May-June 2017

Contempt of court

Zack Wavrusa

Assistant County and District Attorney in Rusk County

Though contempt is certainly not as common as Hollywood makes it out to be, prosecutors should not be caught unaware of its ramifications.

Six years ago, I was a fresh-faced, baby prosecutor about to try his first case to a jury. It was a Class A resisting arrest case. I wasn’t sure how it was going to turn out, but I knew that nobody could call me unprepared. To this day, I remember putting my trial notebook together. I had tried to anticipate different arguments to the admissibility of my evidence, and I prepared to counter them by having a case or two on point for almost everything. One of the last things I put in my trial notebook was a copy of Texas Government Code §21.002(d).
    I included that statute because it made clear that an officer of the court (even a baby prosecutor like me) was entitled to a PR bond if held in contempt of court. Why did I think this statute ranked as important enough to be included in my trial notebook? I’d seen the movies, of course. If I found myself in the company of Joe Pesci from My Cousin Vinny, I was going to be prepared.
    I didn’t need a handy copy of that statute in my trial notebook that day, nor have I ever needed it since. Turns out, real-life lawyering doesn’t have quite as many contempt of court findings as Hollywood would lead us to believe. In fact, contempt comes up so rarely that it would be easy to simply forget about it. However, as most any prosecutor will tell you, as soon as you say something will never happen, it does.

What is contempt?    
The Texas Supreme Court defines contempt as “disobedience to or disrespect of a court by acting in opposition to its authority.” Conduct that tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during a litigation, or otherwise tends to impede, embarrass, or obstruct the court in discharge of its duties will be considered contempt. More specifically, contempt can be broken into two specific acts:
1)    an act that is disrespectful to the court, and
2)    an act that obstructs or tends to obstruct the proper administration of justice.
    Everyone reading this article has at least heard of a judge who got a little too big for his britches and ordered something outside the scope of his power. Because contempt issues arise so rarely, it’s easy to imagine a judge being unclear on the boundaries of his power in this area. The Texas Supreme Court has held that the ability to hold someone in contempt of court is a broad and “inherent power of the court,” and we can be thankful that the Court encourages lower courts to exercise their contempt power with discretion. The Court of Criminal Appeals has referred to contempt as “strong medicine” that should be used as a last resort only.
    The only statutory mention of contempt in Texas comes from §21.002 of the Government Code, which states only that a court “may punish for contempt.” Because the level of development for the statutory framework for contempt in Texas falls somewhere between sparse and nonexistent, we must look to common law for guidance.

Direct vs. constructive
Common law tells us that contempt may be “direct” or “constructive” (or indirect).
    Direct contempt occurs in the presence of a court. Here, the court must have direct knowledge of the behavior that constitutes contempt. A good example of direct contempt would be failing to rise upon the judge’s entrance into the courtroom. Any act that is disrespectful to the court or impedes its ability to conduct its business and occurs entirely in the court’s presence could be considered direct contempt.
    Conversely, constructive (also called indirect) contempt occurs outside the court’s presence. Constructive contempt generally arises from violation of a court order, but there are situations where a party or an attorney could engage in behavior that would warrant a judgment of constructive contempt. Acts of constructive contempt must “im-pede, embarrass, or obstruct the court in the discharge of its duties.” For example, in Ex parte Privitt, a criminal defendant was found in contempt for attempting to bribe prospective jurors outside the presence of the court. In Ex parte Murphy, the Court of Criminal appeals affirmed a judgment holding an attorney in constructive contempt for failing to attend a hearing and a trial. Constructive contemnors are entitled to more procedural safeguards than direct contemnors.

Criminal vs. civil
Contempt may be criminal or civil in nature. The distinction between the two does not turn on whether the underlying litigation is civil or criminal; rather, the nature of the court’s punishment dictates the nature of the contempt proceeding. To determine whether contempt is civil or criminal, we must determine the purpose of the contempt order.
    Contempt is civil when the purpose is “remedial and coercive in nature.” A civil contemnor “carries the keys to the jail cell in his or her pocket” because his confinement is conditioned on obedience with the court’s order. Once the civil contemnor has complied with the court’s order, the period of confinement should end. Under no circumstances should the period of confinement exceed the punishment range for criminal contempt outlined in Texas Government Code §21.002(a) or (b).
    Criminal contempt, on the other hand, is punitive. Criminal contemnors are punished for an act that “affronted the dignity and authority of the court.” The primary purpose of a criminal contempt proceeding is to vindicate the public authority. With criminal contempt, the punishment is “fixed and definite, and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts.” The punishment range for criminal contempt is a fine up to $500 or a jail term of up to six months, or both such a fine and jail term. Criminal contempt is considered a crime and can bar criminal prosecution for the same conduct. So, for example, if someone is held in contempt for lying in a deposition, that individual could not also be prosecuted for perjury. Unless the contemnor is an officer of the court (attorney, bailiff, clerk, court reporter, etc.), he is not entitled to a bond.
    In TDCAA’s original guide to contempt of court (available online at, Andrea Westerfeld, an assistant criminal district attorney in Collin County, pointed out that it is possible for a contempt order to contain both civil and criminal elements. A judge may jail a lawyer for three days for failing to comply with a discovery order and further order him to remain in jail until he complies. The first part of the sentence is unconditional (three days in jail for failing to comply with the court order) and therefore criminal in nature, while the second portion (staying in jail until discovery is provided) is designed to coerce the lawyer into complying with the court order and is thus civil in nature.

