Jimmy Lee Hickson v. William B. Allison--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-95-229-CV

JIMMY LEE HICKSON,

Appellant

v.

WILLIAM B. ALLISON,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,266

O P I N I O N O N R E H E A R I N G

In his motion for rehearing, Hickson complains that in our original opinion we failed to consider his argument that the trial court abused its discretion in failing to act upon his request to amend his petition.

There was no error in the trial court's failure to act. Hickson's motion for leave to amend his petition was filed-stamped June 7, 1995, and was dated June 1. There is no evidence in the record that any hearing was scheduled in the case within seven days of his filing of the motion or that Hickson's filing of an amended petition would have somehow surprised the State. Hickson, therefore, was free to amend his petition without leave of the court at the time he filed his motion. Tex. R. Civ. P. 63. Consequently, Hickson cannot now complain that he was adversely affected by the trial court's failure to grant his request to amend his petition when he did not need the trial court's permission to do so. Hickson's argument is without merit, and his motion for rehearing is denied.

PER CURIAM

Before Justice Cummings and

Justice Vance

Motion on rehearing denied

Opinion delivered and filed August 30, 1996

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