COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-10-071-CV

IN RE BILLY JOE SCALES RELATOR

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ORIGINAL PROCEEDING

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MEMORANDUM OPINION ^{(footnote: 1)}

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The court has considered relator’s petition for writ of mandamus and is of the opinion that relief should be denied. ^{(footnote: 2)}  Accordingly, relator’s petition for writ of mandamus is denied.

PER CURIAM

PANEL:  GARDNER and MEIER, JJ.

DELIVERED:  March 15, 2010

FOOTNOTES

1:

See Tex. R. App. P. 47.4.

2:

This court has been informed by the district clerk’s office and by the trial court clerk for Criminal District Court No. 1 that they have not received the motion for DNA testing that relator contends he filed.  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) (orig. proceeding) (“Mandamus 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.—Amarillo 2001, orig. proceeding) (“Indeed, one can hardly be faulted for doing nothing if he were never aware of the need to act.”).   Because relator’s motion has never been received by the district clerk’s office for filing, the Respondent has not been provided an opportunity to rule upon the motion.