Ex parte Durham

• Decision Date: 18 April 1996
• Docket Number: No. 13-95-564-CV,13-95-564-CV
• Citation: 921 S.W.2d 482
• Parties: Ex parte Albert DURHAM, Jr.
• Court: Texas Court of Appeals

Page 482

921 S.W.2d 482

Ex parte Albert DURHAM, Jr.

No. 13-95-564-CV.

Court of Appeals of Texas,

Corpus Christi.

April 18, 1996.

E. Dale Robertson, Brownsville, for Relator.

Edward Watt, Austin, Larry Spence, Sheriff, Willacy County, Raymondville, for Interested Parties.

Before DORSEY, YANEZ and CHAVEZ, JJ.

OPINION

YANEZ, Justice.

Albert Durham, Jr., relator in this habeas corpus proceeding, presents four grounds for relief. First, he complains that the civil contempt portion of the court's contempt order inadequately specifies what actions he must take to purge himself of contempt. Next, Durham asserts that final judgment in the underlying case absolved him of any duty to comply with prior orders. Third, he contends that an order revoking bond upon the determination that he had not purged his civil contempt resulted in a void modification of the contempt order. And, finally, Durham raises a double jeopardy argument based on the revocation of his bond. We deny the application for writ of habeas corpus and order Durham remanded into the custody of the Willacy County sheriff.

This proceeding rose in the aftermath of Joseph Sutton's lawsuit against Durham, Brian Vermaak, and Strut Cam Dimensions, Inc. That underlying dispute involved the breach of a joint venture agreement to purchase ostriches in Africa and raise them in Costa Rica to produce eggs for sale in the United States market.

During pretrial discovery, Durham and Vermaak produced documents damaging to their case. After the court reporter had established custody over those documents, Durham and Vermaak removed the documents from the court reporter's office so they could not be made part of the record. Judge Menton Murray granted Sutton's consequent motion for sanctions and ordered "Defendant ALBERT DURHAM must produce to Plaintiff all of his business records from January 1, 1992 to the present" by January 12, 1994. In February, Sutton took a postanswer default judgment against all three defendants although Durham had not yet returned the missing records or otherwise complied with Judge Murray's order. That judgment is now final. See Strut Cam Dimensions, Inc. v. Sutton, 896 S.W.2d 799 (Tex.App.--Corpus Christi 1994, writ denied) (dismissing appeal because appellant filed transcript late).

During postjudgment discovery, Judge Darrell Hester conducted a hearing to consider both Sutton's motion to allow additional interrogatories and Durham's countermotion to quash. Judge Hester granted Sutton's motion and ordered Durham "to answer, fully and completely, all of the interrogatories filed and served upon said Defendants on or about September 29, 1994 and to produce all of the documents requested in the Requests for Production filed and served upon said Defendants on or about September 24, 1994" by January 12, 1995.

By July 7, 1995, Durham had neither produced any documents nor fully answered the interrogatories. On that date, Judge Rogelio Valdez conducted an evidentiary hearing to consider Durham's noncompliance as alleged in Sutton's motion for contempt, which is not part of the record before us. ¹ After noting that all parties were present and represented by counsel, Judge Valdez's order provides:

Specifically, the Court finds that Defendant Durham has been and remains in continuing contempt of the order granting Plaintiff's motion for sanctions dated December 13, 1993 and signed by the Honorable Judge Menton Murray, Jr. on February 1st, 1994 in that Defendant had not produced any (much less all) of the documents ordered by Judge Murray to be produced. In addition, Defendant has been and remains in contempt of the order dated December 12, 1994, and signed by the Honorable Judge Darrell Hester on January 11, 1995 in that Defendant has failed to produce any of the documents so ordered to be produced and has failed to answer fully and completely the interrogatories as ordered.

It is therefore ordered, adjudged and decreed that Plaintiff's motion is Granted. It is further

Ordered, adjudged and decreed that Defendant Durham, being in criminal contempt of this Court, be immediately taken into custody and held in jail, without bail, for a period of two months. It is further

Ordered, adjudged and decreed that Defendant Durham, being in civil contempt of this Court, be held in jail for an additional period of one day for each day after the date of this Order that defendant remains in contempt of this Court.

Durham was released on bond after he had been confined for five days. Judge Hester conducted a hearing on Sutton's motion to revoke bond. At that hearing, Judge Hester determined that Durham had not purged himself of the civil contempt. Judge Hester further determined that Judge Valdez's contempt order required that Durham serve the civil contempt sentence before the two-month sentence for criminal contempt.

