












 
 
 
 
 
 
                        COURT OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
                                        NO.
2-09-374-CV
 
 
IN
RE TONY CHAVEZ                                                              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:  LIVINGSTON, J.; CAYCE, C.J.; and WALKER, J.
 
DELIVERED:  November 20, 2009




     [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 ASecond 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) (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.


