May-June 2012

Handling a due process contempt hearing

Cody Henson

Assistant District ­Attorney in Williamson ­County

The mere utterance of the word “contempt” strikes fear into the heart of attorneys. It brings to mind visions of Vinny Gambini and the Honorable Judge Chamberlain Haller exchanging verbal punches in the classic comedy My Cousin Vinny. We gnash our teeth as Mr. Gambini fumbles for words in front of the stoic judge and eventually finds himself held in contempt of court with bail set at $200.
    The fundamentals are the same, but the process would have played out differently in Texas. Imagine that Mr. Gambini is a Texas attorney and the Honorable Chamberlain Haller is a district court judge. As Mr. Gambini walks off the ledge of contempt, he is entitled to a personal recognizance bond, legal counsel, and a full due process hearing to determine his guilt or innocence.1 And who is going to handle the contempt hearing? Queue the attorney pro tem or special prosecutor! You, as that prosecutor, have now been tasked with the responsibility of learning the law, marshaling the facts, and presenting the case to a court during a due process hearing. So what are your responsibilities? What is going to be expected of you? Are you really going to have a hearing?
    In February 2012, I volunteered to do just such a job in a neighboring county. In performing my duties I found myself trying to navigate a complex process that is not clearly defined in any statute, caselaw, or learned treatise. Was it direct or constructive contempt? Civil or criminal contempt? What is the punishment range? What were the first steps I needed to take? Were we actually going to have a hearing? What if the contemnor wanted to plead guilty to the allegations? What authority did I have to resolve the case outside of a hearing? As I prepared for my duties I found the answers to some of these questions and learned some valuable lessons along the way. I hope that this article will somehow assist the next prosecutor or local attorney who is called upon to perform such a task.

What is the law?
The law on contempt of court is broad and often in conflict and hard to follow. For the sake of brevity this article will provide a brief overview on the law of contempt, focus specifically on what to do when an officer of the court is held in contempt, and finally, explain how to prepare for what is often called a “due process hearing.”
    To effectively prosecute a contempt of court charge it is important to have a basic understanding on the law as it relates to contempt. Section 21.002(a) of the Texas Government Code provides courts with the authority to punish for contempt. Contempt is a “broad and inherent power of a court.”2 “A court shall require that proceedings be conducted with dignity and in an orderly and expeditious manner and control the proceedings so that justice is done.”3 Contempt of court is broadly defined as “disobedience to or disrespect of a court by acting in opposition to its authority.”4 “Generally speaking, he whose conduct tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during litigation, or otherwise tends to impede, embarrasses or obstruct the court in discharge of its duties is guilty of contempt.5
    An attorney may be fined or imprisoned for misbehavior or for contempt of court.6 The punishment for contempt is a fine of up to $500, confinement in the county jail for up to six months, or both.7 Despite this punishment range, “an attorney may not be suspended or stricken from the rolls for contempt unless the contempt involves fraudulent or dishonorable conduct or malpractice.”8
    It is important to remember that contempt “is a tool that should be exercised with caution.”9 The Court of Criminal Appeals noted “[c]ontempt is strong medicine”—the alleged contemnor’s very liberty is often at stake—and so it should be used ‘only as a last resort.’”10

Civil or criminal ­contempt?
Contempt can roughly be classified as either civil contempt or criminal contempt.11 The question you need to resolve is why was the offending party held in contempt? Was it because he refused to comply with a court order, or is he being punished for some completed act which affronted the dignity of the court?
    It is important to distinguish between civil contempt and criminal contempt. Civil contempt is “remedial and coercive in nature” and seeks to “persuade the contemnor to obey some order of the court …” while criminal contempt is “punitive in nature.”12 In criminal contempt “the contemnor is being punished for some completed act which affronted the dignity and authority of the court.”13 The distinction between the two is also important to determine what rights are afforded to the accused. In a criminal contempt case the accused may exercise his or her constitutional right against self-incrimination.14

