Contempt of Court

1. Contempt of Court Presented by Kelly Crow Deputy City Attorney City of Sugar Land, TX

2. Contempt Definition: Direct or Indirect Direct-is an act which occurs in the judge’s presence and under circumstances that require the judge to act immediately to quell the disruption, violence, disrespect, or physical abuse. “presence of the court” does not necessarily mean in the immediate presence of the judge. • Not statutorily defined. Common law defines it as conduct that tends to impede the judicial process by disrespectful or uncooperative behavior in open court or by unexcused failure to comply with clear court orders.

3. Examples of direct contempt: physical altercations occurring in the courtroom or at the door of the courtroom. Refusing to rise on the entrance or exit of the judge Disruptive act or event in the courtroom or just outside while court is in session. Tampering with jurors in the jury room. Abusive letter delivered to the judge in chambers while trial was in short recess; or Refusal to answer questions in court when a witness and no 5th amendment right exists.

6. Judge’s personal opinion? • Just because a comment is offensive to the judge, do not confuse this with obstruction of the administration of justice. • Comments are only contemptuous when they are disruptive or boisterous.

7. Taking it personal?

8. How is direct contempt punished? • Section 21.002 Government Code • (c) the punishment for contempt of a justice court or municipal court is a fine of not more than $100 or confinement in the county or city jail for not more than three days, or both such a fine and confinement in jail. • No requirement that direct contempt be punished at the exact time it occurs. The judge may set the matter for a hearing at a later time. • The authority to punish the “contemnor” arises when the act occurs in the judge’s presence and under circumstances that require the judge to act immediately to maintain order. • Example from Sugar Land court. Direct contempt.

9. Indirect or “constructive” contempt • Acts that occur outside the court’s presence. • Examples: • Failure to comply with a court order • Failure to appear in court • Attorney being late for trial • Offensive papers filed with the court

10. Participants please give examples of offensive behaviors that have happened in your court? • Cursing at clerks in hallway outside court? • Offensive clothing? • Cursing at judge? • Do those offensive behaviors arise to the level of contempt?

11. Indirect contempt • Requires the contemnor to be notified of the charges, the right to trial or hearing in open court, and the right to counsel.

12. Contempt can be civil or criminal • Civil-willfully disobeying a court order or decree. • Criminal-any act that disrupts court proceedings, obstructs justice, is directly against the dignity of the court or brings the court into disrepute.

13. Specific contempt authority • Attorneys (prosecutors and defense attorneys) are officers of the court. • Clerks are officers of the court. • Police or bailiffs assigned to the court are officers of the court. A police officer in court to appear as a witness is not considered an officer of the court.

14. Special procedures apply to these officers of the court. • If an officer of the court is held in contempt, they must be released on personal recognizance upon filing a proper motion with the court. • Contempt should only be used in RARE circumstances.

15. Ex Parte Pink 746 S.W.2d 758 (1988) • Famous Texas case: Very inappropriate behavior by both the defense attorney and prosecutor. Constant sidebars including “shooting the bird” at eachother in open court. The prosecutor sang the national anthem while the defense attorney was speaking. Eventually, the judge held the defense attorney in contempt.

16. Quoting Ex Parte Jacobs, the Pink court stated: “The power to punish for contempt should only be exercised with caution and contempt is not to be presumed, but on the contrary, is presumed not to exist….To establish contempt of court, it is not the purpose or intent to act which controls, but the act itself must be such as amounts to contempt of court… The essence of “contempt” is that the conduct obstructs or tends to obstruct the proper administration of justice.”

17. Contempt by officer of the court • Contempt of court should only be used as a last resort. The court overturned the defense attorney’s contempt order finding that his conduct did not arise to the level of hindering the forward progress of the trial or obstruct the administration of justice even though his behavior was obnoxious. • Contempt should not be used as a way to control how the trial proceeds

18. The contemnor MUST MAKE A PROPER MOTION TO RECEIVE PR BOND. • Officers of the court are entitled to a trial de novo upon request. • Case is then referred to the presiding judge of the administrative district where indirect contempt is alleged to have occurred.

19. Examples of when officer of the court/attorneys can be held in direct contempt: • Expressing indifference to what the court may hold or do on account of his or her improper remarks and misconduct. Ex Parte Norton, 191 S.W.2d 713. • Give example of federal prosecutor representing his daughter in court.

20. Making continuous frivolous objections amounting to obstruction of the orderly progress of the trial. Ex parte Crenshaw, 259 S.W. 587

21. 2 conditions to meet to hold attorney/officer of the court in direct contempt: • 1) act occurred in the presence of the court or in its immediate vicinity while the court was in session. Judge is aware of all the facts and circumstances that would constitute the contempt and does not need to be provided information from a 3d party. • 2) Immediate action is necessary to quell disruption, violence, disrespect, or to allow trial or proceeding to continue.

22. Procedure • If the act is in disobedience to a court order or admonishment, and the contemnor disobeys or fails to cease the undesirable conduct: (1) announce that the contemnor is in contempt of court. (2) give contemnor opportunity to explain: • If explanation is not accepted or the conduct persists, contempt exists and the judge should state, “You are in contempt of court.” Sec. 21.002(c) Gov’t Code. • In these instances, no separate court hearing and separate notice is required since there is no factual dispute concerning the conduct that is contemptuous. The contemnor may be convicted and sentenced for the DIRECT CONTEMPT as it occurred.

23. Punishment may be administered since immediate action is necessary to control courtroom proceedings. If the court postpones conviction and punishment until after the trial, however, the justification for dispensing with due process requirements disappears and the notice and hearing as described earlier are then required.

25. Children • Children may not be jailed as described in Section 21.002 Govt Code, but can be held in contempt under CCP 45.050 • If the child fails to obey court order that constitutes contempt otherwise, the court (after providing notice and an opportunity to be heard) • Refer the child to juvenile court; or • Order the child to pay a fine not exceed $500 or for DPS to suspend their driver’s license or permit.

26. Service of process • Any peace officer that fails to execute summons, subpoenas, or attachments for witnesses issued by the court may be held in contempt. • Art. 2.16 CCP-must willfully refuse to execute the summons, subpoena or attachment for a witness, or any other legal process. The fine may not be less than $10 nor more than $200.

27. Witnesses • If a witness fails to abide bye “The Rule” either by discussing their testimony with persons other than the parties allowed or observing testimony after being placed under “The Rule” are guilty of direct contempt under 36.05 & 36.06 CCP. • In a misdemeanor case a witness who refuses to obey a summons is limited by statute to a fine not to exceed $100. • A witness who fails to appear for a deposition in a criminal case is guilty of constructive contempt.

28. Jurors

29. Jurors • Jurors who have been summoned to municipal court, but fail to appear have committed constructive contempt, but can be fined no more than a $100 fine. If a juror files a claim stating that they are exempt from service, and no such exemption exists then the fine range is between $100-500. • Because this is indirect contempt the juror is entitled to notice and hearing. No incarceration is authorized for jurors.

30. Thank you! • Any questions?

31. Kelly Crow • Deputy City Attorney • City of Sugar Land, TX • kcrow@sugarlandtx.gov