                             COURT OF APPEALS
                              SECOND DISTRICT OF TEXAS
                                   FORT WORTH

                                   NO. 2-09-325-CV


IN RE MICHAEL RICHARD MORRISSEY                                          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
      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) (“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: GARDNER, DAUPHINOT, and WALKER, JJ.

DELIVERED: November 25, 2009




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