Varying due process requirements
The due process considerations for direct and constructive contempt are very different. In a direct contempt proceeding, the trial court may conduct a summary proceeding in which the alleged contemnor is not entitled to notice or a hearing. A contemnor who commits direct contempt is generally found to be in contempt of court immediately after committing the offending conduct and accordingly punished.
    That stands in pretty stark contrast to the due process requirements for constructive contempt. For those, the Court of Criminal Appeals has said that due process is satisfied when the contemnor is given notice, a hearing, and the opportunity to obtain an attorney. Due process requires “full and complete notification” of the charges alleged with a reasonable opportunity to meet the charges by defense or explanation.” A contempt order rendered without such adequate notification is void. Please note that you cannot accomplish full and complete notification by merely following the standard rules regarding service. Actual, personal knowledge of the contempt hearing must exist, or due process is denied. Do not assume that full and complete notification has occurred simply because a copy of the show-cause order was faxed to an attorney or because a citation was printed in the local paper.
    Constructive contemnors’ right to due process extends through the contempt hearing itself. Contempt proceedings in Texas are quasi-criminal, so they should conform as nearly as practicable to those in criminal cases. Because contempt proceedings are triggered by actions that defy the State’s authority and entail possible penal sanctions, Texas courts have consistently held that alleged constructive contemnors are entitled to procedural due process protections before they may be held in contempt. This means that contemnors have the right to be represented by an attorney and have the privilege against self-incrimin-ation.
    The U.S. Constitution’s Sixth Amendment right to a jury trial comes into play for contempt proceedings only when the punishment is “serious,” such as more than 180 days in jail; such a punishment may not be assessed unless there was a jury trial or a jury waiver. Section 21.002(b) of the Texas Government Code provides that punishment for a single act of contempt is a fine of not more than $500, confinement in the county jail for not more than six months, or both. Punishment within these limits is characterized as “petty.” A series of smaller punishments, which would ordinarily be petty, could be combined to amount to serious punishment.
    In cases of both direct and constructive contempt, a written order is required to commit the contemnor to jail confinement. Merely making a written notation on the docket sheet in addition to an oral order will not be considered a written order. The trial court’s failure to enter a written order of commitment will result in the contemnor being discharged from custody.

Evidence required to prove contempt
Because direct contempt occurs in the court’s presence and because a summary hearing satisfies due process concerns, proving direct contempt is a non-issue. Constructive contempt, on the other hand, requires evidence that some sort of disobedience or disrespect of the court has occurred.
    As stated before, an actual order is not always necessary. The contemnor in Ex parte Privitt was held in contempt for trying to bribe jurors outside the court’s presence. Obviously, a court is unlikely to have a standing order that prohibits the parties from bribing jurors. For cases like Privitt, the State would prove the act of contempt much like any ordinary criminal case: by calling witnesses to testify and offering exhibits. Because disrespect and disobedience of the court can occur in an incredible number of ways, there is no one-size-fits-all approach to proving them.
    A criminal contempt conviction for disobedience to a court order requires proof beyond a reasonable doubt of:
1)    a reasonably specific order;
2)    a violation of the order; and
3)    the willful intent to violate the order.
    For purposes of constructive contempt, the Texas Supreme Court has ruled that an oral order cannot support a finding of contempt because the State “cannot be allowed to operate under a system whereby its citizens may be punished for contempt for violation of an order, the exact terms of which exist solely in the memory of the trial judge and the movants for contempt.”

Writ process
Courts of appeals lack jurisdiction to review contempt orders on direct appeal. A party pursuing review of a contempt order involving confinement may file a writ of habeas corpus; a party seeking review of a contempt order that does not involve confinement may file a writ of mandamus.
    An original habeas corpus proceeding is a collateral attack on a contempt order. As such, the proceeding’s sole purpose is to determine whether the contemnor was afforded due process or if the order of contempt is void. A court will issue a writ of habeas corpus if the order underlying the contempt is void or if the contempt order itself is void. A contempt order is void if it is beyond the court’s power to enter it or if it deprives the relator of liberty without due process. Mandamus issues only when the mandamus record establishes both a clear abuse of discretion or the violation of a duty imposed by law and the absence of a clear and adequate remedy at law.

Contempt is incredibly rare, and any prosecutor could be forgiven for viewing it as the kind of thing not to worry about. However, as many seasoned prosecutors will tell you, as soon you forget about something, a situation will arise that will make you wish you hadn’t. Do yourself a favor and maintain a working knowledge of contempt. You won’t want to rely on a hazy recollection of My Cousin Vinny when something that “never happens” happens to you.

1  Tex. Gov’t. Code §21.002(d).

2  Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding).

