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.1

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.2But, 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.3Generally, 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).4 When an officer of the court is involved, a court may certainly use all 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:

1. release on personal recognizance, and
2. a hearing before a different judge for “a determination of his [or her] guilt or innocence.”5

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.6 The court’s dealings with the attorney should not prejudice the litigant’s rights.

A.   CONTEMPT BY NON-OFFICERS

1.  Conduct Must Obstruct Court. 

Generally, contemptuous conduct is that which “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 . . .”7

2.  Conduct Must Dictate Immediate Court Intervention. 

One distinguishing factor between direct and constructive contempt is the court's need to act instantly to preserve order and integrity.8

3.  Procedures of Complaint, Notice, and Hearing Not Always Necessary. 

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.9 However, the contemnor must have some notice that it is the court being affronted. To be held in contempt for criticizing a judge, for example, the person must have some notice that the judge is acting as the court, and not in a personal capacity.10

a.    If Due Process Can Be Accorded, It Must Be.  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.11

4.  Conduct Must Occur in the Presence of the Court. 

Contemptuous conduct does not have to take place in the immediate presence of the judge to be considered in the presence of the court. As stated by the Court of Criminal Appeals, "The court is present whenever any of its constituent parts are engaged in the prosecution of the court, which constituent parts include the judge, the courtroom, the jury, and the jury room.12

In Ex parte Aldridge, the contemnor had left objectionable pamphlets in the hallway outside the courtroom where prospective jurors were likely to find them, necessitating a mistrial. The conviction of contempt was upheld. 13

a.  Offensive Conduct Toward Judge Outside of Court Is Not Direct Contempt.  The conduct must occur while court is in session, or in the discharge of its duties, to be considered direct contempt. The contemnor must have some notice that the judge is acting as the court and not in a personal capacity.14  A mere affront to the person of the judge is not enough if court is not in session, although the same actions in open court may have been contumacious. Some examples of conduct outside of court include:

• critical letter to judge not direct contempt;15
• confronting judge in hallway outside courtroom and calling her disgraceful not direct contempt;16
• assault on judge at gas station arising out of court proceedings not direct contempt.17

5.  Conduct Must Be Intentionally Disrespectful to the Court

Judges have been repeatedly cautioned by appellate courts against confusing offenses to their personal sensibilities with obstruction to the administration of justice.18

Offensive comments alone are not necessarily contumacious, unless they are disruptive or boisterous, even if spoken in open court.19 Whether or not the respondent's statement offends the court is not the test for contempt actions, but rather the act itself must be shown to be intentionally disrespectful.20