                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                             NO. 02-14-00094-CV


IN RE THEODIS DODSON                                                  RELATOR


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                           ORIGINAL PROCEEDING

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                        MEMORANDUM OPINION 1

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      Relator Theodis Dodson asks this court to compel the trial court to rule on

his motion for DNA testing under chapter 64 of the code of criminal procedure.

See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2013).

      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)

(“Mandamus will issue when there is a legal duty to perform a non-discretionary

act, a demand for performance, and a refusal.”); In re Dodson, No. 02-09-00190-

      1
      See Tex. R. App. P. 47.4, 52.8(d).
CV, 2009 WL 2138840, at *1 (Tex. App.—Fort Worth July 14, 2009, orig.

proceeding). That is, the movant is required to show that the matter was brought

to the attention of the trial court and the trial court failed or refused to rule.

Barnes v. State, 832 S.W.2d 424, 426–27 (Tex. App.—Houston [1st Dist.] 1992,

orig. proceeding). Merely filing the matter with the district clerk is not sufficient to

impute knowledge of the pending pleading to the trial court. In re Hearn, 137

S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding). The movant

must request a hearing on the motion with the trial court or otherwise bring the

motion to the trial court’s attention. See id. (stating that relator attempted to bring

his motions to the trial court’s attention by filing a letter with the district clerk

“asking that she bring his motions to the attention of the trial court and request

the court to rule”).

       Nothing in the record here indicates that relator’s motion has been

presented to the trial court. Accordingly, relator’s petition for writ of mandamus is

denied.



                                                      PER CURIAM

PANEL: GABRIEL, DAUPHINOT, and GARDNER, JJ.

DAUPHINOT, J., filed a dissenting opinion.

DELIVERED: April 10, 2014




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