Direct or constructive contempt?
Next you need to determine if the contemptuous behavior was direct or constructive. Direct contempt occurs within the presence of the court.15 Constructive contempt occurs outside the court’s presence.16 In most cases a court maintains authority to immediately address and punish direct contemptuous conduct.17 This is based upon the premise that the court has direct knowledge of the contemptuous conduct and must expeditiously quash any disruption and maintain the order of the court;18 however, there is no requirement that a judge summarily punish such direct contemptuous conduct. The analysis is based upon exigency and “when the immediate need to maintain decorum in the courtroom dissipates, so too dissipates the judge’s power to punish the contemptuous conduct without first affording the contemnor notice and an opportunity to be heard.”19
    In a constructive contempt situation, a court may not summarily punish based upon alleged contemptuous conduct as there is no immediate need to quell the disruption.20 Due process requires that the accused party receive notice of the allegations and an opportunity to prepare a defense.21 As a notice requirement, the court must issue a valid show cause order or some equivalent legal process that provides the alleged contemnor with notice of the allegations and provides him with an opportunity to prepare a defense.22
    When an officer of the court is held in contempt, special procedures are triggered and must be followed. Section 21.002(d) of the Texas Government Code provides that an officer of the court who is held in contempt by a trial court “shall, on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence.”23 After the offending party is held in contempt, the trial court should refer the matter to the presiding judge of the administrative judicial region in which the alleged contempt occurred.24 The Texas Government Code requires that the presiding judge of the administrative judicial region assign a judge, other than the judge of the offended court, to determine the guilt or innocence of the officer of the court.”25

Special prosecutor or attorney pro tem?
When an officer of the court is held in contempt, courts often call upon the local or an adjoining district or county attorney’s office or members of the local bar to assist in prosecuting the contempt charge. This role is frequently referred to as a special prosecutor or an attorney pro tem. Although the terms are often used interchangeably, it is important to understand the distinction between the two. A special prosecutor is an attorney who is not a part of the district attorney’s office who is enlisted to assist the district attorney in a particular case.26 In appointing a special prosecutor it is not necessary that the district or county attorney be absent, disqualified, recused, or otherwise unable to perform her duties.27 Approval of the special prosecutor by the trial court is not required, and the “district attorney remains primarily responsible for the prosecution, control, and management of the case.”28
    Alternatively, in defining the role of an attorney pro tem, article 2.07 of the Texas Code of Criminal Procedure states in part that “[w]henever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.”29 If the appointed attorney is not an attorney for the state, he or she must file an oath with the clerk.30

My own journey
My journey began when the presiding judge of the court in which the attorney was held in contempt contacted our office for assistance in prosecuting the charge, which arose during a contested hearing on a motion to adjudicate. It was alleged that during the hearing the contemnor had engaged in conduct that disrespected the court. Due to the fact that members of the local district attorney’s office were present during the hearing and were now witnesses in the case, our office was called upon to assist in the prosecution of the contempt charge.
    Prior to writing this article I was not aware of the distinction between a special prosecutor and an attorney pro tem. I have now concluded that my role would most accurately be described as that of an attorney pro tem. Although the local district attorney’s office had been neither formally nor voluntarily recused, an analysis could lead to the conclusion that members of that office staff were key witnesses in the case and were therefore either “disqualified to act” or “otherwise unable to perform the duties of [the] office.31 Additionally the district attorney did not remain primarily responsible for the prosecution, control, or management of the case.32 To officially establish my role I filed a proposed order with the judge who had been assigned to hear the case which appointed me as “prosecutor pro tem.” Additionally I filed an oath of office and swore to it before beginning the proceedings. However, as an “attorney for the state” this does not appear to be required under article 2.07 of the Texas Code of Criminal Procedure.33
    On March 14, I packed my books into my Kia Spectra and headed out to a beautiful little town in the heart of the Texas Hill Country for the contempt hearing. In accordance with the Texas Government Code, a visiting judge had been appointed to oversee the hearing and determine the guilt or innocence of the alleged contemnor.34 I prepared a bench brief prior to the hearing and filed it with the district clerk and provided a copy to the visiting judge and the attorney for the contemnor. It provided a brief outline of the law, the facts of the case, and my arguments in favor of a finding of contempt.
    The facts of the case were quite simple. The contemnor and the State’s attorneys had engaged in a lengthy contested motion to adjudicate. The contemnor was upset with what he believed to be a failure by the State’s attorneys to honor a plea agreement and expressed this concern on several occasions.35 As the court proceeded to sentencing, the contemnor attempted to exit the courtroom and the court cautioned the contemnor by stating “[Mr. Contemnor], don’t leave please. We’re not finished and you’re being disrespectful to the court by walking out when I’m pronouncing sentence.” The contemnor noted he did not agree with the court, and the court again stated the need for the contemnor to be respectful. Instead of heeding the court’s advice, the contemnor interjected and said, “I think you should be respectful of what went on before we ever got here,” and informed the judge that he believed the court was not following the law.
    The contemnor then stated, “I feel like there is a little kangaroo court up here.” At this time the court provided the contemnor with the first of several warnings that his behavior was becoming contemptuous:  “[Mr. Contemnor, Mr. Contemnor], you’re getting really close now to contempt.” Before the court could finish the aforementioned statement the contemnor challenged the court to “hold me in contempt.” The following exchange demonstrates the court’s patience in cautioning the alleged contemnor about his conduct and provide him with an opportunity to retreat from his position.

