In re Michael Richard Morrissey--Appeal from County Criminal Court No. 3 of Tarrant County

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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-09-325-CV IN RE MICHAEL RICHARD MORRISSEY 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 2 ï ¤ See Tex. R. App. P. 47.4. ï ¤ This court has been informed by the district clerk s office and by the trial court clerks for Criminal District Court No. 1 and Criminal District Court No. 3 that they have not received the application for writ of habeas corpus that Relator contends he filed on May 31, 2009. 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: GARDNER, DAUPHINOT, and WALKER, JJ. DELIVERED: November 25, 2009 2

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