The Prosecutor, May-June 2008, Volume 38, No. 3

A prosecutor’s guide to contempt of court

2008
Contempt is rarer in real life than in TV courtrooms, so many prosecutors have never handled such a case. Here’s a primer on this procedure-heavy piece of law.

Television has taught us that with the magic words “You’re in contempt!” and the bang of a gavel, the offending person may be found in contempt for non-speech conduct and is hauled away by a bailiff to sweat out a night in jail, and order is magically restored to the courtroom. The actual practice of contempt is, of course, not quite as seen on TV. In most courtrooms, contempt is much more rarely seen, and it entails more procedure than many think. Whether faced with the threat of contempt for actions in court or asked by the judge to assist in contempt procedures for a defiant witness, prosecutors should be aware of the basic procedural requirements of contempt law.

Classification

What sort of notice is required? Must a hearing be held? What rights does the accused have? Can you appeal? The answers to these questions depend on what type of contempt is alleged. Contempt may be either direct or constructive, and either civil or criminal.
Direct vs. constructive contempt. The type of contempt most often featured on television is direct contempt, which involves disobedience or disrespect occurring in the court’s presence. Because the judge directly witnessed the offensive action, he may immediately punish the violator. Direct contempt stems from the court’s inherent power to punish violations in its presence.1

By contrast, constructive contempt involves disobedience which occurs outside of the court’s presence, such as failure to comply with an order. Because it occurred outside of the court’s presence, this type of contempt requires witnesses to be proven. The court is thus required to give the contemnor written notice, hold a hearing, and afford the contemnor the opportunity to call witnesses and defend herself against the charges.2
Civil vs. criminal contempt. The most important classification of contempt is civil or criminal. Despite the name, this classification has nothing to do with the underlying case. Civil contempt may occur in a murder trial as easily as criminal contempt stems from a divorce. Rather, the classification is dependent on the purpose of the contempt: Civil contempt seeks to correct a violation, while criminal contempt punishes the violator.

Civil contempt is also known as “coercive” or “remedial” contempt because it seeks to remedy the violation of a court order.3 The purpose of the contempt is to persuade the contemnor to obey a previous order. This is the classic situation of a witness being jailed until he agrees to testify. The judge may assess a fine, imprisonment, or both, and the sentence may be determinate or open-ended. The only requirement is that the contempt is conditional—the contemnor may escape the sentence by complying with the court order. In this way, the contemnors are said to carry “the keys of their prison in their own pocket.”4

Criminal contempt, on the other hand, is also known as “punitive” contempt because it seeks to punish a violation.5 The lawyer fined for swearing in court is an example of criminal contempt. It is unconditional—the punishment stands regardless of what the contemnor may later do to comply with the court order. Criminal contempt thus requires due process and a higher standard on appeal because of this punitive nature. Criminal contempt in Texas is punishable by a maximum fine of $500 and confinement for no more than six months.6 But each violation of a court order may be punished, so a lawyer could, for example, be sentenced to a $500 fine for each day he violated a discovery order.

Prosecutors should be particularly aware of criminal contempt, as it is considered a crime and can thus bar prosecution for the same conduct.7 If, for example, a person is found in criminal contempt for failure to pay child support, the State may not be able to prosecute him for criminal nonsupport for the same instances of failing to pay.8 The State should charge different dates than the contempt order to be sure not to run afoul of double jeopardy. Similarly, a person held in contempt for lying to the court may not subsequently be prosecuted for perjury for the same lie.9

It is possible for a contempt order to be both civil and criminal if it contains elements of each. For example, a judge may jail a lawyer for three days for failing to comply with a discovery order and order him to remain in jail until he complies. The initial unconditional sentence—confinement for three days even if discovery is given immediately—is criminal contempt, while the conditional portion of the sentence—where the contemnor only remains in jail until the discovery is provided—is civil contempt.

