AFFIRM; Opinion issued November 29, 2012




                                              In The


                          fth iti tritt of                   at aIla
                                      No. 05-12-00368-CV


                                W. A. MCKINNEY, Appellant

                                                V.

                         CITY OF CEDAR HILL, TEXAS, Appellee


                       On Appeal from the County Court at Law No. 2
                                   Dallas County, Texas
                           Trial Court Cause No. cc-09-09303-B


                             MEMORANDUM OPINION
                      Before Justices O’Neill, FitzGerald, and Lang-Miers
                                 Opinion By Justice FitzGerald

       This is a condemnation case. Defendant W. A. McKirmey did not appear at trial, and the trial

judge rendered judgment dismissing the case and adopting the special cornrmssioners’ report and

award as the judgment of the court. McKinney appeals. In three issues, he complains of the trial

judge’s denial of his motion for continuance and argues that trial court lacked jurisdiction. We



                                       I. BACKGROUND

       The City of Cedar Hill, Texas, filed an original petition for condemnation seeking to take two

lots owned by McKinney. Special commissioners were appointed and. after a hearing at which both

parties appeared, made an award of $233,500. McKinney filed an objection to the commissioners’
        The matter was set for trial on January 11. 2011. On McKinney’s motion for continuance,

the case was reset for July 18,2011. McKinney filed a second motion for continuance, and the c~e

was continued until December 5, 2011. In November 2011, someone named Roy Garland Boles

filed a verified pro se motion for continuance on McKinney’s behalf. Boles averred that he had

powe~ of attorney to represent McKirmey in the matter. He also averred that McKinney’s attorney

was overworked and could not timely deal with the case, requiring McKinney to find another

attorney. A few days later, McKinney’s attorney filed a motion for leave to withdraw as counsel

based on McKinney’s disagreement with the attorney’s handling of the case.

       The case was called for trial on December 5,2011. Boles appeared, but McKinney did not.

After brief testimony from Boles and from McKinney’s attorney, the trial judge orally granted the

attorney’s motion to withdraw. The judge explained that Boles could not file a motion for

continuance on McKinney’s behaffand could not represent McKinney at trial because Boles was not

an attorney. After verifying that McKinney was not present, the trial judge signed the final judgment

dismissing the case and adopting the special commissioners’ award as the judgment of the court.

       McKinney appealed pro se.

                                          II. ANALYSIS

       McKinney raises three issues on appeal. In his first issue, he argues that the trial judge erred

by denying his third motion for continuance. In his second and third issues, he argues that the trim

court lacked jurisdiction to adjudicate .the case based on certain alleged violations of the Texas

Property Code. For the following reasons, we conclude his issues are without merit.

A.     Continuance

       We review the denial of a motion for continuance for an abuse of discretion. In re £P., 365




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S.W.3d 833, 836 (Tex. App.--Dallas 2012, no pet.). Absence of counsel alone is not good cause

for a continuance. See TEX. R. Cir. P. 253. In civil cases, a party relying on the absence of counsel

as the ground for a continuance must show that his failure to be represented by counsel was not the

result of his own fault or negligence. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); State

v. Crank, 666 S.W.2d 91.94 (Tex. 1984); J.P., 365 S.W.3d at 836.

       On this record, the trial judge did not act unreasonably or arbitrarily by denying McKinney’s

motion for continuance. McKinney’s third motion for continuance, signed by someone who was not

an attorney, contained only an averment that McKinney’s counsel was "over worked and cannot

timely deal with this case[,] mandating that another attorney be located to assist and represent

[’McKinney]." McKinney did not appear at trial, but Boles, who claimed to have power of attorney

for McKinney, appeared and confLrmed that he wanted to fire McKinney’s attorney even after the

trial judge informed Boles that he could not represent McKinney in court. No evidence was

presented at the time of trial to show that McKinney was not negligent or at fault for being without

an attorney at that time. The trial judge could reasonably conclude that McKinney had failed to

prove that his lack of counsel was not the result of McKinney’s own fault or negligence.

