ICWinter09: Contempt Part 2


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A Hearing Is Required Unless the contempt punishment is for a direct contemptuous act requiring immediate action by the court, a hearing is required in order to adjudge contempt. When the Respondent Does Not Appear Due Process Requires Presence In contempt cases, the right to be present at trial and confront witnesses is fundamental and essential to a fair trial.33 In Ex Parte Johnson, the Texas Supreme Court stated: “We perceive no meaningful distinction between an individual's rights which are at stake in a constructive criminal contempt hearing under article 1911a and those at stake in an ordinary criminal trial when confinement is a possible penal sanction. Accordingly, we hold persons charged with criminal contempt pursuant to article 1911a are constitutionally guaranteed the right to be present at trial and confront witnesses.” (at p. 421) The right to be present applies in both coercive (civil) contempt and punitive (criminal) contempt cases.34 Movant's Burden to Show Waiver A contempt judgment entered in the absence of the contemnor violates due process unless the movant affirmatively demonstrates that the contemnor had sufficient notice to appreciate the criminal nature of the proceeding against him and that he knowingly, intelligently and voluntarily waived his right to be present and participate in the trial.35 Writ of Attachment When the respondent fails to appear after actual notice of the hearing, the court should issue a writ of attachment.36 Usually, the court cannot be certain that the respondent received actual notice unless the respondent was personally served or personally signed a certificate of receipt. (Notice to anyone else, including the respondent’s attorney does not assure actual notice to the respondent.) If actual notice is uncertain, the court should not issue a writ of attachment but should instead direct the movant to reset the hearing and personally serve the respondent with notice of the hearing. Family Law Cases The required procedure in family law contempt default cases is codified in Chapter 157 of the Texas Family Code, Subchapters B and C. Upon the respondent's failure to appear after personal service, the court may issue a capias for respondent's arrest with respect to the contempt charge, and may default the respondent on any other relief sought. However, the court may not adjudicate the respondent in contempt.37 If, however, the respondent was served by mail pursuant to section 157.065, a capias may not be issued, and the court should order personal service.38 If a capias is ordered, the court shall simultaneously set an appearance bond.39 To top of next column >>	The bond is to be set in a reasonable amount.40 There is a rebuttable presumption of $1,000 bond or $250 cash. This presumption is rebutted if the arrears exceed $1,000, if the respondent has attempted to evade service or has a previous contempt finding.41 Condition of bond to be respondent's promise to appear at the hearing on the motion for enforcement without further notice.42 Cash bond should be applied to any arrearage found.43 The capias is to be treated by law enforcement personnel as arrest warrant for a criminal offense.44 If respondent is arrested and not released on bond, the court is required to conduct a release hearing on or before the first working day after respondent’s arrest to determine if respondent’s court appearance can be assured by a method other than posting bond.45 If respondent is not released following this hearing, the contempt hearing “shall be held as soon as practicable” but not later than five days after arrest, unless the accelerated hearing is waived.46 Suspended Commitment A second hearing is required if a contemnor was previously found guilty of contempt but punishment was suspended (probated) on the condition of compliance.47 The second hearing is required to determine whether a breach of the conditions has occurred, at the conclusion of which the court must issue an unconditional order of commitment.48 The simple filing of an affidavit of noncompliance to “trigger” the commitment is insufficient to take the place of a hearing. A second hearing must be held even if the conditional commitment order states that failure to comply will result in confinement “without any further notice to the respondent.”49 Enough already… Over the strenuous protestations of movant’s counsel, you issue a capias for the apprehension of the alleged contemnor, and recess the case, knowing they all (even the respondent) will return on another day. In the next issue of In Chambers, we will explore additional due process requirements in indirect contempt cases when the respondent appears, including the right to counsel, records, proof, and compliance with the contempt order. For more information, contact: Paul Davis, Senior District Judge P.O. Box 5601 Austin, TX 78763 pauldavis@judgepauldavis.com www.judgepauldavis.com Continue to Endnotes >>
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A Hearing Is Required
Unless the contempt punishment is for a direct contemptuous act requiring immediate action by the court, a hearing is required in order to adjudge contempt.

