                              Fourth Court of Appeals
                                     San Antonio, Texas

                                 MEMORANDUM OPINION
                                        No. 04-13-00075-CV

                                       Robert James HENRY,
                                             Appellant

                                            v.
                               Tax Appraisal District of Bell
                       TAX APPRAISAL DISTRICT OF BELL COUNTY,
                                        Appellee

                      From the 169th Judicial District Court, Bell County, Texas
                                     Trial Court No. 233,829-C
                         The Honorable Gordon G. Adams, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: December 18, 2013

AFFIRMED

           After denying a motion for continuance filed by appellant Robert James Henry, the trial

court subsequently entered an in rem judgment in favor of appellee Tax Appraisal District of Bell

County (“the District”). Henry appeals, contending the trial court abused its discretion by denying

his motion for continuance and that such denial was so arbitrary as to violate due process. We

affirm the trial court’s judgment.
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                                                 BACKGROUND

         On January 9, 2009, the District sued Valencia T. Henry and Athela R. Henry seeking to

collect delinquent taxes owed on real property located in Bell County, Texas for tax years 2003

through 2007. A second amended petition filed on January 25, 2011, named appellant Henry as a

defendant and sought to collect delinquent taxes owed on the same piece of property for tax years

2004 through 2010. Trial on the matter was initially set for November 17, 2011.

         On the day of the first trial setting, Henry filed a motion for continuance claiming he was

unable to attend trial due to hospitalization, and that ownership of the property was currently in

dispute and awaiting a ruling from the Texas Third Court of Appeals in the case styled Henry v.

Henry, No. 03-11-00253 1. The trial court granted the continuance and the case was initially reset

for trial on June 21, 2012, but later reset at the District’s request for trial on July 19, 2012.

         On the day of the third trial setting, Henry filed his second motion for continuance, again

asserting additional time was necessary based on the appeal pending before the Third Court of

Appeals. The trial court granted Henry’s second motion for continuance and a new trial date was

set for November 15, 2012.

         On November 15, 2012, the day of the fourth trial setting, Henry filed his third motion for

continuance with the trial court. In this third motion, Henry claimed a continuance was necessary

because he was unable to appear at trial due to his incarceration in the Williamson County Jail.

He also reasserted the claim that the result of the appeal from the Third Court of Appeals was still

pending. The trial court denied the motion explaining:




1
  Henry v. Henry is an appeal from the divorce decree in Henry’s divorce from Gay N. Henry. No. 03-11-00235-CV,
2013 WL 4056221 (Tex. App.—Austin Aug. 9, 2013, no pet. h.) (mem. op.). In a decision released after the events
in this case, the Third Court abated the appeal and remanded the cause to the trial court for the entry of necessary
findings of fact and conclusions of law concerning the characterization and division of the parties’ real and personal
property. Henry, 2013 WL 4056221, at *1.

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                                                                                      04-13-00075-CV


       I don’t really see the point in dragging this out. I mean we’re talking about taxes
       from back in ’05. It seems like with Mr. Henry, if it’s not ‘he needs more time for
       the Third Court,’ it’s ‘he needs more time because he’s in jail,’ and the next time –
       This is not a comment on [counsel]; you’re just representing your client, I
       understand – but it’ll just be something else. So I’m not sure I see the point. And
       besides that, I’ve done it at least twice before.

After the motion was denied, the District introduced, without objection, the certified tax affidavit

showing the amount of taxes, penalties, and interest due on the subject property. Henry did not

present a defense. The trial court then entered judgment in rem in favor of the District for amounts

owed pursuant to the tax affidavit. Henry subsequently perfected this appeal.

                                             ANALYSIS

       Henry contends the trial court abused its discretion by denying his third motion for

continuance. Henry claims the trial court’s action was not only harmful to his case, but so arbitrary

as to violate his due process rights.

       A motion for continuance is appropriate where there is “sufficient cause supported by

affidavit, or by consent of the parties, or by operation of law.” TEX. R. CIV. P. 251. We review a

trial court’s denial of a motion for continuance for abuse of discretion. McGrede v. Coursey, 131

S.W.3d 189, 197 (Tex. App.—San Antonio 2004, no pet.) (citing Carpenter v. Cimarron

Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex. 2002). A trial court abuses its discretion when it

acts in an arbitrary or unreasonable manner, or acts without reference to any guiding rules or

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In

deciding whether a trial court abused its discretion, we do not substitute our judgment for the trial

court’s judgment and will not reverse the ruling unless the record clearly shows a disregard of a

party’s rights. Valdez v. Robertson, 352 S.W.3d 832, 834 (Tex. App.—San Antonio 2011, no pet.);

Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986).




