Opinion
No. 02-09-029-CV
Delivered: February 20, 2009.
Original Proceeding.
PANEL: GARDNER, DAUPHINOT, and MEIER, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
Relator asks this court to compel the respondent, Louis Sturns, Judge of the 213th Judicial District Court, to rule upon a motion for DNA testing that he asserts has been pending in the trial court for over seven years without a ruling. The court has considered relator's petition for writ of mandamus and is of the opinion that relief should be denied.
The trial court has indicated that relator's case file has been closed for several years and that there is no pending motion for DNA testing. Because relator's motion for DNA testing has not been presented to respondent, he has not had an opportunity to rule on the motion. 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) ("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."). Accordingly, relator's petition for writ of mandamus is denied.
However, we note that "Chapter 64 does not prohibit a second, or successive, motion for forensic DNA testing." See Ex parte Baker, 185 S.W.3d 894, 897 (Tex.Crim.App. 2006).