Accordingly, the trial judge did not abuse his discretion by denying McKinney’s motion for

continuance. See J.P., 365 S.W.3d at 836-37 (trial judge did not abuse discretion by denying

continuance when movant had fired his attorney one month before trial); LaChance v. Hollenbeck,

695 S.W.2d 618,620 (Tex. App.--Austin 1985, writ ref’d n.r.e.) (trial judge did not abuse discretion

by denying continuance when movant had fired his attorney four days before trial).

B.     Jurisdiction

       McKinney’s second issue on appeal is not entirely clear. In his statement of the issue,

McKinney asserts that the trial court lacked jurisdiction because the C!ty failed to comply with




                                                -3-
section 21.0113 of the properly code. In the body of his argtunent, he complains that the City’s

petition did not comply with section 21.0113, but he quotes section 21.012(a) and section

21.012(b)(6) in support. In any event, his issue ~s without merit. Section 21.0113 requires an entity

with eminent-domain authority that desires to acquire real property for a public use to make a bona

fide offer to the property owner. TEX. PROP. CODE ANN. § 21.0113(a) (West Supp. 2012). But this

case was filed on December 9, 2009, and section 21.0113 applies only to condemnation proceedings

filed on or after September 1,2011. See id. historical note [Act of May 5, 2011, 82nd Leg., R.S.,

ch. 81, § 24, 2011 Tex. Sess. Law Serv. 354, 364 (West)]. Section 21.012(19)(6) also applies only

to condemnation proceedings filed on or after September 1,2011. See TEX. PROP. CODE ANN.

§ 21.012 historical note (West Supp. 2012) [Act of May 5,2011, 82nd Leg., R.S., ch. 81, § 24, 2011

Tex. Sess. Law Serv. 354, 364 (West)]. Although section 21.012(a) existed prior to the filing of this

lawsuit, it provided in pertment part only that condemnation proceedings are commenced by the

filing of a petition in the proper court. See TEX. PROP. CODE ANN. § 21.012(a) & historical note

(West Supp. 2012) [Act of May 5,2011, 82nd Leg., R.S., ch. 81, § 24, 2011 Tex. Sess. Law Serv.

354, 364 (West)]. The City filed a petition for condemnation at the commencement of this case, and

McKinney has not shown any noncompliance with section 21.012(a).

        McKinney’s third issue suffers from the same flaw as his second issue. In his third issue, he

argues that the trial court lacked jurisdiction because it failed to allow him to strike one of the special

commissioners as authorized by section 21.014 of the property code. The provision allowing parties

to strike a commissioner applies only to condemnation proceedings filed on or after September 1,

2011. See TEX. PROP. CODE ANN. § 21.014(a) & historical note (West Supp. 2012) [Act of May 5,

2011,82nd Leg., R.S., ch. 81, § 24,2011 Tex. Sess. Law Serv. 354, 364 (West)]. Thus, McKinney’s

third issue is without merit.
                                   III.   DISPOSITION

      For the foregoing reasons,   affirm the trial court’s judgment.




120368F.P05




                                            -5-
                                     ourt


                                       JUDGMENT

W. A. MCKINNEY, Appellant                           Appeal from the County Court at Law No. 2
                                                    of Dallas County, Texas. (Tr.Ct.No. cc-09-
No. 05-12-00368-CV                                  09303-B).
                                                    Opinion delivered by Justice FitzGerald,
CITY OF CEDAR HILL, TEXAS, Appellee                 Justices O’Neill and Lang-Miers
                                                    participating.


       In accordance with this Court’s opinion of this date, the judgment of the trial court Is
AFFIRMED. It is ORDERED that appellee City of Cedar Hill, Texas recover its costs of this
appeal from appellant W. A. McKinney.


Judgment entered November 29, 2012.
