in Re Muqtasid-A. Qadir ( 2009 )


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  •                           COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-09-029-CV
    IN RE MUQTASID-A. QADIR                                                RELATOR
    ------------
    ORIGINAL PROCEEDING
    ------------
    MEMORANDUM OPINION 1
    ------------
    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
    1
    … See Tex. R. App. P. 47.4.
    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.”).2 Accordingly, relator’s petition for writ
    of mandamus is denied.
    PER CURIAM
    PANEL: GARDNER, DAUPHINOT, and MEIER, JJ.
    DELIVERED: February 20, 2009
    2
    … 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).
    2
    

Document Info

Docket Number: 02-09-00029-CV

Filed Date: 2/20/2009

Precedential Status: Precedential

Modified Date: 9/4/2015