Judge Davis: Contempt in the Court

Our first in a special series on contempt.
By Paul Davis, Senior District Judge 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 Contempt First, in situations when it is claimed that a written court order has been violated, the contemnor is entitled to full due process rights. Generally, this requires adequate notice to the contemnor and a fair hearing.³ On the one hand, appellate courts have said that the procedure in constructive contempt cases should conform as nearly as practical to proceedings in criminal cases, and that this type of contempt proceeding is quasi-criminal in nature.⁴ On the other hand, they have also recognized that contempt proceedings are not criminal within all the rules and definitions of criminal law. The standard to be applied is the standard of due process which requires that the contemnor be accorded notice and a fair hearing.⁵ 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. Direct Contempt “Oh, it is excellent to have a giant’s strength, but it is tyrannous to use it like a giant.” Shakespeare, Measure for Measure II, ii 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 release on personal recognizance, and a hearing before a different judge for “a determination of his [or her] guilt or innocence.”¹⁰ 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 Another important analytical distinction in contempt law is whether the contempt is “civil” or “criminal.” This classification is critical because it determines the procedural requirements which apply. The distinction here is on the nature and purpose of the penalty actually imposed, not whether the underlying case is civil or criminal. Of course, one cannot know the penalty until the end of the hearing, whereas the procedure to be followed must be known throughout the case, making this classification somewhat hard to apply for a trial court. It may be useful for a trial judge to require the movant in advance of the hearing to announce the punitive goal of the contempt action. Civil Contempt Civil contempt is frequently referred to as “coercive” contempt. A judgment of civil contempt is an effort to persuade the contemnor to obey some order of the court where such obedience will benefit the movant in the action for contempt. The imprisoned contemnor in a civil contempt case can avoid punishment by simply obeying the court’s order, and thus has been said to carry the keys to the prison in his or her own pocket.¹² 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 Continue Next Column>	When the contemnor complies with the court order, he or she is released from confinement, and the contempt is purged. Civil vs. Criminal Contempt Upon a finding of “criminal” contempt, the contemnor is sentenced to jail for a definite length of time. Criminal contempt is essentially punitive in nature “and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts.”¹⁴ Accordingly, criminal contempt is said to carry with it the greatest degree of procedural safeguards. It is permissible for the court to issue a “hybrid” order, combining both civil and criminal elements.¹⁵ Serious vs. Petty Offenses Another important classification of contempt is whether the offense is serious or petty. The reason this is important is that for serious offenses, the contemnor is entitled to a jury trial, but not for petty offenses.¹⁶ An offense is regarded as petty where the punishment does not exceed six months imprisonment or a $500 fine. Above that, it is regarded as serious.¹⁷ 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. For more information, contact: Paul Davis, Senior District Judge P.O. Box 5601 Austin, TX 78763 pauldavis@judgepauldavis.com www.judgepauldavis.com ____________________ 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) 2 TEX. GOV’T CODE § 21.001 3 Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976); Ex parte Daniels, supra 4 Ex parte Cardwell, 416 S.W.2d 382 (Tex. 1967); Ex parte Davis, 344 S.W.2d 153 (Tex. 1961); Ex parte Scott, 123 S.W.2d 306 (Tex. 1939); Ex parte Stanford, 557 S.W.2d 346 (Tex. Civ. App.—Houston [1st Dist.] 1977, orig. proceeding) 5 Ex parte Jackman, 663 S.W.2d 520 (Tex. App.—Dallas 1983, orig. proceeding) 6 Ex parte Chambers, 898 S.W.2d 257 (Tex. 1995); Ex parte Ratliff, 3 S.W.2d 406 (Tex. 1928) 7 In re Bell, 894 S.W. 2d 119 (Tex. Spec. Ct. Rev. 1995) 8 Ex parte Knable, 818 S.W.2d 811 (Tex. Crim. App. 1991) 9 “An officer of a 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. The presiding judge of the administrative judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the judge of the offended court to determine the guilt or innocence of the officer of the court.” TEX. GOV’T CODE § 21.002(d) 10 Ibid. 11 “In a case involving a lawyer's contemptuous conduct, a holding of contempt must be done in such a manner so to not prejudice the rights of the litigant who is represented by the contemptuous lawyer. If the trial judge decides to wait until the conclusion of the trial before making findings of contempt and assessing the punishment, he should note the offensive conduct at the time it occurs, and warn the lawyer in that respect.” Kilgarlin & Ozmun, Contempt of Court in Texas―What You Shouldn't Say to the Judge, 38 Baylor L. Rev. 291, 313-14 (1986) 12 See Ex parte Busby, 921 S.W.2d 389 (Tex. App.–Austin 1996, orig. proceeding) 13 Ex parte Rojo, 925 S.W.2d 654 (Tex. 1996) 14 Ex parte Hosken, 480 S.W.2d 18, 23 (Tex. Civ. App.—Beaumont 1972, orig. proceeding) 15 Ex parte Sanchez, 703 S.W.2d 955 (Tex. 1986); Ex parte Busby, supra) 16 Bloom v. Illinois, 391 U.S. 194 (1968); Ex parte Werblud, supra 17 Ex parte Werblud, supra 18 Ibid. 19 See Ex parte Werblud, supra ($1,000 fine held petty; no right to jury); Ex parte Griffin, 682 S.W.2d 261 (Tex. 1984) ($104,000 fine, $500 for each of 208 separate violations, held to be serious; entitled to a jury) 20 In re Brown, 114 S.W.3d 7 (Tex. App.—Amarillo 2003, orig. proceeding) 21 See Ex parte York, 899 S.W.2d 47 (Tex. App.—Waco 1995, orig. proceeding) (finding serious offense based on pleadings because party at risk of confinement for longer than six months); Ex parte Howell, 843 S.W.2d 241 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (stating that if confinement may exceed six months, offense is serious). 22 See Ex parte Griffin, supra 23 Ex parte Griffin, supra; Ex parte Suter, 920 S.W.2d 685 (Tex. App.—Houston [1st District] 1995, orig. proceeding)

