












 
 
 
 
 
 
                        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.




 
PER
CURIAM
 
 
PANEL:  GARDNER, DAUPHINOT, and WALKER, JJ.
 
DELIVERED: November 25,
2009




     [1]See
Tex. R. App. P. 47.4.


     [2]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) (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.


