The quasi-criminal power of a court to hold a person in contempt is one of our most fundamental powers we have as judges. It is inherent – arising out of the very nature of the role of courts in our society. And it is essential to judicial independence and authority.1
Generally, judges are confronted with our contempt powers in two different scenarios. One is when our written orders are violated, and it becomes necessary to enforce them. The second is in connection with our obligation to manage our courtrooms in a manner to “require that proceedings be conducted with dignity and in an orderly and expeditious manner and control the proceedings so that justice is done.”2
Indirect or Constructive
Frequently judges see constructive contempt allegations in a family law context. Family law enforcement proceedings have been highly codified in Chapter 157 of the Family Code, which governs the enforcement procedures and remedies with respect to family law orders. While a variety of remedies for a violation of court order exist, contempt has been the primary enforcement remedy. Generally, Chapter 157 has codified the case law setting forth constitutional due process requirements, but the statute is specific on many procedural requirements, and should be followed very closely.
The second scenario in which judges encounter our contempt powers is in connection with our obligation to control the courtroom. The successful management of our courtrooms is key to insuring that justice is done in the proceedings brought before us. The power to hold a person in direct contempt is a critical tool for this purpose.
However, there are both precedental and statutory limitations on this power. Moreover, it is important to examine our motivations when considering whether to embark on a direct contempt finding.
Direct contempt occurs within the presence of the court, and the court knows firsthand all the facts constituting the contemptuous conduct.6
Depending on the exigencies of the situation, a court has full and complete powers to act immediately. When the court must act instantly to suppress a disturbance, violence or physical obstruction or disrespect to the court, the due process requirements of notice and hearing demanded in constructive contempt cases are not necessary.7 But, even if direct contempt is committed, the contemnor may be entitled to notice and a hearing if there is no exigent situation which requires the court to act immediately to quell the situation.8 Generally, if due process protections can be afforded, they must be.
There are even further restrictions on a court’s contempt powers when dealing with an officer of the court. The procedure for holding an officer of the court in contempt is set forth in TEX. GOV’T CODE §21.002(d).9 When an officer of the court is involved, a court may certainly use all of its powers, including contempt, to control immediate courtroom disturbances. But once the immediacy has passed, due process and the statute step in.
Under the statute, you become “the offended judge” and the court officer is entitled to
In addition to the court officer’s due process and statutory rights, the court must at all times keep in mind the litigant’s right to a fair trial.11 The court’s dealings with the attorney should not prejudice the litigant’s rights.
Civil vs. Criminal Contempt
The penalty in a civil contempt is until the order of the court has been complied with. It is not for a finite period, and potentially could be a life sentence, depending on the obstinacy of the contemnor and the will of the court. Of course, “inability to comply” with the court order is a defense, and it becomes more credible the longer the contemnor remains in jail. A coercive civil contempt order is void if the contemnor is unable to perform the condition for purging the contempt.13
When the contemnor complies with the court order, he or she is released from confinement, and the contempt is purged.
Civil vs. Criminal Contempt
It is permissible for the court to issue a “hybrid” order, combining both civil and criminal elements.15
Serious vs. Petty Offenses
The punishments for multiple acts of contempt may be aggregated. If the aggregated imprisonment for multiple contempt allegations would exceed six months, the offense is considered serious and the contemnor has an absolute right to a jury trial.18 However, if aggregated fines greater than $500 are contemplated, a case-by-case analysis must be made to determine if the offense is petty or serious.19
Currently, there is a split of authority among the courts of appeals as to when the characterization between serious and petty occurs. For example, in In re Brown, the Amarillo court of appeals concluded that punishment actually imposed determines whether the contempt is petty or serious, not the punishment possible.20 By contrast, at least two other courts of appeals have concluded that the characterization of the offense is determined by the pleadings and the possible punishment.21
It is a good idea to determine from the movant in advance of the hearing whether or not a punishment in the “serious” range is being sought. If it is, then it becomes the responsibility of the trial judge to advise the respondent of his or her right to a jury trial.22The right to a jury trial may be waived, but evidence of such waiver must be clear from the record.23
Disobedience or disrespect of a court by acting in opposition to its authority, justice and dignity constitutes contempt. The power of contempt allows a court to maintain control of court proceedings and enforce its orders. Courts have both inherent and statutory power to enforce their judgments or to punish contemptuous conduct by means of a contempt citation. Contempt is thought of as quasi-criminal, and because of this, numerous contempt orders have been invalidated on due process grounds. Accordingly, the contempt proceedings must be conducted in accordance with appropriate statutory and due process standards.
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1 Gompers v. Buck’s Stove and Range Co., 221 U.S. 418 (1911); see Ex parte Hughes, 759 S.W.2d 118 (Tex. 1988); Ex parte Browne, 543 S.W.2d 82 (Tex. 1976); Ex parte Daniels, 722 S.W.2d 707 (Tex. Crim. App. 1987)