In re Tony Chavez--Appeal from Criminal District Court No. 1 of Tarrant County
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-09-374-CV IN RE TONY CHAVEZ RELATOR -----------ORIGINAL PROCEEDING ------------ MEMORANDUM OPINION 1 -----------The court has considered relator s petition for writ of mandamus and is of the opinion that relief should be denied. 2 Accordingly, relator s petition for writ of mandamus is denied. 1 ï ¤ See Tex. R. App. P. 47.4. 2 ï ¤ In its response, the State of Texas states that the Tarrant County District Clerk s office has not received relator s Second Motion for Appointment of Counsel for Post-Conviction DNA Testing. 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. PER CURIAM PANEL: LIVINGSTON, J.; CAYCE, C.J.; and WALKER, J. DELIVERED: November 20, 2009 2
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