A litigant in a civil case in the state of Texas can postpone a court date by requesting a continuance. A defendant in a criminal case may be able to postpone their court hearing by waiving their right to a speedy trial and requesting a continuance. A party who is represented by an attorney should request that their attorney complete the correct form or file the correct motion for a continuance.
A party who is self-represented should ask the court clerk what form or motion to file. A self-represented party may want to seek assistance from a legal aid office, if they are indigent or qualify for such aid, when filing for a continuance.
Method to Seek Continuance Differs Among Texas Courts
The type of case and the type of court determine how a party should seek a continuance. A person typically seeks a continuance in writing by filing a motion for a continuance with the clerk’s office. If the other side in the case does not agree to the continuance, the court will hold a hearing as to whether it will continue the case. The party requesting a continuance is typically the one to call the clerk, who schedules the continuance hearing.
Particular Concerns for Certain Court Proceedings
A specific court may have its own rules about how it grants continuances. A party in a case should look at the rules on the court's website to learn more about how to get a continuance. For example, in municipal court for the city of Tomball, a defendant may reschedule a traffic court date one time for any reason.
The defendant must make a request for a continuance in person or through their attorney before the scheduled court date. A trial date motion for a continuance must be filed with the court clerk at least 10 days before the scheduled trial date.
Continuances in Harris County
In the district courts of Harris County, the court will grant a first continuance for good cause or upon agreement of the parties if a party files a motion for continuance sufficiently in advance of the trial setting. If a first continuance is agreed to, it will not require a hearing unless, after reviewing the motion, the court decides that a hearing is necessary. A party requesting a second or further continuance must demonstrate a substantial need for another delay of the trial setting. An oral hearing for the continuance must be set to determine whether the parties agree or one party opposes the motion.
Continuances at the State Office of Administrative Hearings
At the State Office of Administrative Hearings, a party must file a motion for a continuance at least five days before the hearing unless they have a good reason to ask for one later. They must send a copy of their motion to the other party. The motion must state why the party cannot attend the hearing on the day scheduled and must give three proposed dates for rescheduling the hearing.
The party requesting the continuance must state that they have contacted or attempted to contact the other party about their request. They must say whether the other party objects to the continuance. The continuance request may be denied if the party requesting it does not include the required information.
If a party files a motion for a continuance and they do not hear from the court, they should assume the motion has been denied. They should be prepared to attend the hearing as originally scheduled.
Reasons to Reschedule a Court Appearance Date
A plaintiff, a defendant, the state, or the court may have many reasons for a postponement. These include the judge having a prior commitment; individuals that are key to the case, such as witnesses, may be unavailable due to a serious medical condition; COVID-19-related safety measures and testing for a case need to be accomplished before a hearing or trial date.
Certain courts grant lead counsel actively engaged in the litigation of a matter an automatic continuance for specified reasons. For example, in the district courts of Harris County, a lead counsel may seek an automatic continuance of up to 180 days if they give birth or adopt a child. They may also seek an automatic continuance if they need to care for an immediate family member, such as a spouse, child or parent with a serious health condition.
Waiving Right to a Speedy Trial
The 6th Amendment of the U.S. Constitution guarantees a defendant in a criminal case who is facing incarceration of a period longer than six months the right to a speedy trial. Article 1 Section 10 of the Texas Constitution also guarantees the accused in all criminal prosecutions the right to a speedy and public trial. A defendant must waive their right to a speedy trial for the case to be continued. A defendant who has been denied the right to a speedy trial can bring a speedy trial motion, and a defendant does not have to assert their right to a speedy trial right away.
Understanding the Term Reset
Depending on the court, the term reset may mean the same as a continuance. Yet a court may define a reset slightly differently and have different requirements for a reset than for a continuance. A party should ask their attorney or the court how a reset differs from a continuance.
For example, in Taylor County, for court-appointed attorneys, the court administrator may reset a case up to three times. For retained, or private attorneys, a court administrator may schedule up to four resets. After these limits are reached, the attorney must talk to the judge to get another reset. A reset is for a period of six weeks. A defendant who has been reset on a current case and is out on bond and then commits another offense will have their bond declared insufficient.
There may be specific requirements for the documentation that must be filed for the continuance motion. For example, in the district courts of Harris County, a continuance or reset motion must state what number continuance motion is being filed. Such as “Plaintiff’s First” or “Defendant's Second” or “Third Agreed Motion.” This is true whether the motion is agreed, unopposed or opposed.
Motion to Postpone Trial
A court may view a motion to postpone a trial date as different from a motion for a continuance. The court may have different forms for these motions. In a justice court in Harris County, a motion to postpone a trial date must state why the postponement of the trial is necessary. Reasons may include the fact that the defendant is in the middle of a trial for another case. A judge, for good cause, may postpone any trial for a reasonable time.
- In the Court of Criminal Appeals of Texas: Rosario Zamorano v. The State of Texas (2002)
- Harris County, Texas: Motion to Postpone Trial
- District Courts of Harris County, Texas: Pre-trial Procedures and Motion Practice
- Taylor County, Texas: Courtroom Rules
- TexasLawHelp.org: How to Ask for a Continuance
- City of Tomball: "I got a citation! What Do I do?"
- State Office of Administrative Hearings: Representing Yourself in General Hearings Cases at the State Office of Administrative Hearings
- Consider engaging the services of an attorney to represent you in your lawsuit. Civil procedure and the legalities associated with any lawsuit tend to be complex. Your interests normally enjoy the best protection and advancement with an attorney at your side. Local and state bar associations maintain directories of attorneys in different practice areas, including civil litigation. Contact information for these organizations is available through the American Bar Association:
- American Bar Association
- 321 N. Clark St.
- Chicago, IL 60654-7598
- A judge typically conducts a phone conference to take up the matter of a motion to continue. A court can conduct a hearing in court as well, depending on the circumstances. Be prepared to address the underlying reason for the requested continuance and to defend your position. Some judges frown on postponements and do not grant them eagerly.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.