been followed without exception until the present case. See Honeycutt v. Doss, supra; Ector County Ind. School District v. Hopkins, 518 S.W.2d 576 (Tex.Civ.App.—El Paso, no writ); Saunders v. Martin, 390 S.W.2d 513 (Tex.Civ.App.—Texarkana 1965, no writ); Sales and Cliff, Jurisdiction in the Texas Supreme Court and Courts of Civil Appeals, 26 Baylor L.Rev. 501, 517 (1974).
This jurisdictional requirement is not waived or met by the timely motion for rehearing tendered by relator Stoner. A similar contention was presented and rejected by this Court in Oil Field Haulers Ass’n v. Railroad Commission, supra wherein we held:
“This Court has no jurisdiction of a party’s application unless and until a motion for rehearing has been filed in and overruled by the Court of Civil Appeals. Bain Peanut Co. of Texas v. Pinson & Guyger, 119 Tex. 572, 34 S.W.2d 1090; Rule 468.
“Finally, Hill & Hill cannot take a ‘free ride’ on the Second Motion filed by Haulers even if we have jurisdiction of that application. The situation is analogous to that in which a party attempting to perfect an appeal from a trial court judgment seeks to avail himself of the benefit of another party’s motion for new trial. See Angelina County v. McFarland, Tex. Sup., 374 S.W.2d 417, 421; Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434.”
*849I would respectfully suggest that if a change is to be made in this settled rule of practice, it should be done by amendment to the Texas Rules of Civil Procedure so that the change may be uniformly applied. Under the holding of the majority, Rules 458 and 5 are mandatory except in the type of situation herein presented. Despite the stated limitation, such a holding can only confuse the Bench and Bar about a heretofore settled rule of practice. More importantly, it is not equal justice under the law.
STEAKLEY, POPE and McGEE, JJ., join in this dissent.
Dissenting Opinion by POPE, J.
. All references to rules are to Texas Rules of Civil Procedure.'
. This rule requires in part that the application for writ of error be filed within thirty days after the overruling of a final motion for rehearing.