Understanding Continuances in Legal Proceedings: Common Reasons and Guidelines

In legal proceedings, a continuance serves as a request to reschedule a court hearing or trial to a later date, typically sought when additional time is necessary for adequate preparation. This article offers insights into the most common reasons why a Court grants a continuance.

Authority to grant a continuance

No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law. TRCP 251.

The Texas Rules of Civil Procedure dictate that a continuance shall only be granted for “sufficient cause”, “consent of parties “or operation of law.” TRCP 251. Keep in mind that even when there is “sufficient cause” to brant a continuance, the court still has discretion as to whether to grant the continuance or not. In other words, “sufficient cause” allows a court to grant a continuance but does not require a court to grant a continuance.

The Usual Suspects

A review of Texas cases dealing with continuances shows that continuances are usually requested for 4 reasons, 1) a witness is unavailable, 2) a party is unavailable for trial, 3) a party’s attorney is unavailable for trial 4) more time is needed for discovery and 5) more time is needed to prepare for trial.

Witness Unavailable for Trial

A party may move for a continuance on the ground that a material witness is unavailable. Tex. R. Civ. P. 252. In order to be eligible for to continuance the trial based on a missing witness a party must allege that:

1.  the testimony must be material;
2. that the party has used due diligence to procure the testimony; and
3. that the absent testimony cannot be procured from any other source (unless this is the first requested continuance).

Middleton v. Vaughn, Tex.Civ.App. (Waco) NWH, 530 S.W.2d 925.

Party Unavailable for Trial
When a continuance is sought because of the unavailability of a party, the rules governing unavailability of witnesses apply (see above). In re Guardianship of Cantu de Villarreal, 330 S.W.3d 11, 27 (Tex. App.—Corpus Christi 2010, no pet.).

Surprisingly, A trial court is not required to grant a motion for continuance just because a party is unable to be present at trial. Hawthorne v. Guenther, 917 S.W.2d 924, 929 (Tex. App.—Beaumont 1996, writ. denied)

Party’s Attorney Unavailable for Trial

When a request for a continuance is made due to the unavailability of counsel, Texas Rule of Civil Procedure 253 governs the matter. See Tex. R. Civ. P. 253.

“Except as provided elsewhere in these rules, absence of counsel will not be good cause for a continuance or postponement of the cause when called for trial, except it be allowed in the discretion of the court, upon cause shown or upon matters within the knowledge or information of the judge to be stated on the record.” Tex. R. Civ. P. 253.

More Time is Needed for Discovery

The Texas Supreme Court,See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004), has provided the following non-exclusive factors to be considered by  a court when decided to deny a continuance based on a party’s argument that more time is needed for discovery:

1. the length of time the case has been on file,
   1. Appellate courts reviewing denials of continuance motions have found no abuse of discretion in the following cases. See, e.g., Harden v. Merriman, No. 02-12-00385-CV, 2013 WL 5874708, at *5 (Tex. App.-Fort Worth Oct. 31, 2013, no pet.) (mem. op.) (five months); Aerobic Maint. & Serv., Inc. v. First United Bank & Tr. Co., No. 02-08-00232-CV, 2009 WL 1425179, at *4 (Tex. App.-Fort Worth May 21, 2009, no pet.) (mem. op.) (two months); Rest. Teams Intl, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 342 (Tex. App.-Dallas 2002, no pet.) (nine months).
      Reynolds v. MBRV I, LLC, 02-21-00242-CV (Tex. App. Mar 03, 2022)
2. the materiality and purpose of the discovery sought, and
   1. An affidavit seeking a continuance of a summary judgment hearing must show why the continuance is necessary; conclusory allegations are insufficient. Sayles v. Senior Care Res., Inc., No. 02-20-00124-CV, 2021 WL 62130, at *8 (Tex. App.-Fort Worth Jan. 7, 2021, no pet.) (mem. op.). As noted above, the motion must also be supported by an affidavit describing, among other things, the materiality of the evidence sought. Id. at *7.
3. whether the party seeking the continuance has exercised due diligence to obtain the discovery sought.
   1. In determining whether due diligence was used, the trial court must consider the procedural history and record of the case. Elberger v. Dub Miller Ford, No. 01-06-00926-CV, 2007 WL 3293725, at *3 (Tex. App.-Houston [1st Dist] Nov. 8, 2007, no pet.) (mem. op.)

See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004);”see also Wal-mart Stores Tex., L.P. v. Crosby, 295 S.W.3d 346, 356 (Tex. App.—Dallas 2009, pet. denied) (motion denied where parties’ motion did not set forth evidence sought by further discovery, its materiality, or that the parties had used due diligence to obtain it).

Need More time to Prepare for Trial

Absent a strong and specific showing of what additional preparation might have been made had the continuance been granted, [a] trial court may deny a continuance. In re P.M., No. 07-04-0595-CV, 2006 WL 407077, at *1 (Tex. App.-Amarillo Feb. 22, 2006, pet. denied) (mem. op.). Further, Personal matters, other cases, and insufficient time to prepare are not necessarily sufficient cause for granting a continuance. See Blake v. Lewis, 886 S.W.2d 404, 409 (Tex. App.—Houston [1st Dist.] 1994, no writ).

More Time is Needed to Obtain Representation

The right to counsel is a valuable right; its unwarranted denial is reversible error. See State v. Crank, 666 S.W.2d at 94; Stefanov v. Ceips, 395 S.W.2d 663, 665 (Tex.Civ.App.–Amarillo, 1965, no writ). If a party  previous attorney’s withdrawal’s, the party must allege and show that the withdrawal was not due to their fault or negligence. “In re Marriage of Harrison, ___ S.W.3d ___, ___, No. 14-15-00430-CV, 2018 WL 2926268, at *11 (Tex. App.—Houston [14th Dist.] June 12, 2018, no pet. h.). However, if a court allows a party’s attorney to withdrawal, the court should give the party adequate time to hire a new attorney and give that attorney time to prepare. Lowe v. City of Arlington, 453 S.W.2d 379, 382 (Tex.Civ.App.–Fort Worth 1970, writ ref’d n.r.e.). In one case, a party was given 4 month to find a new attorney and prepare or trial. The appellate court held that when the party asked for another continuance to find an attorney that “four months was sufficient time to obtain new counsel and prepare for trial” and that party who did not retain counsel during that period “was not deprived of his right to be represented by counsel; he simply failed to secure representation within the time provided by the trial court’). In re V.I.P., NO. 01-18-00704-CV (Tex. App. Jun 27, 2019)

Conclusion