                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                                NO. 2-09-029-CV

IN RE MUQTASID-A. QADIR                                                RELATOR

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                             ORIGINAL PROCEEDING

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                         MEMORANDUM OPINION 1

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        Relator asks this court to compel the respondent, Louis Sturns, Judge of

the 213th Judicial District Court, to rule upon a motion for DNA testing that he

asserts has been pending in the trial court for over seven years without a ruling.

The court has considered relator’s petition for writ of mandamus and is of the

opinion that relief should be denied.

        The trial court has indicated that relator’s case file has been closed for

several years and that there is no pending motion for DNA testing. Because

relator’s motion for DNA testing has not been presented to respondent, he has

not had an opportunity to rule on the motion. Presentment of the motion to the

trial court is a prerequisite to mandamus relief. See O’Connor v. First Court of




   1
       … See Tex. R. App. P. 47.4.
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 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.”).2 Accordingly, relator’s petition for writ

of mandamus is denied.




                                                 PER CURIAM


PANEL: GARDNER, DAUPHINOT, and MEIER, JJ.

DELIVERED: February 20, 2009




    2
     … However, we note that “Chapter 64 does not prohibit a second, or
successive, motion for forensic DNA testing.” See Ex parte Baker, 185 S.W.3d
894, 897 (Tex. Crim. App. 2006).

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