The Court: “You want me to hold you in contempt, [Mr. Contemnor]?”
Contemnor: “Go right ahead.”
The Court: “You want to … you keep on. I will hold you in contempt of court.”
Contemnor: “Whatever. Do what you got to do.”
The Court: “Mr. Contemnor, you really … you really disappoint the court after—”
Mr. Contemnor: “You’re disappointing me, Judge.”
The Court: “Well, I’m sorry you’re disappointed.”
Mr. Contemnor: “I’m very disappointed in you.”36

The court, after providing the contemnor with at least two direct warnings and several opportunities to retreat from his contemptuous behavior, then continued with the sentencing. After sentencing, the record reflects that the contemnor stated, “Y’all can kiss my ass.”37 Witness interviews and testimony from the hearing revealed that this comment was directed at the assistant district attorneys seated in the jury box, but because this statement occurred in the presence of the court, the contemnor was immediately held in contempt and informed that a citation for contempt would be issued. The contemnor responded by stating, “Have fun in your court, Judge.”   
    As the hearing began I was a little uneasy about how to proceed. Although I had handled several hearings in the past, this was my first contempt proceeding. I was in a courtroom that brought back memories of To Kill a Mockingbird and the honorable lawyer Atticus Finch. The witness stand appeared to be only inches from the jury box and certainly looked as if it was not made with comfort in mind. The pews were wooden and the entire courthouse seemed to have remained unchanged since it was built in 1911. It was a beautiful building and a true testament to the rule of law, but somehow a cloud of nerves obscured my senses and I quickly realized that the hearing was about to begin.
    I had meticulously prepared this case from the very beginning—I also knew that I was about to ask the court to hold a fellow member of the bar in contempt of court. I understood both the personal and professional ramifications that such a finding could cultivate. However, I also felt a strong need to vindicate the dignity of the court. I felt it was my duty to represent the facts and to seek justice.
    Because the county had very few court reporters, one of whom was now diligently reporting this hearing, I had placed a copy of the transcript and a business records affidavit from the original proceedings on file with the district clerk at least 14 days before the hearing. I also provided a copy of the transcript to the attorney for the contemnor. This was probably not necessary, but I wanted to leave nothing at risk in the event of a sustained objection to the admissibility of the transcript. The defendant was not asked to enter a plea and under the assumption that we were proceeding with a bifurcated hearing, I began to call my witnesses.
     Although there were more than 12 people in the courtroom when the contemnor was held in contempt, I had narrowed my witness list to only two. The transcript provided the court with a good overview of the facts, but it was devoid of any articulation of voice inflection, physical gestures, or demeanor of the parties involved. I was cognizant that in reversing a conviction for contempt that was based purely upon affidavits the Supreme Court of the United States had recognized:
“A contempt holding depends in a very special way on the setting, and such elusive factors as the tone of voice, the facial expressions, and the physical gestures of the contemnor; these cannot be dealt with except on full ventilation of the facts. Those present often have a totally different impression of the events from what would appear even in a faithful transcript of the record.”38
    It was my belief that such demonstrative evidence could be fully developed only through live testimony. My goal was to provide the court with a personal, blow-by-blow account of the contemnor’s alleged behavior.
    My first witness was the assistant district attorney who was representing the State in the original proceeding. I offered the transcript of the proceeding and began my direct examination. We covered the nuts and bolts and through his testimony I attempted to paint a picture for the court. It was important to emphasize the tone of voice to demonstrate the disrespect that the contemnor showed to the tribunal.
    My next witness was a local probation officer who was sitting in the jury box and witnessed the entire proceeding. The testimony was essentially the same; however, this witness could testify to the comment of “y’all can kiss my ass.” This was important as it was this specific conduct for which the contemnor had been cited for contempt. It was also important, in candor to the presiding judge, to establish that this comment was directed at the assistant district attorneys and not the court.
    The attorney representing the contemnor did an excellent job in putting forth his client’s case. Although no plea had been entered, the contemnor took the stand and commendably accepted responsibility for his conduct. He emotionally testified that he was upset with the State for what he perceived to be a failure to honor a plea agreement. He communicated the emotion and circumstances that led him to engage in such conduct and expressed his concern that the viability of his law practice would be in jeopardy if he was assessed a long jail term.
    In the end the judge found the contemnor in contempt of court and sentenced him to 72 hours in the local county jail. The contemnor was immediately remanded to the custody of the sheriff and an order of “Contempt and Commitment” was filed with the local district clerk. It was over. The process had provided for a full ventilation of the facts and the punishment had been fair.
    At the end of the day I learned some valuable lessons. I learned that contempt is strong medicine, and when an officer of the court is held in contempt the law is designed to provide a venue that allows the contemnor to defend or explain his conduct. As attorneys we are accountable for our actions—it is important to remember that we are zealous advocates and in the heat of battle we must guard our words and remind ourselves that we have a duty to “so demean [ourselves] as to show respect for the dignity and authority of the court.”39 When we enter a courtroom it is incumbent that we remember “[a]n attorney is an officer of the court, and the relationship between the court and attorneys is reciprocal. In their proper spheres they both have certain rights, and the rights of one should be recognized and respected by the other. This is essential, if courts are to function in an orderly manner.”40
    I hope that the next attorney who is called upon to act as an attorney pro tem or special prosecutor finds this article helpful. If I can be of any assistance please do not hesitate to contact me at [email protected]. I will be happy to share any forms or documents that will help you in your pursuit of justice.

