












 
 
 
 
 
 
                        COURT OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
                                                 NO. 2-10-071-CV
 
IN RE BILLY JOE SCALES                                                                    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
and MEIER, JJ.
 
DELIVERED: 
March 15, 2010




    
[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 clerk for Criminal
District Court No. 1 that they have not received the motion for DNA testing
that relator contends he filed. 
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.


