In Chambers, Spring 2009


By Judge Paul Davis
In part two of this series, published in the Winter 2009 issue of In Chambers, we explored various *due process* requirements in the indirect contempt proceeding. We focused on the underlying order, the requirements of notice to the respondent, and the necessity of a hearing. In this Part III, we will explore additional due process obligations in the contempt hearing, including the right to counsel and jury trial, the burden of proof, defenses, and attorneys fees. The time has come… When we last tuned in, the respondent was missing. Despite being served with a clear and timely notice of the contempt hearing, the respondent failed to show up for the hearing. In order to persuade respondent to appear, you issued a capias, or writ of attachment, for the arrest of the respondent. This capias has now been executed, and there in court before you appears the respondent, the movant and her attorney. At this point, you must give the appropriate warnings to the respondent, including right to counsel and right to a jury trial. Right to Counsel As in criminal cases, due process requires the right to assistance of counsel in contempt cases.1 Family Code – Right To Counsel The first thing the court must do in a contempt proceeding is determine if incarceration “is a possible result of the proceedings.”2 What "the proceedings" are is not answered in the statute. What if movant only requests a suspended commitment or probation at the particular hearing; is an indigent respondent not entitled to an appointed attorney until the hearing on whether a term of the suspension or probation has been violated? No cases have been found which clarify this issue. The court must notify an unrepresented respondent of his or her right to an appointed attorney if he or she is indigent. If respondent claims indigency and asks for an attorney, the court conducts an inquiry into the respondent’s indigency.3 If the court finds indigency, an attorney shall be appointed unless the court determines the respondent will not be incarcerated as a result of the proceedings. Failure to follow this procedure deprives the court of authority to hold a respondent in contempt.4 Respondent’s ability to borrow money from relatives to hire an attorney is not a factor to measure a claim of indigency.5 The appointed attorney is entitled to 10 days to prepare for the hearing unless respondent is in custody, in which case it is five days from the time the respondent was arrested. The times may be shortened or extended by a written waiver.6 General Cases - Right To Counsel The procedure set out in Family Code, Section 157.163 is largely a codification of a series of cases examining the constitutional due process right to counsel.7 The Ft. Worth Court of Appeals has stated: “Once the question was raised as to [respondent's] ability to employ an attorney to represent him on this contempt matter, it was incumbent upon the [trial judge] to advise [respondent] of his right to the appointment of counsel if he were indigent and, if he then requested the appointment of counsel, to appoint one for him upon a determination by the [trial judge] that he was in fact indigent and, therefore, not able to afford counsel.”8 Continue	More delay Respondent requests a court appointed attorney and demands a jury trial. In the indigency hearing, you decide that respondent is in fact indigent and appoint an attorney to represent him. As described above, this newly appointed attorney must be granted some time to prepare for the hearing. Once again, the hearing has to be postponed. But what about the jury trial that respondent has demanded? Right to Jury Trial Generally, there is no right to a jury trial in contempt proceedings unless the charge is “serious.” Serious vs. Petty Offenses The United States Supreme Court has declared that the Sixth Amendment right to a jury trial extends only to “serious” offenses and does not apply to “petty” offenses.9 Six months imprisonment and/or a $500 fine has been used by the courts as a somewhat arbitrary line to distinguish petty offenses from serious offenses, although this does coincide with the prior statutory definition of a petty offense in Federal criminal law. 10 The general Texas contempt statute, § 21.002 Tex. Gov't Code, is in accord with this, setting the maximum punishment for a contempt at a fine of $500 and/or six months confinement in the county jail for each separate violation. 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. 11 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. 12 It is the duty of the trial judge to advise the respondent of his right to a jury trial if the potential punishment is in the “serious” range. 13 Of course, the right to a jury trial may be waived, but evidence of such waiver must be clear from the record. 14 Finally, the hearing You have determined that a jury trial is not necessary, and have given respondent’s newly appointed attorney time to prepare for the hearing. Finally, we come to the hearing itself. Record of the Proceedings Required in Family Law Cases Except for agreed orders, a record of an enforcement proceeding is required in all cases where incarceration is requested.15 Advisable in Other Cases In non-family law contempt, the making of a record is advisable but necessary only on request.16 Burden of Proof Generally Beyond a Reasonable Doubt As a general rule, the burden of proof in any contempt proceeding, family or non-family law, is beyond a reasonable doubt.17 Next page
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