"Ex parte Werblud"
Page 1 Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976) Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976) No. B-5639 Supreme Court of Texas April 14, 1976 COUNSEL: two days of contemptuous acts ...." Werblud For Relator: W. V. Dunnam, Jr. - Waco, refused to pay the fines and therefore was Texas. taken into custody by the Sheriff. Werblud asserts that he should be released because: For Respondent: Bernard D. Newsom, Jr., (1) the injunction was so broad and indefinite Asst. Atty. Gen. - Austin, Texas. that he did not have notice of the acts prohibited, (2) he was denied a trial by jury, JUDGES: and (3) he was forced to testify against himself. Jack Pope, Justice. Thomas M. Reavley, We agree with the third contention and grant Associate Justice, dissents. Chief Justice the writ. Greenhill and Justices Steakley and Johnson It is well settled that a court of civil appeals join in this dissent. may exercise contempt powers when the contempt proceeding is instituted after the OPINION BY: jurisdiction of the appellate court has attached. POPE Ex parte Duncan, 127 Tex. 507, 95 S.W.2d 675 (1936); Ex parte Travis, 123 Tex. 480, 73 OPINION: S.W.2d 487 (1934); Musick v. Hunt, 364 S.W.2d 252 (Tex. Civ. App. -- Houston 1963); Maurice Werblud applied for writ of habeas International Ladies' Garment Workers' Local corpus to obtain his release from custody for Union No. 123 v. Dorothy Frocks Co., 97 his failure to pay two fines, each in the sum of S.W.2d 379 (Tex. Civ. App. -- San Antonio $500 for violations of a temporary injunction 1936). As this court stated in Ex parte Travis, committed on different days. On July 28, 1975, supra at 489: the 54th Judicial District Court temporarily After the jurisdiction of the appellate court enjoined Werblud from operating his rendering attached, it alone was clothed with the power plant, Texas Pet Foods, Inc., in certain to adjudicate the validity or invalidity of the designated ways because it was emitting temporary injunction and to exercise the noxious odors in violation of the Texas Clean discretion involved in compelling obedience to Air Act, TEX. REV. CIV. STAT. ANN. art. 4477- the injunction pending appeal. 5 (pamp. supp. 1974), and the Renderers' Licensing Act, TEX. REV. CIV. STAT. ANN. When the proof of an alleged contempt art. 4477-6 (pamp. supp. 1974). Werblud requires a factual hearing, in some instances appealed the injunction and after the court of the court of civil appeals has conducted its own civil appeals acquired jurisdiction of the case, hearing. That was the procedure employed by the State instituted contempt proceedings the court of civil appeals in Ex parte Duncan, based on several alleged violations of the supra. The acts of contempt which were injunction. The court of civil appeals conducted alleged in International Ladies' G.W. Union No. a factual hearing and then ordered that 123 v. Dorothy Frocks Co., supra, involved a "Maurice Werblud shall be, and is hereby, rather extensive hearing about a number of punished by a fine of $500.00 for each of said separate acts of contempt and a number of Page 2 Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976) persons. The court of civil appeals in that operations and on a daily basis instance, while retaining jurisdiction of the thereafter; (6) by failing to level to the contempt matter, referred the matter of taking ridge-and-furrow system ditches so as to testimony and hearing evidence to the judge of prevent standing water and assure a District Court. The transcript of the evidence adequate irrigation of ridge-and-furrow was then forwarded to the court of civil vegetation; (7) by failing to develop, appeals. Either of those procedures is an reduce to writing, post in a noticeable appropriate one, though this court considers plant location, and insist upon referral to the district court preferable in the employees following, a regular daily ordinary case. When a jury is required to cleaning procedure; and (8) by failing to determine factual issues, the court of civil operate all odor abatement and waste- appeals should retain jurisdiction of the water treatment equipment according to contempt hearing and is required to refer the the manufacturer's specifications;" factual hearing to a trial court. The trial court may then try the disputed facts before a jury The Right to a Jury Trial in the Contempt and transmit the findings to the appellate court. Hearing There is no