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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-374-CV
IN RE TONY CHAVEZ 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.
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.