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                                                                                      04-13-00075-CV


       In his third motion for continuance, Henry asked for a ninety-day delay on the grounds

that: (1) he was unable to attend trial due to incarceration; (2) prior to his incarceration, he was

involved in negotiations to secure funds to pay his tax obligation, but those negotiations could not

be completed due to his incarceration; and (3) the trial court should await the decision of the Third

Court of Appeals. After reviewing the record and the applicable law, we hold the trial court did

not abuse its discretion in denying Henry’s third motion for continuance.

                           Ground for Continuance –Absence of Party

       The decision to grant or deny a motion for continuance because of the absence of a party

to the suit is a matter addressed to the sound discretion of the trial judge. Garza v. Serrato, 699

S.W.2d 275, 284 (Tex. App.—San Antonio 1985, writ. ref’d n.r.e). The trial court is not required

to grant a motion for continuance just because a party is unable to be appear at trial. Hawthorne

v. Guenther, 917 S.W.2d 924, 929 (Tex. App.—Beaumont 1996, writ denied); Humphrey v.

Ahlschlager, 778 S.W.2d 480, 483 (Tex. App.—Dallas 1989, no writ). Here, there was no

suggestion Henry’s testimony was needed at trial to counter the District’s tax claim. Rather, in his

motion Henry contended “fairness and due process entitle Movant to be present at all proceedings.”

Given the trial court is not required to grant a motion for continuance merely because a party is

unable to appear at trial, we reject this portion of Henry’s argument. See Hawthorne, 917 S.W.2d

at 929. Accordingly, absent any other justification for why the trial court should postpone

proceedings so Henry could attend, we hold the trial court did not abuse its discretion based on

this ground. Garza, 699 S.W.2d at 284.

                Ground for Continuance – Prior Negotiations to Obtain Funds

       In Henry’s motion for continuance and during the argument at the hearing, Henry claimed

that immediately before his arrest, he was involved in negotiations with a lender to secure funds

to pay his tax obligation and that, but for the arrest, he would have had the funds to take care of
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                                                                                                  04-13-00075-CV


the tax obligation. Because Henry’s motion for continuance is verified and its factual allegations

are uncontroverted, we must accept the factual allegations as true. Kahanek v. Rogers, 900 S.W.2d

131, 133 (Tex. App.—San Antonio 1995, no writ.). However, even if it is true that with a ninety-

day continuance Henry would have obtained funds to satisfy the tax obligation, it is equally true

this was his third motion for continuance and he had nearly two years from the instigation of suit

to obtain funds to satisfy the obligation. The trial court did not “really see the point in dragging

this out” any longer over “taxes from back in ’05” and was convinced that after two previous

continuances, a third was not warranted. Given the record, we hold the trial court did not abuse

its discretion in denying the continuance based on this assertion. See McGrede, 131 S.W.3d at

197.

            Ground for Continuance – Pending Decision from Third Court of Appeals

        In his third ground for continuance, Henry argued the trial court should have stayed the

trial until the Third Court of Appeals rendered a decision in Henry v. Henry, which was pending

at the time of trial. Henry v. Henry, according to the motion and argument at the hearing, is a

divorce case involving Henry and his ex-wife that affects the ownership rights in the property

subject to the underlying tax suit. Henry presents no authority in support of his claim that by not

waiting for the decision of the Third Court of Appeals, the trial court abused its discretion.

Although a trial court may decide, in some instances, to await the decision of a court of appeals,

we have found no authority holding that a trial court is required to wait – particularly after having

previously stayed the trial proceedings for almost an entire year. A trial court would have no idea

how long it might take for the appellate court to render its decision, and then, if the party moving

for the continuance decides to seek petition for review, the matter could be pending for years. 2


2
  As noted above, the Third Court of Appeals did ultimately render a decision, but that decision involved a remand,
thereby continuing the matter without a full resolution.

                                                       -5-
                                                                                    04-13-00075-CV


       A trial court cannot abuse its discretion by denying a motion for continuance in the absence

of authority to show it acted without reference to any guiding rules or principles. See McGrede,

131 S.W.3d at 197. Even if this court would have granted the continuance to await the results of

Henry v. Henry, the mere fact that this court in similar circumstances would use its discretionary

authority differently does not demonstrate that an abuse of discretion has occurred. Downer, 701

S.W.2d at 242. Accordingly, we hold that the trial court did not abuse its discretion by denying

the motion for continuance based on this ground. See McGrede, 131 S.W.3d at 197.

                                          Due Process

       It is possible that the denial of a motion for continuance is so arbitrary as to violate due

process. State v. Crank, 666 S.W.2d 91, 95 (Tex. 1984); see Ungar v. Sarafite, 376 U.S. 575, 589

(1964). Whether denial is so arbitrary as to violate due process depends on the circumstances of

the case. Crank, 666 S.W.2d at 95. Because we have held that the trial court did not abuse its

discretion by denying Henry’s motion for continuance, we hold the denial was not a violation of

due process. See id.

                                          CONCLUSION

      Based on the foregoing, we overrule Henry’s sole issue and affirm the trial court’s
judgment.



                                                 Marialyn Barnard, Justice




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