                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                     NO. 2-10-071-CV

IN RE BILLY JOE SCALES                                                      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
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) (“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 and MEIER, JJ.

DELIVERED: March 15, 2010




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