in Re Daniel Harmon ( 2009 )

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-491-CV

IN RE DANIEL HARMON 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.

Relator shall pay all costs of this original proceeding, for which let execution issue.

PER CURIAM

PANEL:  MCCOY and LIVINGSTON, JJ.

DELIVERED:  January 20, 2009

FOOTNOTES

1:

See Tex. R. App. P. 47.4.

2:

The trial court and the district clerk’s office have advised this court that they do not have any record that relator has filed a pending motion to compel.   Because relator’s motion has never been received by the trial court, Respondent has not been provided an opportunity to rule upon 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).