                            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.




   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 “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




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