ADEQUACY OF PROVISION FOR PURGING CIVIL CONTEMPT

By his first ground for relief, Durham complains that the contempt order fails to specify what actions he must take to purge himself of civil contempt. The standard of specificity necessary to meet the constitutional requirements of due process varies depending on the type of contempt at issue. The law surrounding the trial court's contempt powers makes two distinctions relevant to this habeas corpus case.

First, the law distinguishes between direct contempt and constructive contempt. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995). Direct contempt involves disobedience or disrespect in the presence of the court, while constructive contempt occurs outside the court's presence. Id.; Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). The contempt alleged in this case, violation of written court orders, is constructive contempt because it occurred outside the presence of the court.

The second distinction relevant to this case is the difference between civil contempt and criminal contempt. This distinction does not depend on whether the underlying case is civil or criminal, but on the nature and purpose of the court's punishment. Ex parte Werblud, 536 S.W.2d 542, 545-46 (Tex.1976).

The object of civil contempt is to coerce the contemnor to comply with some order of the court. Id. Imprisonment under a civil contempt order compels future compliance through the use of a provision by which the contemnor may purge the contempt. In contrast, criminal contempt proceedings involve the court's confinement of the contemnor as punishment for a completed affront to the court in order to vindicate the court's authority. Id. at 545; see also Ex parte Alloju, 907 S.W.2d 486, 487 (Tex.1995) (characterizing civil contempt as coercive incarceration and criminal contempt as punitive incarceration).

The contempt order under review includes both criminal and civil contempt provisions in one order, which is within the trial court's authority. Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex.1986). Under relator's first ground of relief, however, we need only consider the validity of the order's civil contempt provision, which is based on Durham's constructive contempt.

Because the court confined Durham for constructive contempt, the contempt order (as well as the orders Durham failed to obey) must be written in clear language specifying Durham's obligations. Ex parte Quevedo, 611 S.W.2d 711, 712 (Tex.App.--Corpus Christi 1981, orig. proceeding); see also Ex parte Brister, 801 S.W.2d 833, 834 (Tex.1990). Interpretation of these orders should not rest on implication. Ex parte Blasingame, 748 S.W.2d 444, 446 (Tex.1988); Ex parte Kraus, 863 S.W.2d 104, 106 (Tex.App.--Corpus Christi 1993, orig. proceeding). However, an order "is insufficient to support a judgment of contempt only if its interpretation requires inferences or conclusions about which reasonable persons might differ." Chambers, 898 S.W.2d at 260. The order need not be "full of superfluous terms and specifications adequate to counter any flight of fancy a contemnor may imagine in order to declare it vague." Kraus, 863 S.W.2d at 106 (quoting Blasingame, 748 S.W.2d at 446).

Because the provision under review involves civil contempt, the contempt order must spell out exactly what Durham can do to purge the contempt. See Ex parte Proctor, 398 S.W.2d 917, 918 (Tex.1966). In this case, the contempt order provides only that Durham will be held "one day for each day after the date of this Order that defendant remains in contempt of this Court." This civil contempt provision does not reiterate exactly what Durham must do to purge himself of contempt. Nevertheless, this omission does not automatically render the provision impermissibly vague. The order should be viewed as a whole to determine if it is clear and specific. Ex parte Johns, 807 S.W.2d 768, 773 (Tex.App.--Dallas 1991, orig. proceeding). Viewed as a whole, the order yields only one reasonable interpretation: Durham must produce documents as Judges Murray and Hester ordered and answer interrogatories as Judge Hester ordered.

This determination does not end our review. Ultimately, contemnors held for civil contempt should be able to look in the record and find some written order spelling out exactly what duties and obligations are imposed on them. Ex parte Padron, 565 S.W.2d 921, 924 (Tex.1978) (citing Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.1967)). Because the purgative language from the contempt order under review implicitly incorporates terms from the orders Durham failed to abide, we must also consider those underlying orders.

Judge Murray ordered Durham to produce "all of his business records from January 1, 1992 to the present." This is unambiguous. Durham cannot complain about the vagueness of obligations imposed by Judge Murray because those duties are clearly specified in a signed, written order that is part of the record. See Padron, 565 S.W.2d at 924 (citing Slavin, 412 S.W.2d at 44). Similarly, Judge Hester ordered the production of "all of the documents requested in the Requests for...