By Andrea L. Westerfeld
Assistant County & District Attorney in Ellis County
Television has taught us that with the magic words “You’re in contempt!” and the bang of a gavel, the offending speaker 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 need to be aware of the basic procedural requirements of contempt law.[1]
What type of contempt are you dealing with?
Contempt of court generally means disobedience or disrespect of a court.[2] It is considered “strong medicine” and should be used only as a last resort. The first question when looking at any issue for contempt of court is what type of contempt is involved. This will affect every other question that you will deal with, from what notice is required to what penalty can be assessed. Contempt may be either direct or constructive, and either civil or criminal.
Whether contempt is direct or constructive depends on whether it happened in front of the court. Direct contempt involves disobedience or disrespect occurring in the court’s presence. This is the type most familiar to us from television. If the judge directly witnessed the offensive action, he or she may immediately punish the violator. Direct contempt stems directly from the court’s inherent power to punish violations in its presence.[3]
By contrast, constructive contempt involves disobedience that occurs outside of the court’s presence. This most often involves failure to comply with a court order, but it can include any act that impedes, embarrasses, or obstructs the court in the discharge of its duties.[4] If it occurred outside the court’s presence, this type of contempt requires witnesses to be proved. The court is thus required to give the contemnor written notice, hold a hearing, and give the contemnor the opportunity to call witnesses and defend herself against the charges.[5]
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 might stem 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.[6]
Civil contempt is also known as “coercive” or “remedial” contempt[7] because its purpose 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.”[8]
Criminal contempt, on the other hand, is also known as “punitive” contempt because it seeks to punish a violation.[9] A 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.
Prosecutors should be particularly aware of criminal contempt, as it is considered a crime and can thus bar prosecution for the same conduct.[10] 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.[11] The State should charge dates different from the contempt order to 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.[12]
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 material is turned over immediately—is criminal contempt, while the conditional portion of the sentence—where the contemnor remains in jail only until the discovery is provided—is civil contempt.
What kind of due process requirements apply to contempt?
No notice is required for direct contempt, whether civil or criminal, unless it is assessed against an officer of the court.[13] This is due to the court’s “inherent power to punish” for actions occurring before it, and because the contempt immediately follows offending behavior. This is why a judge can immediately hold a person in contempt and order him jailed or fined for something such as causing a disruption in the courtroom.
However, under Tex. Gov’t Code §21.002(d), if the contemnor is an officer of the court, he has special additional protections, even for direct contempt. Officers of the court include attorneys, bailiffs, clerks, court reporters, or other similar officials. An officer of the court may not be held in direct contempt immediately but instead 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.
Constructive contempt requires written notice of how, when, and by what means the party committed the alleged contempt.[14] 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 home[15] or to his attorney,[16] serving notice by publication under the Rules of Civil Procedure,[17] or even orally notifying him[18] 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.[19] The key factor is that notice must be “reasonable.”[20]
Due process must also be satisfied at the contemnor’s hearing. Contempt proceedings, including for civil contempt, are quasi-criminal in nature because imprisonment is a possibility. Thus, they must comply with criminal standards of due process.[21] A person is entitled to counsel at a contempt hearing and has the right against self-incrimination.[22] 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.[23] Serious punishment is considered 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.”[24] Finally, the hearing requirement may be satisfied by affidavits.[25] 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.
How do you prove 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, unless[26] three elements are satisfied:
1) a reasonably specific order;
2) a violation of the order; and
3) the willful intent to violate the order.[27]
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 the person knows exactly what she must do to comply with it. Some courts have held that an oral order is never sufficiently specific and thus only a written court order may support a constructive contempt finding.[28] An oral order may support a direct contempt finding, but it must still be clear what the court has ordered the person to do.[29]
Noncompliance with an unambiguous order of which a person has notice raises the inference that the violation was willful.[30] But a person is in contempt only if he has the ability to comply with the court’s order but chooses not to.[31] 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.[32] 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.
