CHARLES RAY SMITH, Appellant v. MCKINNEY HOUSING AUTHORITY, Appellee

AFFIRM; Opinion issued September 13, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01466-CV
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CHARLES RAY SMITH, Appellant
V.
MCKINNEY HOUSING AUTHORITY, Appellee
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On Appeal from the County Court at Law No. 1
Collin County, Texas
Trial Court Cause No. 001-2699-2008
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MEMORANDUM OPINION ON REHEARING
Before Justices Morris, FitzGerald, and Francis
Opinion By Justice FitzGerald
        Appellant Charles Ray Smith filed a motion for rehearing. The Court overrules Smith's motion for rehearing. On the Court's own motion, we withdraw our memorandum opinion issued July 23, 2010 and vacate our judgment of that date. The following is now the opinion of this Court.
        The McKinney Housing Authority brought a forcible entry and detainer action against Charles Ray Smith in justice court and obtained a favorable judgment. Smith, proceeding pro se, appealed to the county court at law. On the day of trial, Smith orally moved for a continuance so that he could have more time to find a lawyer. The trial court denied his motion and rendered judgment for MHA after a bench trial. In his sole issue on appeal, Smith challenges the denial of his motion for continuance. We affirm.
I. Background
        On September 25, 2008, MHA sued Smith for forcible entry and detainer in the justice court for Collin County. Smith was served with process on September 30. On October 8, the court rendered judgment against Smith, and he appealed to the county court at law on that same day. On October 14, the county court at law set the case for trial on October 27.
        Smith filed a sworn motion for continuance a few days before the trial in which he argued only that he needed additional time “to collect evidence for trial.” At the beginning of the trial on October 27, he orally sought a continuance on the additional ground that he needed time to find legal representation. He stated that he had tried to get legal representation by going to North Texas Legal Aid Services in McKinney, but Legal Aid was not able to help him. He also went to an unnamed Richardson law firm on or about October 22, but the firm was unable to decide whether to take his case on such short notice. He also explained that he lacked transportation and that he had severe health problems that hampered his ability to find representation before the hearing. The court denied his request for a continuance.
        After the trial, the court rendered judgment in favor of MHA. Smith appealed. His sole issue on appeal is whether the trial court committed reversible error by denying his motion for continuance based on his need to find a lawyer.
II. Analysis
        The party seeking a continuance bears the burden of demonstrating sufficient cause. See Tex. R. Civ. P. 251; see also Tex. R. Civ. P. 253 (providing that motions for continuance based on “absence of counsel” may be granted in the court's discretion “upon cause shown”). When relying on the absence of counsel as grounds for reversal, the appellant must demonstrate that his lack of counsel was not the result of his own fault or negligence. Ayati-Ghaffari v. H-Ebrahimi, 109 S.W.3d 915, 916 (Tex. App.-Dallas 2003, no pet.). We review the denial of a motion for continuance under an abuse-of-discretion standard of review. Wal-Mart Stores Tex., LP v. Crosby, 295 S.W.3d 346, 356 (Tex. App.-Dallas 2009, pet. denied). A trial court abuses its discretion by making a decision that is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
        A reasonable trial judge could conclude, as this trial court did, that Smith did not carry his burden of showing sufficient cause for a continuance. Although he described some health problems that he had suffered from since moving into the apartment in question, he did not say that those health problems had arisen after he was served with MHA's lawsuit or explain how those problems had impeded his search for counsel. He identified only two attempts that he had made to find counsel in the 27 days that had passed after he was served with process. The trial court could reasonably conclude that Smith had not adequately proved his own lack of fault or negligence. See Ayati-Ghaffari, 109 S.W.3d at 916 (affirming denial of continuance even though appellant's counsel withdrew 25 days before trial). Moreover, eviction proceedings in Texas are expedited. Trial in the justice court is to take place between six and ten days after service of the citation. Tex. R. Civ. P. 739. Continuances of that trial should not exceed six days. Id. 745. An appeal to the county court at law must be perfected within five days of judgment, id. 749, and the appeal by trial de novo “shall be entitled to precedence in the county court,” id. 751. The trial court properly considered the expedited nature of the proceeding in ruling on Smith's request for a continuance. The trial court did not abuse its discretion.
        Smith asserts that the denial of his motion for continuance violated his due process right to counsel. A trial court's denial of a request for continuance based on the need to obtain counsel offends due process only if the action is arbitrary and outside the bounds of discretion. State v. Crank, 666 S.W.2d 91, 94-95 (Tex. 1984) (citing Ungar v. Sarafite, 376 U.S. 575 (1964)). We have already concluded that the trial court's action was not arbitrary or an abuse of discretion. We reject Smith's constitutional argument.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
081466F.P05