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Contempt of Court purging


									Contempt of Court

“Don’t Mess with Texas"

         Marcus D. Taylor
 Retired Criminal District Attorney
       Wood County, Texas`
Contempt Power in General

 TX GOVT sec. 21.001
     (a) A court has all powers necessary for the exercise of its
     jurisdiction and the enforcement of it’s lawful orders…
     (b) A court shall require that proceedings be conducted
     with dignity and in an orderly and expeditious manner…
     so that justice is done.

 TX GOVT sec. 21.002
   (a) …a court may punish for contempt.
Types of Contempt

 Direct Vs. Constructive

   Direct - within the presence of the court

   Constructive - outside the presence of the court
Contempt by Particular Parties

 Attorneys
 Justices of the Peace
 Jurors/Prospective Jurors
 Spectators
 Witnesses
 Employers
 Court officers
   Court reporters
Direct Contempt Proceedings

 Summary in Nature
   Occurred in court’s presence, so no need for hearing
   Act usually requires immediate vindication of court dignity
 Officers of the Court
   Law allows contemnor to move for PR bond and appointment
    of different judge to determine guilt or innocence
   Court must grant motion
 Characteristics of Hearing
   Notice of hearing not required if acts punished immediately
   If court does not act immediately, the notice and hearing is
Defense to Direct Contempt

 Truth may set you free

   Truth of a statement that forms the basis of the charge is a

   If charge based on Publication during trial, truth of publication
    is NOT a defense

 Invalid Defenses

   Mootness on merits

Constructive Contempt Proceeding

 Constructive contempt

   act done away from court that tends to belittle, degrade,
    obstruct, interrupt, or embarrass the administration of justice
       violation of court order
       discovery abuse
       filing offensive papers in court
       attorney late for trial
       making defamatory statements
       direct contempt by officer of the court
Constructive Contempt Proceeding (cont)

 Rights of the Alleged Contemnor

   No arrest
   Notice of the specific charges
   Hearing in open court
   Right to counsel
Constructive Contempt Proceeding (cont)

 Contempt Complaint

   Filed by any person who witnessed/has knowledge of alleged
   Must be sworn to
   Separate charges for each act
   Must show accused had knowledge act committed
   If complaint insufficient, then court has no jurisdiction
Constructive Contempt Proceeding (cont)

 Show Cause Order

   Directs accused to appear on certain day and show cause why
    he/she should not be held in contempt
   Must be delivered to person accused or show he/she has actual
   Must be full and complete notification
       what means
       Void if fails on any of these

   If accused fails to appear, court may issue writ of attachment
Constructive Contempt Proceeding (cont)

 Hearing
   Generally, NO right to JURY TRIAL
   If multiple charges which, if accumulated (run consecutively),
    could exceed six months confinement, then accused is entitled
    to a jury trial.
   Judge must hear from both sides
   If accused is indigent AND judge intends to impose
    confinement, then court MUST appoint an attorney for the
   Accused has right to invoke the 5th
Constructive Contempt Proceeding (cont)

 Defenses to Constructive Contempt

   Void Order
      No jurisdiction
      Unconstitutionally vague
    Lack of knowledge
    Acquiescence of complainant
Constructive Contempt Proceeding (cont)

 Incomplete Defenses

   Inability to comply with court order
Judgment of Contempt

 Requirements
   Must be written
   Recites facts or omissions=contempt
   Recite jurisdiction over person and act
   Certain as to time and condition of punishment
   CLEARLY state what acts, if any, required to mitigate
   Make SEPARATE findings and SEPARATE PUNISHMENT in each
      If court makes ONE penalty for multiple acts and a single act is
       found void, the WHOLE ORDER IS VOID
   IMPRISONMENT requires written Order of Commitment
   Can award costs, but no damages

 Types (TX GOVT sec.21.002)

   Fine not to exceed $500 per count (generally)
      Can set out in jail at rate of $50/day
      If so, will be credited to imprisonment ordered
   Imprisonment not to exceed six months per count
      Criminal - inability to comply with order does not bar jail
      Civil - court may exceed statutory confinement to compel
       obedience, but MUST include a SPECIFIC purge clause

   Combination of fine and imprisonment
Punishment (cont.)

 Inability to Comply - Civil

   Contemnor unable to comply = NO JAIL

   Accused has b/p to conclusively establish involuntary inability

   See, however, Ex parte Chambers, 898 S. W. 2nd 257 (Tex.
Punishment (cont.)

 Inability to Comply - Civil

   Contemnor unable to comply = NO JAIL

   Accused has b/p to conclusively establish involuntary inability

   See, however, Ex parte Chambers, 898 S. W. 2nd 257 (Tex.
Review of Contempt Judgment

 Ordering Imprisonment

   Texas does not allow appeal

   Accused can seek Writ of Habeas Corpus

      Whether   trial court had jurisdiction over person
      Whether   trial court had jurisdiction over subject matter
      Whether   accused afforded proper notice and hearing
      Whether   order supported by evidence
Review of Contempt Judgment (cont.)

 Ordering Fine Only

   Not Reviewable….unless

   Contemnor so bull headed he/she won’t pay fine, then…

   Court imprisons him/her for non-payment, then can file Writ of
    Habeas Corpus
The End
   Ex parte Franklin

   898 S. W. 2nd 257
Supreme Court of Texas
April 9, 1992 Chambers incorporated IBS to compete with IBEC

June 15, 1992 Chambers removed all IBS board members and
              became the sole officer, director and shareholder
              of IBS

July 15, 1992 First restraining order to prohibit violation of
              non-competition agreement

August 19, 1992 Amended rest. Order after hearing where court
               found preparing to violate non-competition
               agreement and TRO clarified
January 4, 1993 Second TRO

                Court found IBS contacting former and
                current IBEC customers and enjoined

January 15, 1993 2nd TRO made into permanent RO

February 2, 1993 First Contempt Judgment

                 Held Chambers and IBS in contempt
                 and assessed fine on both
March 1993    Chambers begins doing business as IBS-2
              as a sole proprietor at same office, phone
              and equipment. He drained most of the cash
              reserves from IBS.

June 8, 1993 The day before the hearing on the 2nd
             contempt motion, Chambers drew all the
             money from the IBS account.

June 24,1993 2nd Contempt Order
             Court held IBS in contempt for six
             violations and fined $3,000.
             No one paid.
October 25, 1993   Third judgment of contempt and
                   commitment order

                   Held IBS and Chambers, as it’s
                   sole officer, director and shareholder,
                   in contempt. Ordered Chambers
                   jailed seven days and fined $3,000.

And the Supreme Court of Texas
“Turn him loose!”

Order was sufficiently specific to give rise
 to personal duty on officer’s part to obey


IBS is “broke” and unable to comply
GONZALEZ, Justice, dissenting.

“I will not join an opinion that allows Chambers to
continue brazenly flouting the orders of the trial court,
thus making a mockery of the judicial system”

Thank you, Justice Gonzalez!

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