contention made in this court that the court of civil appeals lacked jurisdiction to Werblud also says that his constitutional entertain the contempt charge. Under the rights were violated by the court's denial of his authorities mentioned above, that contention request for a jury trial. He relies upon Articles would be without merit. V, VI, and XIV of the United States Constitution, as well as Article I, Sections 10 The order which Werblud was charged with and 15, and Article V, Section 10, of the Texas violating was not overbroad nor subject to the Constitution. To determine Werblud's right to deficiency of uncertainty. Attached to the order jury trial, we must first decide whether the were eighteen xeroxed pages of the Texas contempt for which Werblud was charged was Clean Air Act and the Renderers' Licensing civil or criminal, whether it was direct or Act, but the order went on to specify the acts constructive, and whether it was petty or which were prohibited. The judgment of serious. contempt made findings that Werblud had violated several of those specifications in the The purpose of civil contempt is remedial injunction order. The injunction met the test of and coercive in nature. A judgment of civil certainty required by Ex parte Slavin, 412 contempt exerts the judicial authority of the S.W.2d 43 (Tex. 1967). court to persuade the contemnor to obey some order of the court where such obedience will benefit an opposing litigant. Imprisonment is "(2) by failing to repair all holes in the conditional upon obedience and therefore the rendering plant structure and completely civil contemnor "carries the keys of his prison seal the entire building to prevent the in his own pocket." Shillitani v. United States, emission of fugitive odors; (3) by failing 384 U.S. 364, 368, 16 L. Ed. 2d 622, 86 S. Ct. to seal all product handling systems 1531 (1966); Gompers v. Bucks Stove & R. used in the transfer and processing of Co., 221 U.S. 418, 442, 55 L. Ed. 797, 31 S. by-product materials to assure same are Ct. 492 (1910). In other words, it is civil leak and spill-proof; (4) by failing to vent contempt when one "may procure his release condensor and hot well exhaust gases, by compliance with the provisions of the order vapors and odors directly to the of the court." Ex parte Hosken, 480 S.W.2d 18 defendant's venturi scrubber; (5) by (Tex. Civ. App. -- Beaumont 1972). This is the failing to remove all raw and processed settled rule in Texas. Ex parte DeWees, 146 poultry materials from rendering plant Tex. 564, 210 S.W.2d 145, 147 (1948). floors, walls, and equipment and thoroughly steam same prior to start-up Page 3 Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976) Criminal contempt on the other hand is does the court primarily seek to accomplish by punitive in nature. The sentence is not imposing sentence?" In this instance the conditioned upon some promise of future answer to that test is punishment. performance because the contemnor is being A contempt may also be classified as either punished for some completed act which direct or constructive. A direct contempt occurs affronted the dignity and authority of the court. within the presence of the court; while a Shillitani v. United States, supra; Beale, constructive, or indirect, contempt occurs Contempt of Court Criminal & Civil, 21 Harv. L. outside the presence of the court. Ex parte Rev. 161 (1908); Magee, Contempt of Court in Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928); Texas, 14 S. Tex. L.J. 278 (1973). 17 AM. Magee, supra at 281. This distinction has more JUR. 2d, Contempt § 4 (1964). This rule was significance than merely identifying the well expressed in Ex parte Hosken at 23: physical location of the contemptuous act, Where the primary purpose of the since more procedural safeguards have been proceeding is to vindicate public authority, the afforded to constructive contemnors than to proceeding is usually denominated criminal. direct contemnors. United States v. Wilson, The action is punitive in nature. Nye v. United 421 U.S. 309, 95 S. Ct. 1802, 44 L. Ed. 2d 186 States, 313 U.S. 33, 43, 61 S. Ct. 810, 85 L. (1975); Ex parte Hill, 122 Tex. 80, 52 S.W.2d Ed. 1172, (1941); Bloom v. Illinois, 391 U.S. 367 (1932); Odom & Baker, Direct & 194, 201, 88 S. Ct. 1477, 20 L. Ed. 2d 522 Constructive Contempt, 26 Baylor L. Rev. 147 (1968). Ordinarily, the punishment is fixed and (1974). Note, Mayberry v. Pennsylvania: Due definite and no