When the Respondent Does Not Appear

Due Process Requires Presence
In contempt cases, the right to be present at trial and confront witnesses is fundamental and essential to a fair trial.33 In Ex Parte Johnson, the Texas Supreme Court stated:

“We perceive no meaningful distinction between an individual's rights which are at stake in a constructive criminal contempt hearing under article 1911a and those at stake in an ordinary criminal trial when confinement is a possible penal sanction. Accordingly, we hold persons charged with criminal contempt pursuant to article 1911a are constitutionally guaranteed the right to be present at trial and confront witnesses.” (at p. 421)

The right to be present applies in both coercive (civil) contempt and punitive (criminal) contempt cases.34

Movant's Burden to Show Waiver
A contempt judgment entered in the absence of the contemnor violates due process unless the movant affirmatively demonstrates that the contemnor had sufficient notice to appreciate the criminal nature of the proceeding against him and that he knowingly, intelligently and voluntarily waived his right to be present and participate in the trial.35

Writ of Attachment
When the respondent fails to appear after actual notice of the hearing, the court should issue a writ of attachment.36 Usually, the court cannot be certain that the respondent received actual notice unless the respondent was personally served or personally signed a certificate of receipt. (Notice to anyone else, including the respondent’s attorney does not assure actual notice to the respondent.) If actual notice is uncertain, the court should not issue a writ of attachment but should instead direct the movant to reset the hearing and personally serve the respondent with notice of the hearing.

Family Law Cases
The required procedure in family law contempt default cases is codified in Chapter 157 of the Texas Family Code, Subchapters B and C.

Upon the respondent's failure to appear after personal service, the court may issue a capias for respondent's arrest with respect to the contempt charge, and may default the respondent on any other relief sought. However, the court may not adjudicate the respondent in contempt.37

If, however, the respondent was served by mail pursuant to section 157.065, a capias may not be issued, and the court should order personal service.38

If a capias is ordered, the court shall simultaneously set an appearance bond.39

To top of next column >>

The bond is to be set in a reasonable amount.40 There is a rebuttable presumption of $1,000 bond or $250 cash. This presumption is rebutted if the arrears exceed $1,000, if the respondent has attempted to evade service or has a previous contempt finding.41

Condition of bond to be respondent's promise to appear at the hearing on the motion for enforcement without further notice.42

Cash bond should be applied to any arrearage found.43

The capias is to be treated by law enforcement personnel as arrest warrant for a criminal offense.44

If respondent is arrested and not released on bond, the court is required to conduct a release hearing on or before the first working day after respondent’s arrest to determine if respondent’s court appearance can be assured by a method other than posting bond.45

If respondent is not released following this hearing, the contempt hearing “shall be held as soon as practicable” but not later than five days after arrest, unless the accelerated hearing is waived.46

Suspended Commitment
A second hearing is required if a contemnor was previously found guilty of contempt but punishment was suspended (probated) on the condition of compliance.47 The second hearing is required to determine whether a breach of the conditions has occurred, at the conclusion of which the court must issue an unconditional order of commitment.48

The simple filing of an affidavit of noncompliance to “trigger” the commitment is insufficient to take the place of a hearing. A second hearing must be held even if the conditional commitment order states that failure to comply will result in confinement “without any further notice to the respondent.”49

Enough already…

Over the strenuous protestations of movant’s counsel, you issue a capias for the apprehension of the alleged contemnor, and recess the case, knowing they all (even the respondent) will return on another day.

In the next issue of In Chambers, we will explore additional due process requirements in indirect contempt cases when the respondent appears, including the right to counsel, records, proof, and compliance with the contempt order.

For more information, contact:

Paul Davis, Senior District Judge
P.O. Box 5601
Austin, TX 78763
pauldavis@judgepauldavis.com
www.judgepauldavis.com

Continue to Endnotes >>

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