1 Tex. Gov’t Code § 21.002(d); see also Ex Parte Gordon, 584 S.W. 2d 686, 688 (Tex. 1995); Ex parte Krupps, 712 S.W.2d 144, 147 (Tex. Crim. App. 1986).
2 In re Reece, 341 S.W. 3d 360, 362 (Tex. 2011).
3 Tex. Gov’t Code §21.001(b).
4 Reece, supra at 364 citing Ex Parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding).
5 Ex Parte Norton, 191 S.W.2d 713, 714 (Tex. 1946).
6 Tex. Gov’t Code §82.061(a).
7 Tex. Gov’t Code §21.002(b).
8 Tex. Gov’t Code §82.061(b).
9 In re Reece, 341 S.W. 3d 360, 364 (Tex. 2011).
10 Reece, supra at 364 citing Ex parte Pink, 746 S.W.2d 758, 762 (Tex. Crim. App. 1988) (citing Wilson v. Johnston, 404 S.W.2d 870, 873 (Tex. Civ. App. —Amarillo 1996, orig. proceeding).
11 Ex parte Krupps, 712 S.W.2d 144, 149 (Tex. Crim. App. 1986): Reece, supra at 365.
12 Ex Parte Werblud, 536 S.W. 2d 542, 545 (Tex. 1976); see also Krupps, supra at 149.
13 In re Reece, 341 S.W. 3d 360, 365 (Tex. 2011); see also Werblud supra at 545.
14 Werblud, supra at 547.
15 Ex parte Gordon, 584 S.W. 2d 686, 688 (Tex. 1995); see also Ex parte Krupps, 712 S.W.2d 144 (Tex. Crim. App. 1986).
16 Gordon, supra at 688, see also Ex parte Chambers, 898 S.W. 2d 257, 259 (Tex. 1995); Ex parte Werblud, 536 S.W. 2d 542, 546 (Tex. 1976); Ex parte Krupps, 712 S.W.2d 144 (Tex. Crim. App. 1986).
17 Reece, supra at 364.
18 Gordon, supra at 688; see also Reece, supra at 364.
19 Ex parte Knable, 818 S.W.2d 811, 813, 811 (Tex. Crim. App. 1991).
20 Reece, supra at 365.
21 Id.
22 Gordon, supra at 688.
23 Tex. Gov’t Code §21.002(d).
24 Id.
25 Id.
26 Mai v. The State of Texas, 189 S.W. 3d 316, 319 (Tex. App. —Fort Worth 2006, pet ref’d, 2006).
27 Id.; see also Tex. Code of Crim. Proc. art. 2.07(a).
28 Mai, supra at 319.
29 Tex. Code of Crim. Proc. art. 2.07(a).
30 Tex. Code of Crim. Proc. art. 2.07(c); see also Mai supra at 319.
31 Tex. Code of Crim. Proc. art. 2.07(c); see also Mai supra at 319.
32 Mai supra at 319.
33 Tex. Code of Crim. Proc. art. 2.07(c)-(d).
34 Tex. Gov’t Code §21.002(c).
35 Reporter Record, Contested Motion to Request Adjudication at 91.
36 Id. at 93-94.
37 Id. at 94.
38 In re Little, 404 U.S. 553, 556, 92 S. Ct. 659, 661, 30 L. Ed. 2d 708 (1972) (Burger, C.J., concurring).
39 Norton, supra at 715-716.
40 Id.