subsequent voluntary Process Limitation in Summary Punishments compliance on the part of the defendant can for Contempt of Court, 25 Sw. L.J. 805 (1971). enable him to avoid punishment for his past The charge against Werblud was, of course, acts. that of a constructive contempt. We have then, a constructive criminal contempt which is The affidavit of contempt filed by the State charged against one who is tried by judges prayed that: other than the one who pronounced the Texas Pet Foods, Inc., and Maurice original order. Werblud, its owner, operator and principal One's right to a jury, however, depends corporate officer, be held in and punished for upon still another test, whether the offense contempt of this court; that Maurice Werblud, may be classified as petty or serious. The as owner, operator and principal officer of the distinction was noticed in the recent decision of Defendant corporation be fined and imprisoned the Supreme Court in Muniz v. Hoffman, 422 for such reasonable length of time U.S. 454, 95 S. Ct. 2178, 2190, 45 L. Ed. 2d commensurate with the gravity and 319 (1975). Although that case arose in the seriousness of each act of contemptuous Federal court, the jury trial requirements of the conduct alleged in this Affidavit .... [Emphasis Sixth Amendment to the United States added.] Constitution apply with equal force to State The court of civil appeals made clear that its prosecutions for contempt. Codispoti v. purpose in imposing the two fines upon Pennsylvania, 418 U.S. 506, 41 L. Ed. 2d 912, Werblud was to punish him. The punishment 94 S. Ct. 2687 (1974); Bloom v. Illinois, 391 was for completed acts of contempt and was U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477 not made conditional upon future compliance (1968); Duncan v. Louisiana, 391 U.S. 145, 20 by Werblud. As the United States Supreme L. Ed. 2d 491, 88 S. Ct. 1444 (1968). Muniz Court said in Gompers v. Buck Stove & R. Co., summarized the distinctions and from that case supra, and repeated in Shillitani v. United we extract these rules: States, supra 384 U.S. at 369, "It is not the fact of punishment but rather its character and (1) Like other minor crimes, "petty" purpose that often serves to distinguish civil contempts may be tried without a jury, but from criminal contempt. The test may be what contemnors in serious contempt cases in the Page 4 Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976) federal system have a Sixth Amendment right the legislative history of the Texas contempt to jury trial; statute reveals that it was the drafter's intent to keep punishment within the petty offense (2) criminal contempt, in and of itself and category. Greenhill, Proposed New Statute on without regard for the punishment imposed, is Contempt, 33 Tex. Bar J. 970 (1970). The fact not a serious offense absent legislative that two $500 fines were imposed upon declaration to the contrary; Werblud does not take this case out of the (3) lacking legislative authorization of more petty offense category. These fines constituted serious punishment, a sentence of as much as punishment for two separate acts of six months in prison, plus normal periods of constructive contempt committed on separate probation may be imposed without a jury trial; dates. Ex parte Genecov, 143 Tex. 476, 186 (4) but imprisonment for longer than six S.W.2d 225 (1945). Even if the fine was months is constitutionally impermissible unless considered as being for a single offense, the the contemnor has been given the opportunity United States Supreme Court in Muniz v. for a jury trial. Hoffman, supra 95 S. Ct. at 2190, held that a Cases of criminal contempt, where the fine which exceeds $500 does not in and of sentence actually imposed does not exceed six itself necessitate the use of a jury. months imprisonment, are exempted from the [We] cannot accept the proposition that a requirements of a jury trial. Taylor v. Hayes, contempt must be considered a serious crime 418 U.S. 488, 41 L. Ed. 2d 897, 94 S. Ct. 2697 under all circumstances where the punishment (1974). This exemption is based upon the is a fine of more than $500, unaccompanied by historical interpretation of the Sixth imprisonment. It is one thing to hold that Amendment that "petty offenses" were tried deprivation of an individual's liberty beyond a without juries in both England and the colonies six-month term should not be imposed without and that the framers of the Constitution did not