in Re Tony Chavez ( 2009 )

                        COURT OF APPEALS

                                       SECOND DISTRICT OF TEXAS

                                                   FORT WORTH

                                        NO. 2-09-374-CV

IN RE TONY CHAVEZ                                                              RELATOR

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                                    ORIGINAL PROCEEDING

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                                MEMORANDUM OPINION^[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.^[2]  Accordingly, relator=s petition for writ of mandamus is denied.

PER CURIAM

PANEL:  LIVINGSTON, J.; CAYCE, C.J.; and WALKER, J.

DELIVERED:  November 20, 2009

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     ^[1]See Tex. R. App. P. 47.4.

     ^[2]In its response, the State of Texas states that the Tarrant County District Clerk=s office has not received relator=s ASecond 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) (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.@).  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.