Contempt

Our first in a special series on contempt.

By Paul Davis, Senior District Judge

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
Contempt
First, in situations when it is claimed that a written court order has been violated, the contemnor is entitled to full due process rights. Generally, this requires adequate notice to the contemnor and a fair hearing.³ On the one hand, appellate courts have said that the procedure in constructive contempt cases should conform as nearly as practical to proceedings in criminal cases, and that this type of contempt proceeding is quasi-criminal in nature.⁴ On the other hand, they have also recognized that contempt proceedings are not criminal within all the rules and definitions of criminal law. The standard to be applied is the standard of due process which requires that the contemnor be accorded notice and a fair hearing.⁵

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.

Direct Contempt

“Oh, it is excellent to have a giant’s strength,
but it is tyrannous to use it like a giant.”
Shakespeare, Measure for Measure II, ii

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

release on personal recognizance, and
a hearing before a different judge for “a determination of his [or her] guilt or innocence.”¹⁰

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
Another important analytical distinction in contempt law is whether the contempt is “civil” or “criminal.” This classification is critical because it determines the procedural requirements which apply. The distinction here is on the nature and purpose of the penalty actually imposed, not whether the underlying case is civil or criminal. Of course, one cannot know the penalty until the end of the hearing, whereas the procedure to be followed must be known throughout the case, making this classification somewhat hard to apply for a trial court. It may be useful for a trial judge to require the movant in advance of the hearing to announce the punitive goal of the contempt action.

Civil Contempt
Civil contempt is frequently referred to as “coercive” contempt. A judgment of civil contempt is an effort to persuade the contemnor to obey some order of the court where such obedience will benefit the movant in the action for contempt. The imprisoned contemnor in a civil contempt case can avoid punishment by simply obeying the court’s order, and thus has been said to carry the keys to the prison in his or her own pocket.¹²

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

Continue Next Column>

When the contemnor complies with the court order, he or she is released from confinement, and the contempt is purged.