the protections of a jury trial, but it is quite intend the Sixth Amendment jury trial rights to another to suggest that, regardless of the be more comprehensive than the established circumstances, a jury is required where any common law practice. Duncan v. Louisiana, fine greater than $500 is contemplated. From supra; Frankfurter & Corcoran, Petty Federal the standpoint of determining the seriousness Offenses and the Constitutional Guaranty of of the risk and the extent of the possible Trial by Jury, 39 Harv. L. Rev. 917 (1926). Six deprivation faced by a contemnor, months imprisonment and/or a $500 fine has imprisonment and fines are intrinsically been chosen as a somewhat arbitrary line for different. distinguishing petty offenses from serious We hold that under the facts of this case the offenses, although this does coincide with the court of civil appeals was not required to statutory definition of a petty offense in Federal provide a jury trial for Werblud in a case of criminal law. 18 U.S.C.A. § 1(3). constructive criminal contempt when two separate $500 fines were imposed. Texas is in accord with these distinctions between petty and serious offenses. The Privilege Against Self-Incrimination statute which authorizes punishment for The state called Werblud as its first witness criminal contempt allows punishment by "a fine and Werblud's attorney objected to this of not more than $500, or by confinement in procedure on the grounds that it violated his the county jail for not more than six months, or client's privilege against self-incrimination. The both." TEX. REV. STAT. ANN. art. 1911a, § 2 court of civil appeals overruled the objection (Supp. 1975). The authorization of punishment and Werblud was questioned extensively by falls within the definition of petty offenses as the state concerning his knowledge of and set forth by the United States Supreme Court. control over the rendering plant operations. Muniz v. Hoffman, supra; Duncan v. Louisiana, Many constitutional rights are accorded supra; Bloom v. Illinois, supra. Furthermore, criminal contemnors, including the privilege Page 5 Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976) against self-incrimination. See Goldfarb, The accused in a criminal case than to an ordinary Constitution & Contempt of Court, 61 Mich. witness. L.R. 283 (1962). See also, Gompers v. Bucks In the case of an ordinary witness the Stove & R. Co., 221 U.S. 418, 55 L. Ed. 797, question may be asked. He may then decide 31 S. Ct. 492 (1911); United States v. Temple, whether he will exercise the privilege. But to 349 F.2d 116 (4th Cir. 1965); Killpatrick v. avail himself of the privilege he must make a Superior Court, 153 Cal. App. 2d 146, 314 claim. On the other hand, the defendant in a P.2d 164 (Cal. App. 1957); Goldfarb, supra at criminal case has the privilege of refusing to 320; Merrick, The Privilege of Self - give any testimony in the case. It would seem, Incrimination as to Charges of Contempt, 14 Ill. even so, that the prosecution might call him as L.Rev. 181 (1911); 8 Wigmore, EVIDENCE § a witness for they cannot know whether he will 2257 (McNaughton rev. 1961). claim his privilege. Such, however is not the The state's argument is that the privilege rule. Rather it is universally held that the was not invoked because Werblud's attorney defendant may refuse to be sworn at all. could not legally claim the privilege for his McCormick & Ray, TEXAS LAW OF client. Numerous cases are cited for the EVIDENCE § 432 (1956). [Emphasis added.] proposition that the privilege against self- As the United States Supreme Court stated in incrimination is personal to a witness and must Bloom v. Illinois, 391 U.S. 194, 201, 20 L. Ed. be claimed by the witness himself. Meyer v. 2d 522, 88 S. Ct. 1477 (1968): Tunks , 360 S.W.2d 518 (Tex. 1962); Ingersol Criminal contempt is a crime in the ordinary v. McWillie, 87 Tex. 647, 30 S.W. 869 (Tex. sense; it is a violation of the law, a public 1895); Ex parte Miers, 124 Tex. Cr. R. 592, 64 wrong which is punishable by fine or S.W.2d 778 (1933); Bybee v. State, 74 Tex. imprisonment or both. In the words of Mr. Cr. R. 211, 168 S.W. 526 (1914); Owen v. Justice Holmes: "These contempts are State, 7 Tex. Cr. R. 329 (1879). infractions of the law, visited with punishment We hold that Werblud properly claimed his as such. If such acts are not criminal, we are in privilege against self-incrimination. The cases error as to the fundamental