3  Ex parte Norton, 144 Tex. 445, 191 S.W.2d 713, 714 (Tex. 1946).

4  Ex parte Krupps, 712 S.W.2d 144, 149 (Tex. Crim. App. 1986).

5  Ex parte Browne, 543 S.W.2d 82, 86 (Tex. 1976) (orig. proceeding).

6  Ex parte Pink, 746 S.W.2d 758, 762 (Tex. Crim. App. 1988) (quoting Willson v. Johnston, 404 S.W.2d 870, 873 (Tex. Civ. App.—Amarillo 1966, orig. proceeding)).

7  Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding).

8  In re Reece, 341 S.W.3d 360, 365 (Tex. 2011) (citing In re Bell, 894 S.W.2d 119, 127 (Tex. Spec. Ct. rev. 1995)).

9  Ex parte Krupps, 712 S.W.2d 144 (Tex. Crim. App. 1986); In re Chase, 468 F.2d 128, 132 (7th Cir. 1972).

10  Gordon at 688.

11  Reece at 365-66.

12  Norton, 191 S.W.2d 713, 714 (Tex. 1946).

13  Ex parte Privitt, 77 S.W.2d 663, 664 (Tex. Crim. App. 1934).

14  Ex parte Murphy, 669 S.W.2d 320, 321 (Tex. Crim. App. 1983).

15  Ex parte Werblud, 536 S.W.2d 542, 546 (Tex. 1976) (orig. proceeding).

16  Reece at 365.

17  Werblud at 545.

18  Reece at 365 (citing Werblud, 536 S.W.2d at 545).

19  Werblud at 545

20  Werblud at 545-46 (quoting Ex parte Hosken, 480 S.W.2d 18 (Tex. Civ. App.—Beaumont 1972)).

21  Id. at 546.

22  Tex. Gov’t Code §21.002(a). For municipal courts, the range is a fine of not more than $100, confinement in a county or city jail for not more than three days, or both. Tex. Gov’t Code §21.002(b).

23  United States v. Dixon, 509 U.S. 688, 696 (1993).

24  Ex parte Busby, 921 S.W.2d 389, 393 (Tex. App.—Austin 1996, pet. ref’d).

25  Officers of the court are entitled to a personal recognizance bond under Tex. Gov’t Code, §21.002(d).

26  In re Bell, 894 S.W.2d 119, 127-28 (Tex. Spec. Ct. rev. 1995).

27  Ex parte Krupps, 712 S.W.2d 144, 147 (Tex. Crim. App. 1986).

28  In re Houston, 92 S.W.3d 870, 876 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding) quoting Gordon at 688.

29  Ex parte Adell, 769 S.W.2d 521, 522 (Tex. 1989).

30  Ex parte Herring, 438 S.W.2d 801 (Tex. 1969).

31  See Ex parte Moore, 567 S.W.2d 523 (Tex. App.—Texarkana 1978, no pet.) (holding that posting a notice of the show cause hearing on contemnor’s front door was insufficient for due process purposes when contemnor received no personal notice); see also Ex parte Lackey, 522 S.W.2d 735 (Tex. App.—Dallas 1975, no pet.) (holding that when attorney for contemnor received notice two hours before the hearing but the contemnor received no personal notice of the hearing, due process was denied).

32  Deramus v. Thornton, 333 S.W.2d 824, 829 (Tex. 1960); Ex parte Scott, 123 S.W.2d 306, 311 (Tex. 1939).

33  Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983).

34  Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976).

35  Id.; see also Muniz v. Hoffman, 422 U.S. 454, 475-77 (1975) (holding that contemnors in serious contempt cases in the federal system have a Sixth Amendment right to a jury trial and examining the boundaries between serious and petty offenses).

36  Ex parte Sproull, 815 S.W.2d 250 (Tex. 1991) (orig. proceeding).

37  Tex. Gov’t Code §21.002(b).

38  In re Newby, 370 S.W.3d 463, 466 (Tex. App.—Fort Worth 2012, no pet.).

39  See Ex parte Griffin, 682 S.W.2d 261 (Tex. 1984) (holding that a contemnor ordered to jail for 30 days and fined $104,000 for 208 separate violations was entitled to a jury trial as the large penalties made it a “serious offense”).

40  Ex parte Calvillo Amaya, 748 S.W.2d 224 (Tex. 1988) (orig. proceeding); Ex parte Supercinski, 561 S.W.2d 482, 483 (Tex. Crim. App. 1977) (orig. proceeding).

41  In re Griffith, 434 S.W.3d 643, 646, (Tex. App.—Houston [1st Dist.] 2014, no pet.).

42  See In re Griffith, 434 S.W.3d 643, 646, (Tex. App.—Houston [1st Dist.] 2014).

43  Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995).

44  Ex parte Wilkins, 665 S.W.2d 760 (Tex. 1984).

45  Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex. App.—Dallas 2007, no pet.

46  Id.

47  Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig. proceeding).

48  Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding); In re Levingston, 996 S.W.2d 936, 937 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding).

49  See Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex. 1983) (orig. proceeding

50  Gordon, 584 S.W.2d at 688.

51  Ex parte Friedman, 808 S.W.2d 166, 168 (Tex. App.—El Paso 1991) (orig. proceeding).

52  Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994).