Civil vs. Criminal Contempt
Upon a finding of “criminal” contempt, the contemnor is sentenced to jail for a definite length of time. Criminal contempt is essentially punitive in nature “and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts.”¹⁴ Accordingly, criminal contempt is said to carry with it the greatest degree of procedural safeguards.

It is permissible for the court to issue a “hybrid” order, combining both civil and criminal elements.¹⁵

Serious vs. Petty Offenses
Another important classification of contempt is whether the offense is serious or petty. The reason this is important is that for serious offenses, the contemnor is entitled to a jury trial, but not for petty offenses.¹⁶ An offense is regarded as petty where the punishment does not exceed six months imprisonment or a $500 fine. Above that, it is regarded as serious.¹⁷

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.

For more information, contact:
Paul Davis, Senior District Judge
P.O. Box 5601
Austin, TX 78763
pauldavis@judgepauldavis.com
www.judgepauldavis.com

____________________

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)
2 TEX. GOV’T CODE § 21.001
3 Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976); Ex parte Daniels, supra
4 Ex parte Cardwell, 416 S.W.2d 382 (Tex. 1967); Ex parte Davis, 344 S.W.2d 153 (Tex. 1961); Ex parte Scott, 123 S.W.2d 306 (Tex. 1939); Ex parte Stanford, 557 S.W.2d 346 (Tex. Civ. App.—Houston [1st Dist.] 1977, orig. proceeding)
5 Ex parte Jackman, 663 S.W.2d 520 (Tex. App.—Dallas 1983, orig. proceeding)
6 Ex parte Chambers, 898 S.W.2d 257 (Tex. 1995); Ex parte Ratliff, 3 S.W.2d 406 (Tex. 1928)
7 In re Bell, 894 S.W. 2d 119 (Tex. Spec. Ct. Rev. 1995)
8 Ex parte Knable, 818 S.W.2d 811 (Tex. Crim. App. 1991)
9 “An officer of a 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. The presiding judge of the administrative judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the judge of the offended court to determine the guilt or innocence of the officer of the court.” TEX. GOV’T CODE § 21.002(d)
10 Ibid.
11 “In a case involving a lawyer's contemptuous conduct, a holding of contempt must be done in such a manner so to not prejudice the rights of the litigant who is represented by the contemptuous lawyer. If the trial judge decides to wait until the conclusion of the trial before making findings of contempt and assessing the punishment, he should note the offensive conduct at the time it occurs, and warn the lawyer in that respect.” Kilgarlin & Ozmun, Contempt of Court in Texas―What You Shouldn't Say to the Judge, 38 Baylor L. Rev. 291, 313-14 (1986)
12 See Ex parte Busby, 921 S.W.2d 389 (Tex. App.–Austin 1996, orig. proceeding)
13 Ex parte Rojo, 925 S.W.2d 654 (Tex. 1996)
14 Ex parte Hosken, 480 S.W.2d 18, 23 (Tex. Civ. App.—Beaumont 1972, orig. proceeding)
15 Ex parte Sanchez, 703 S.W.2d 955 (Tex. 1986); Ex parte Busby, supra)
16 Bloom v. Illinois, 391 U.S. 194 (1968); Ex parte Werblud, supra
17 Ex parte Werblud, supra
18 Ibid.
19 See Ex parte Werblud, supra ($1,000 fine held petty; no right to jury); Ex parte Griffin, 682 S.W.2d 261 (Tex. 1984) ($104,000 fine, $500 for each of 208 separate violations, held to be serious; entitled to a jury)
20 In re Brown, 114 S.W.3d 7 (Tex. App.—Amarillo 2003, orig. proceeding)
21 See Ex parte York, 899 S.W.2d 47 (Tex. App.—Waco 1995, orig. proceeding) (finding serious offense based on pleadings because party at risk of confinement for longer than six months); Ex parte Howell, 843 S.W.2d 241 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (stating that if confinement may exceed six months, offense is serious).
22 See Ex parte Griffin, supra
23 Ex parte Griffin, supra; Ex parte Suter, 920 S.W.2d 685 (Tex. App.—Houston [1st District] 1995, orig. proceeding)