Requirements of due process

No notice is required for direct contempt, whether civil or criminal, unless it is assessed against an officer of the court.10 This is due to the court’s “inherent power to punish” for actions occurring before it and because the contempt immediately follows offending behavior. But constructive contempt requires written notice of how, when, and by what means the party committed the alleged contempt.11 This notice can be in the form of a motion for contempt, a show-cause order, or any other equivalent process. Furthermore, because this is a due process issue, merely following the standard rules of service is not sufficient. Sending a notice to the defendant’s home12 or to his attorney,13 serving notice by publication under the Rules of Civil Procedure,14 or even orally notifying him15 is not sufficient if the defendant can show he had no personal knowledge of the setting and was not purposely avoiding service.

The courts do not appear to have addressed precisely how much notice is required. The only opinions that deal with a specific timeframe focus on failure to pay child support, which has its own 10-day notice requirement. In other situations, as little as three days’ notice has been held sufficient.16

Due process must also be satisfied at the contemnor’s hearing. Contempt proceedings are quasi-criminal in nature—that’s true even for civil contempt because imprisonment is a possibility; thus they must comply with criminal standards of due process.17 A person is entitled to counsel at a contempt hearing and has the right against self-incrimination.18 But there is no inherent right to a jury trial. A person held in civil contempt has no right to a jury trial, and the right exists in cases of criminal contempt only if “serious” punishment is imposed.19 Serious punishment is confinement for more than six months or a fine greater than $500. This determination is cumulative, so a series of smaller sentences for multiple violations can be combined to amount to a “serious punishment.”20 Finally, the hearing requirement may be satisfied by affidavits.21 The court is required to give the contemnor “a meaningful opportunity” to explain his behavior, but it is not required to hold a live hearing.

Proof of contempt

Although the court’s power to punish through contempt is broad, contempt is meant to be exercised rarely and is presumed not to exist.22 Three elements must be satisfied to prove contempt: 1) a reasonably specific order, 2) a violation of the order, and 3) the willful intent to violate the order.23 To be specific enough to support a constructive contempt finding, an order must spell out the details of compliance in clear, unambiguous terms so that a person knows exactly what she must do to comply with it. Some courts have held that an oral order is never sufficiently specific; thus, only a written court order may support a constructive contempt finding.24 An oral order may support a direct contempt finding, but it must still be clear what the court has ordered the person to do.25

Noncompliance with an unambiguous order of which a person has notice raises the inference that the violation was willful.26 But a person is in contempt only if he has the ability to comply with the court’s order but chooses not to.27 A person may not, for example, be jailed for failing to turn over property not in his possession. But for this exception to apply, the inability to comply must be involuntary.28 If a person puts himself in a position where he is unable to comply with the order, then he may still be held in contempt.

Appeal

There is no appellate process for contempt orders, but a contemnor may seek relief through a writ of habeas corpus.29 A writ will issue only if the contempt order is void, meaning it is beyond the court’s power or the contemnor was not afforded due process. A contempt order is beyond the court’s power if it violates the Texas Constitution. Notably, the Texas Constitution prohibits imprisonment for debt, so a contempt order based solely on a failure to pay a debt is void. This does not apply, however, if the failure is to pay child support or a criminal fine. In both cases, this is considered failure to perform a legal duty, not failure to pay a “debt.” If a person is held in contempt but not imprisoned, then he may be able to seek relief through a writ of mandamus.30 The standard is similar to a writ—the contemnor must show that he is unquestionably entitled to relief.

Other provisions

A person may not be released on any sort of bond from a contempt order.31 If the trial court permits a bond, then the person is no longer illegally confined and a writ will not issue. But if the Court of Criminal Appeals issues the writ, then it can order the contemnor released on bond pending the conclusion of its hearing.

There is a special provision, however, for officers of the court held in contempt;32 it applies to all four types of contempt. Officers of the court include attorneys, bailiffs, clerks, court reporters, and other similar officials. An officer of the court must be released on a personal recognizance bond pending a hearing to determine his guilt or innocence. He is also entitled to a hearing in front of a judge other than the offended judge. The presiding judge of the administrative district in which the contempt occurred must appoint another district judge to preside over the hearing. This is the only time a court other than the offended court is legally authorized to assess contempt. Because contempt is part of the inherent powers of the court, a court is otherwise not authorized to find a person in contempt for violating another court’s order.

A written order is required before a person may be confined for contempt, direct or constructive.33 If the contempt is civil, then the order must clearly lay out what is required to purge himself of contempt. But the court may order the person detained for a reasonable time while the written order is prepared.

