In part one of this series on contempt, published in the April, 2008, issue of In Chambers, we talked about the power of a court to hold someone in contempt. We covered the waterfront generally, including broad discussions of the two categories of contempt, specifically indirect contempt (conduct occurs out of the presence of the court) and direct contempt (conduct occurs in the presence of the court).

Over the course of the next several installments in this series, we will discuss indirect contempt in more detail. Generally, due process of law considerations control contempt of court proceedings. In part two of this series, specific due process requirements will be explored in the indirect contempt proceeding.

Just the facts….

One afternoon, you are in your office reviewing the docket sheet for the next day’s hearings. You notice there is a contempt case set. You immediately grab your copies of In Chambers and your Bench Book (recently updated and accessible through the yourhonor.com website) and realize you have a lot of questions that need to be answered before you complete the hearing. Fundamental questions arise in your mind, grounded in the very fabric of Constitutional law, and the fear that accompanies each of us as we wade into these murky waters of contempt law: being reversed. You realize, immediately and obviously, that you have an indirect contempt case…

Indirect Contempt
Direct contempt occurs within the presence of the court, and the court knows firsthand all the facts constituting the contemptuous conduct. Constructive contempt (also known as “indirect contempt”) occurs outside the presence of the court.1 The importance of distinguishing whether or not the contempt is direct or constructive is that, with the exception of court officers, direct contempt may be punished summarily when there are exigent circumstances. Constructive contempt, because of due process requirements, requires notice and hearing to the contemnor.2

More facts…

And you know, of course, that contempt is a quasi-criminal proceeding…

Procedure In Indirect or
Constructive Contempt Cases
A contempt proceeding is quasi-criminal in nature.3 Proceedings in contempt cases should conform as nearly as practical to proceedings in criminal cases.4

However, contempt proceedings are not criminal within all the rules and definition of criminal law. Since motions for contempt are somewhat criminal in nature, the standard to be applied is the standard of due process which requires that the contemnor be accorded notice and a fair hearing.5

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More facts…

Instantly you remember that due process requires there be a valid written order that clearly, specifically, and without ambiguity sets out the duties imposed on the alleged contemnor…

Due Process Requirements

The Order Must Be Written
The Texas Supreme Court has stated that oral orders do not meet the specificity required by Ex parte Slavin.6 A respondent cannot be held in contempt for actions taken after an oral rendition of an order but prior to the time the order is reduced to writing.7 This is so notwithstanding the clarity of the oral order nor the shortness of time between the oral rendition of the order and the signing of the written order.

The Respondent Must Have
Knowledge of the Order
It is a fundamental due process requirement that the respondent must have knowledge of a court order before a court may hold that person in contempt for failing to obey the order.8

The Court Must Have Had
Jurisdiction to Enter the Underlying Order
A person may not be held in contempt for violating an order which the court had no power to enforce, and may not be imprisoned to compel obedience of that order.9

Absence of jurisdiction of a court to render a particular judgment makes the judgment subject to collateral attack.10

After a case is dismissed for want of prosecution, the court no longer has jurisdiction to conduct a contempt hearing.11

The Order Sought to Be Enforced Must Be
Clear, Specific and Unambiguous
To meet due process requirements, the person bound by the order must be able to look to the order to know exactly what duties or obligations are imposed.12 The Slavin standard has been interpreted in countless cases. In each case the court looks to the particular language of the underlying order to see if it is sufficient to meet the standards.

A corporate officer may be held in contempt of an order directed solely at the corporation.13 There must be evidence that the corporate agent was personally connected with the contemptuous conduct.14

More facts…

“But,” your ever curious judicial mind wonders, “what exactly does the motion for contempt say and what notice has been given to this alleged contemnor?” As you examine the file, you remember…

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