What is the punishment for being held in contempt?
Under Tex. Gov’t Code §21.002(b) criminal contempt in county or district court is subject to a maximum fine of $500, confinement in county jail for not more than six months, or both. In a justice or municipal court, under Gov’t Code §21.002(c), the limit is $100 or three days in city jail. This limit is per violation, meaning a court could issue a higher punishment if there was more than one violation of an order.[33] A court may opt to have the punishment for multiple violations served consecutively or concurrently.[34] But while the fines might well stack indefinitely, confinement is limited to no more than 18 months total for issues arising out of the same matter under Gov’t Code §21.002(h)(1).
In civil contempt, under Gov’t Code §21.002(h)(2), the maximum confinement is the lesser of 18 months or the period until the person complies with the court order. That means that as soon as the person complies with the order, he should be released, but he cannot be confined more than 18 months total for a single violation even if he never complies. But the statute does not contain any limit on the fines that could be assessed in a civil contempt case.[35]
Is an appeal of a contempt finding possible?
There is no appellate process for contempt orders, but a contemnor may seek relief through a writ of habeas corpus.[36] A reviewing court may not reweigh the burden of proof, but rather 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.[37]
A contempt order is beyond the court’s power if it violates the Texas Constitution.[38] Notably, the 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, to failure to pay child support or a criminal fine. In both cases, the failure is considered failure of a legal duty, not a “debt.”[39]
If a person is held in contempt but not imprisoned, then he may be able to seek relief through a writ of mandamus.[40] The standard is similar to a writ—the contemnor must show that he is unquestionably entitled to relief.
Anything else to remember?
A person may not be released on any sort of bond pending review of a contempt order.[41] Because there is no appeal, there cannot be an appeal bond. The only form of appeal is a writ, but a writ requires illegal confinement. If the trial court permits a bond, then the person is no longer illegally confined, and a writ is not appropriate. However, if the appellate court actually issues a writ, it can order the contemnor released on bond pending the conclusion of its hearing.
A written order is required before a person may be confined for contempt, direct or constructive.[42] If the contempt is civil, the order must clearly lay out what is required to purge the contemnor of contempt. But the court may order the person detained for a reasonable time while the written order is prepared.
Finally, remember that contempt orders must be carefully worded. If an order requires a person to pay a single lump sum for multiple violations, then the entire order is void if even one of those acts is found not to be a proper basis of contempt.[43] However, if the order lists an amount for each individual violation, then an improper violation could simply be struck and the person required to pay the remaining amount.
To sum it all up
With luck, you will never have to use the information from this article. But if you do find yourself involved in a contempt proceeding, there are a few questions that 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” or “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 is far from an exhaustive study of contempt, but I hope it will provide a good base of knowledge. Whether you are contemplating courses of actions, you become involved in a hearing at a judge’s request, or you hear those magic words (“You’re in contempt”) yourself, I hope this article will help you find the information you need.
[1] This article is adapted from an article of the same title that I wrote that appeared in the May–June 2008 edition of The Prosecutor journal. My hope is, like a fine wine, it has improved with time!
[2] In re Luther, 620 S.W.3d 715, 721 (Tex. 2021).
[3] Ex parte Gordon, 584 S.W.2d 686 (Tex. 1979).
[4] In re Reece, 341 S.W.3d 360, 366 (Tex. 2011).
[5] Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995).
[6] Luther, 620 S.W.3d at 721.
[7] In re Dotson, 76 S.W.3d 393, 395 n.3 (Tex. Crim. App. 2002); see also In re Paul, 698 S.W.3d 568, 569 (Tex. 2024).
[8] Shillitani v. United States, 384 U.S. 364, 368 (1966).
[9] Dotson, 76 S.W.3d at 395 n.3.
[10] United States v. Dixon, 509 U.S. 688, 696 (1993); Ex parte Rhodes, 974 S.W.2d 735, 740-42 (Tex. Crim. App. 1998).
