A criminal trial date can feel like a fixed point on the calendar. If you do not have enough time, you may ask the court to move that date so you have more opportunity to prepare your case.
The framework behind trial delays
A continuance postpones a scheduled hearing or trial. Either the prosecution or the defense may seek one, and the Texas Code of Criminal Procedure permits it upon sufficient cause shown. Any delay may last only as long as necessary.
Some occur automatically by operation of law in circumstances specified by the Texas Code of Criminal Procedure. Others happen by agreement, typically submitted as a written motion where both sides consent and demonstrate good cause to the court.
All other postponements rest within the judge’s discretion, meaning no delay is granted as an absolute right. If the court denies a request, an appellate court will overturn that decision only if the judge abused their discretion and the refusal harmed the defense.
The grounds for a postponement
Not every inconvenience justifies more time. Texas law and court practice recognize a limited set of reasons:
- Absence of a material witness despite diligent efforts to secure attendance
- Late disclosure of evidence counsel has had no fair chance to examine
- Illness of the defendant, an attorney or a necessary witness
- Substitution of counsel shortly before trial
- Observance of a religious holy day, supported by an affidavit
Some justifications for a postponement also come with additional requirements. A second motion based on the same missing witness must show that no other source can provide the same testimony. In cases involving family violence, sexual assault or assault victims younger than 17, the judge must consider the delay’s effect on the victim if requested by the state’s attorney.
The steps toward proper filing
To begin a petition, you must submit the petition in writing. Someone with personal knowledge of the supporting facts, usually you or your attorney, must verify it under oath. The prosecution may answer with a controverting motion that disputes those sworn statements.
The verification is important because an oral or unsworn petition preserves nothing for appellate review. A judge retains the option to grant one as a matter of fairness, but you cannot challenge its denial in a higher court.
The timing of your motion also affects the standard the court applies. Doing so before the trial means you only need to demonstrate sufficient cause. Once testimony begins, however, you must identify an unexpected event that prevents the trial from continuing fairly.
If the court denies a request based on a missing witness or evidence, you must preserve the error for appeal. This typically requires an attorney to raise the matter again in a motion for a new trial, attaching an affidavit that details what the missing evidence or testimony would have shown.