COURT OF APPEALS

                                       SECOND DISTRICT OF TEXAS

                                                   FORT WORTH

                                        NO. 2-09-029-CV

IN RE MUQTASID‑A. QADIR                                                     RELATOR

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                                    ORIGINAL PROCEEDING

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                                MEMORANDUM OPINION^[1]

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Relator asks this court to compel the respondent, Louis Sturns, Judge of the 213th Judicial District Court, to rule upon a motion for DNA testing that he asserts has been pending in the trial court for over seven years without a ruling.  The court has considered relator=s petition for writ of mandamus and is of the opinion that relief should be denied.

The trial court has indicated that relator=s case file has been closed for several years and that there is no pending motion for DNA testing.  Because relator=s motion for DNA testing has not been presented to respondent, he has not had an opportunity to rule on the motion.  Presentment of the motion to the trial court is a prerequisite to mandamus relief.  See O=Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (AMandamus will issue when there is a legal duty to perform a non‑discretionary act, a demand for performance, and a refusal.@); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.CAmarillo 2001, orig. proceeding) (AIndeed, one can hardly be faulted for doing nothing if he were never aware of the need to act.@).^[2]  Accordingly, relator=s petition for writ of mandamus is denied.

PER CURIAM

PANEL:  GARDNER, DAUPHINOT, and MEIER, JJ.

DELIVERED:  February 20, 2009