[11] At least one court has suggested that criminal nonsupport and criminal contempt involve sufficiently separate elements so as to not run afoul of double jeopardy. See 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). It may be worth arguing a distinction to Rhodes, but alleging separate dates is the safer option.
[12] Ex parte Busby, 921 S.W.2d 389, 393 (Tex. App.—Austin 1996, pet. ref’d).
[13] Ex parte Krupps, 712 S.W.2d 144 (Tex. Crim. App. 1986); see also In re Hesse, 552 S.W.3d 893, 897 (Tex. App.—Amarillo 2018, no pet.).
[14] Chambers, 898 S.W.2d at 261; see also In re Moreno, 328 S.W.3d 915, 918 (Tex. App.—Eastland 2010, no pet.).
[15] In re Gabrielova, 527 S.W.3d 290, 295 (Tex. App.—El Paso 2016, no pet.).
[16] In re Lozano, 696 S.W.3d 222, 229-30 (Tex. App.—San Antonio 2024, no pet.).
[17] Ex parte Moore, 567 S.W.2d 523, 526 (Tex. App.—Texarkana 1978, no pet.).
[18] Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988).
[19] Ex parte Hodge, 611 S.W.2d 468, 469 (Tex. App.—Dallas 1980, no pet.).
[20] See, e.g., In re Gabrielova, 527 S.W.3d 290, 295 (Tex. App.—El Paso 2016, no pet.); Moreno, 328 S.W.3d 915, 918 (Tex. App.—Eastland 2010, no pet.).
[21] Ex parte Gonzales, 945 S.W.2d 830, 836 (Tex. 1997).
[22] Id.; Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976).
[23] Werblud, 536 S.W.2d at 547. An officer of the court does not have a special entitlement to a jury trial. Hesse, 552 S.W.3d at 900-901.
[24] Ex parte Griffin, 682 S.W.2d 261, 262 (Tex. 1984).
[25] Fahle v. Cornyn, 231 F.3d 193, 196 (5th Cir. 2000); see also In re Van Orden, 559 S.W.2d 805, 806 (Tex. Crim. App. 1977).
[26] Ex parte Taylor, 807 S.W.2d 746, 748 (Tex. Crim. App. 1991).
[27] Luther, 620 S.W.3d at 721; Chambers, 898 S.W.2d at 259.
[28] Ex parte Wilkins, 665 S.W.2d 760 (Tex. 1984).
[29] Jacobs, 664 S.W.2d at 364.
[30] Chambers, 898 S.W.2d at 261.
[31] In re Gawerc, 165 S.W.3d 314, 315 (Tex. 2005).
[32] Chambers, 898 S.W.2d at 261; see also In re D.L., 641 S.W.3d 873, 890 (Tex. App.—Fort Worth 2022, no pet.).
[33] Rosser v. Squier, 902 S.W.2d 962 (Tex. 1995) (noting maximum punishment of $3,000 for six violations).
[34] In re B.G.B., 580 S.W.3d 310, 316 (Tex. App.—Tyler 2019, no pet.).
[35] In re Mittelsted, 661 S.W.3d 639, 656 (Tex. App.—Houston [14th Dist.] 2023, no pet.).
[36] In re Henry, 154 S.W.3d 594, 596 (Tex. 2005).
[37] Chambers, 898 S.W.2d at 259-60; B.G.B., 580 S.W.3d at 316.
[38] Henry, 154 S.W.3d at 96.
[39] Id.
[40] Rossier, 902 S.W.2d 962; In re Cisneros, 487 S.W.3d 237, 241 (Tex. App.—El Paso 2015, no pet.).
[41] Ex parte Eureste, 725 S.W.2d 214, 216 (Tex. Crim. App. 1986).
[42] Ex parte Barnett, 600 S.W.2d 252, 256 (Tex. 1980).
[43] Henry, 154 S.W.3d at 598; see also Mittelsted, 661 S.W.3d at 655.