B. CONTEMPT BY OFFICERS OF THE COURT

1.  Procedure codified.

In addition to the procedures for non-officers, the legislature has codified additional procedures for holding an officer of the court in contempt. These are set forth in Tex. Gov’t Code §21.002(d).21

2.  Who is an Officer?

a.  Attorneys. Case law in regards to contempt by officers of the court is almost exclusively devoted to conduct of lawyers.  An attorney representing a client in the trial of a case is, of course, an officer of the court.22 An attorney may be fined or imprisoned by any court for misbehavior or for contempt of the court.23

b.  Receivers.  Court-appointed receivers are officers of the court and are entitled to the protection of Government Code §21.002(d).24

c.  Court Reporters.  Court reporters are officers of the court.25 As Sanchez involved contempt imposed by an appellate court, it should be noted that Tex. Gov't Code Ann. § 21.002(d) applies only to officers of the court who are held in contempt by a trial court. Thus, the pronouncement of contempt of a court officer by an appellate court need not be referred to another court for determination of guilt or innocence.

3.  When is Contempt Holding Proper?

It is important for the trial judge to remember that holding an attorney in contempt must be done in such a manner as to not prejudice the rights of the litigant. One option available is for the judge to halt the conduct, note the offensive conduct at the time it occurs, warn the lawyer in that respect, and conduct a contempt hearing after the trial.26

4.  Examples of Lawyer Contempt.

a.  Improper Remarks. An attorney may be held in contempt for statements made during court proceedings. Even if the remarks are not disrespectful or improper, an attorney may be held in contempt for the manner in which he or she spoke27

The Court of Criminal Appeals has held that the essence of direct contempt is that the conduct obstructs or tends to obstruct the proper administration of justice.28 Recently, this Court clarified its position, stating that disrespectful conduct toward the court, even if it does not obstruct the administration of justice, may subject an attorney to contempt.29

Numerous additional examples may be found in the annotation at 68 A.L.R.3d 273 (1976).

b.  Tardiness. An attorney may not be punished by contempt for being justifiably late for a court appearance.30 In that case, a contempt order against an attorney was reversed where he was ten to twenty minutes late because he was answering the docket call in another court.31

c.  Failure to File a Brief Timely. An attorney may be held in contempt for failing to file a brief timely.32

d.  Failure by Prosecutor to Present Case. A prosecutor may be held in contempt for failure to present a case.33

e.  Advice to Clients.  An attorney's advice to a client to violate a court order will not subject the attorney to contempt if he acted in good faith.34

f.   Incompetence of Counsel.  It appears doubtful that an attorney can be held in contempt for alleged incompetence or for certain trial tactics which are in his discretion.  In Ex parte Pink, the court of criminal appeals stated:

Although we reserve judgment on whether a trial judge who believes an attorney is not rendering effective assistance to his client during the trial of a case may for that reason hold the attorney in contempt, until it is properly before us, we harbor serious doubt that it is a proper use of contempt powers.35

Thus, a trial court cannot rule that an attorney's failing to conduct voir dire examination or to utilize peremptory challenges is contemptuous.36

g.  Trial Tactics.  Where the trial court had ruled that a certain line of argument was inadmissible, and the attorney persisted, contempt may be proper.37

Trial court has ample power to terminate action of counsel in repeatedly propounding questions to a witness designed to elicit improper evidence by holding attorney in contempt.38

5.  Motion to Release. 

When a court officer is held in direct contempt, he or she has the right to present a motion to be released upon recognizance pending a determination of guilt or innocence by another judge.  Once an officer of the court makes such a motion, the trial judge must release the officer on his own recognizance pending the hearing.39

While there are no cases on point, it would seem than an oral motion would meet the requirements of §21.002(d) in direct contempt matters. This would make sense because in a direct contempt case, the judgment may be immediately imposed by the court, which would preclude the officer from having the time to prepare a written motion.

On the other hand, in a constructive contempt case, a written motion may be required.40

6.  Hearing Before Different Judge. 

Tex. Gov’t Code § 21.002(d) gives the respondent the right to have a judge, "other than the judge of the offended court," determine whether the respondent is actually guilty.41

7.  Notice and Opportunity to be Heard. 

Due process demands that direct contemnors, those whose contumacious acts occur in the presence of the court, be afforded reasonable notice of the specific charges and an opportunity to be heard before being finally adjudicated in contempt and sentenced.42

The show cause order in Pink commanded the respondent to "appear before this Court on [date] for a contempt hearing . . ."  This notice was held "insufficient to inform [Pink] of the accusations against him." On the other hand, the notice was held sufficient in Reposa, which said “Defense counsel Reposa made a simulated masturbatory gesture with his hand while making eye contact with the Court in response to an objection by the State to his interference with the Court's plea bargain inquiry.”

Conclusion

In summary, my advice to you can be summarized by a few ideas:

• Contempt, particularly direct contempt, is an inherent power of the court, and arises from the very nature and purpose of a court.
• A court’s contempt power should be used only sparingly, and after consideration of all other available options.
• Contempt proceedings are quasi-criminal.
• Contempt proceedings are governed, at least, by Constitutional due process requirements, and probably by statute. 

I hope that this walk through the maze of contempt law will be of some use to you, the Judges of Texas. Please do not hesitate to call me if I may ever be of service.

This concludes Judge Paul Davis' series on contempt.