Conclusion

With luck, you will never have to use the information from this article. But if you do find yourself involved in a contempt proceeding, the following questions can help you quickly get a handle on the situation:
•    Did the offensive behavior happen in front of the judge? Is the offender an officer of the court, meaning an attorney, bailiff, court reporter, etc.? If your answers are “no” and “yes,” respectively, then you need to fulfill all due process requirements.
•      Was there a court order specific enough to support a finding of contempt?
•      Did the offender have the ability to comply with the order? If not, did the offender put herself in the position of not being able to comply?
•    Did the offender receive personal notice of the contempt charge and the ability to defend against it in some form?

This article is far from an exhaustive study of contempt, but it provides a good base of knowledge. Whether you are contemplating courses of action, have become involved in a hearing at a judge’s request, or hear those magic words—“you’re in contempt”—yourself, I hope this information will guide your next move.

Endnotes

1 Ex parte Gordon, 584 S.W.2d 686 (Tex. 1979).
2 Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995).
3 In re Dotson, 76 S.W.3d 393, 395 n.3 (Tex. Crim. App. 2002).
4 Shillitani v. United States, 384 U.S. 364, 368 (1966).
5 Dotson, 76 S.W.3d at 395 n.3.
6 Tex. Gov’t Code § 21.002(b). For municipal and justice courts, the maximum is three days or $100.
7 United States v. Dixon, 509 U.S. 688, 696 (1993); Ex parte Rhodes, 974 S.W.2d 735, 740-42 (Tex. Crim. App. 1998).
8 This issue is not settled at law. It has been suggested that criminal nonsupport and criminal contempt involve sufficiently separate elements so as to not run afoul of double jeopardy. See, e.g., State v. Landrum, No. 05-98-01226-CR, 2000 WL 280317, at *1 (Tex. App.—Dallas, Mar. 16, 2000, no pet.) (not designated for publication).
9 Ex parte Busby, 921 S.W.2d 389, 393 (Tex. App.—Austin 1996, pet. ref’d).
10 Ex parte Krupps, 712 S.W.2d 144 (Tex. Crim. App. 1986).
11 Chambers, 898 S.W.2d at 261; see also In re Acceptance Ins. Co., 33 S.W.3d 443, 448-49 (Tex. App.—Fort Worth 2000, no pet.).
12 Ex parte Moore, 567 S.W.2d 523, 526 (Tex. App.—Texarkana 1978, no pet.).
13 Ex parte Lackey, 522 S.W.2d 735, 735-36 (Tex. App.—Dallas 1975, no pet.).
14 Moore, 567 S.W.2d at 526.
15 Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988).
16 Ex parte Hodge, 611 S.W.2d 468, 469 (Tex. App.—Dallas 1980, no pet.).
17 Ex parte Gonzales, 945 S.W.2d 830, 836 (Tex. 1997).
18 Id.; Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976).
19 Werblud, 536 S.W.2d at 547.
20 Ex parte Griffin, 682 S.W.2d 261, 262 (Tex. 1984).
21 Fahle v. Cornyn, 231 F.3d 193, 196 (5th Cir. 2000).
22 Ex parte Jacobs, 664 S.W.2d 360, 364 (Tex. Crim. App. 1984).
23 Chambers, 898 S.W.2d at 259; see also Rhodes, 974 S.W.2d at 740.
24 Ex parte Wilkins, 665 S.W.2d 760 (Tex. 1984).
25 Jacobs, 664 S.W.2d at 364.
26 Chambers, 898 S.W.2d at 261.
27 In re Gawerc, 165 S.W.3d 314, 315 (Tex. 2005).
28 Ex parte Sanchez, 703 S.W.2d 955, 959 (Tex. 1986).
29 In re Henry, 154 S.W.3d 594, 596 (Tex. 2005).
30 Kidd v. Lance, 794 S.W.2d 586, 587 (Tex. App.—Austin 1990, no writ).
31 Ex parte Eureste, 725 S.W.2d 214, 216 (Tex. Crim. App. 1986).
32  Tex. Gov’t Code, § 21.002(d).
33  Ex parte Barnett, 600 S.W.2d 252, 256 (Tex. 1980).