characteristic of relied upon by the state are situations in which crimes as that word has been understood in an ordinary witness claims his privilege against English speech." Gompers v. United States, self-incrimination. Under those circumstances 233 U.S. 604, 58 L. Ed. 1115, 34 S. Ct. 693 the privilege merely grants the witness an (1914). option of refusal to answer; it does not prohibit Werblud was charged with criminal contempt inquiry and the witness cannot refuse to take and his attorney correctly asserted his client's the stand. McCormick & Ray, TEXAS LAW OF privilege against self-incrimination as a reason EVIDENCE § 432 (1956); 8 Wigmore, that he should not have been sworn and EVIDENCE § 2268 (McNaughton rev. 1961). compelled to testify at all. Thus where a party to a civil suit or a non-party The relator is discharged from custody. witness in either a civil or criminal action is on the stand and being examined, it has been held that an attorney cannot interrupt the DISSENT BY: questioning and interpose the privilege in REAVLEY behalf of the witness. The questions may be asked and the witness must personally claim DISSENT: his privilege to each question. McCormick & Ray, TEXAS LAW OF EVIDENCE § 432 Thomas M. Reavley, Associate Justice (1956). The extent to which the Fifth Amendment The privilege against self-incrimination privilege applies in contempt proceedings has grants a broader exemption from inquiry to an not been resolved. I would go no further in the expansion of the privilege than required by the Page 6 Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976) United States Supreme Court. The question in because of the violation of the Texas Solid the instant case is not whether the alleged Waste Disposal Act or the Texas Water Quality contemnor is entitled to decline to answer Act, the State could call the defendant as a specific questions upon the ground of possible witness or could take his deposition. We incrimination. That contention was never made further said that the defendant could avoid by relator or by his attorney. Relator took the answering a question only in the event his oath of a witness. He was then called to the response might subject him to a criminal stand as an adverse witness. When he was penalty. There is a difference between a asked to state his name, his attorney objected proceeding which seeks to hold a party in to his being called as a witness because it contempt of court and a suit for "civil would violate his privilege against self penalties": prior conduct cannot subject the incrimination. The objection was overruled and party to confinement in jail in the suit for civil no further objection was made on grounds of penalty. The same action may seek a self incrimination as relator proceeded to monetary penalty and also an injunction which, answer the questions of both attorneys through if subsequently violated, might then lead to a 91 pages of the statement of facts. contempt proceeding and possible confinement. In the present case the The right not to be called as a witness has contemnor faces confinement only because he been accorded only to the defendant in the refuses to pay the fine which was assessed course of a criminal case. Then is the present because of his contempt. Nevertheless, the proceeding a "criminal case?" The hearing was party was subject to the penalty of confinement held by the Court of Civil Appeals, and the at the outset of the contempt proceeding. habeas corpus has come here to the Supreme Court rather than to the Court of Criminal It is my understanding of the United States Appeals. We hold that the alleged contemnor Supreme Court writing that all alleged was not entitled to a jury. Even if some contemnors (at least in "criminal contempt" privileges must be accorded because of the proceedings) must be given the privilege to potential fine which may be assessed, our decline to answer questions which might tend specific question is not accurately resolved by to prove their own contempt. I would stop labeling the proceeding a "criminal case." We there; I would not go further and reverse this should decide which aspects of a criminal case on the sole ground that Werblud was proceeding must apply. required to take the witness stand. In Ex parte Butler, 522 S.W.2d 196 (Tex. Chief Justice Greenhill and Justices 1975), we recently said that in a suit by the Steakley and Johnson join in this dissent. State seeking to recover monetary penalties