Ex parte Gordon

• Citation: 584 S.W.2d 686
• Decision Date: 04 April 1979
• Docket Number: No. B-8101,B-8101
• Parties: Ex parte Aubrey Jerald GORDON.
• Court: Supreme Court of Texas

Page 686

584 S.W.2d 686

Ex parte Aubrey Jerald GORDON.

No. B-8101.

Supreme Court of Texas.

April 4, 1979.

Butler, Binion, Rice, Cook & Knapp, Tom Alexander and Norman J. Riedmueller, Houston, for relator.

John D. Wooddell, Austin, for respondent.

McGEE, Justice.

This is an original habeas corpus proceeding. Relator Aubrey Jerald Gordon petitioned this court, seeking release from the Travis County jail where he was confined for fourteen days under the district court's order of commitment. We released the relator on bond pending our resolution of the case. The central issue presented is whether the relator was afforded proper notice of the contempt charge of which he was ultimately convicted.

On June 26, 1978, the State of Texas filed an original petition, seeking to place certain related insurance companies into receivership. Named as defendants were The Phoenix Companies, Inc., d/b/a The Phoenix Companies, and Eagle Financial Services, Glowia Lee Gordon, Buddy W. Gregory, Robert W. Martin, Phoenix Fidelity Life Insurance Company and General Protective Life Insurance Company. Relator, as an officer of the companies, was also named as a party defendant. The original petition sought a temporary restraining order, a temporary injunction and the appointment of a temporary receiver. That same day a combined "Temporary Restraining Order and Order Appointing Temporary Receiver" (hereinafter T.R.O.) was signed by the court. By its own terms, this combined order was to expire ten days after its rendition. On July 6, 1978, the day the T.R.O. expired, an "Agreed Order for a Temporary Injunction and Order Continuing Temporary Receivership" (hereinafter temporary injunction) was signed by the court.

On November 22, 1978, the receiver filed an instrument captioned "Motion for Contempt," which named relator as respondent and alleged that he had violated the terms of the temporary injunction in several particulars by disposing of or concealing receivership property. After examining this contempt motion, the court signed an "Order to Show Cause." The show cause order, however, directed the relator to appear and show cause why he should not be held in contempt for refusing to comply with the "Temporary Restraining Order and Order Appointing Temporary Receiver." Hearing was set for November 29, 1978.

On the day of the hearing, relator filed a motion to vacate the show cause order. He argued that the T.R.O. expired by virtue of its own terms on July 6, 1978, and therefore, he could not be guilty of alleged contemptuous acts committed subsequent to the expiration of that order. The receiver conceded that the show cause order erroneously referred to the T.R.O., but argued that there was "no confusion in anybody's mind about the injunction against these people. . . ." The court overruled the relator's motion and proceeded to take evidence as to whether there had been a failure to comply with the temporary injunction. That same day an order was rendered holding the relator in contempt for disobeying the temporary injunction and sentencing him to fourteen days' confinement in the Travis County jail. ¹

In support of his petition for habeas corpus, relator argues that the contempt order is void inasmuch as he was ordered to show cause why he should not be held in contempt for violating the T.R.O., but without proper notice was held in contempt for violating the temporary injunction. We agree and discharge the relator.

A writ of habeas corpus is available in this state to review a contempt order entered by a lower court confining a contemnor. The remedy is in the nature of a collateral attack and its purpose is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully imprisoned. Where the judgment ordering confinement is "void," the confinement is illegal and the relator is entitled to discharge. See, Ex parte Rhodes, 163 Tex. 31, 34, 352 S.W.2d 249, 250 (1961); Ex parte Trodlier, 554 S.W.2d 793, 794 (Tex.Civ.App. San Antonio 1977, no writ); Greenhill & Beirne, Habeas Corpus Proceedings in the Supreme Court of Texas, 1 St. Mary's L.J. 1, 6, 11 (1969). As detailed below, the absence of notice of the contempt charge may render the order void and the confinement illegal.

Contemptuous conduct may be classified as either direct or constructive. Direct contempt occurs within the presence of the court; for example, an affront to the dignity of the court or disruptive conduct in the courtroom. Constructive contempt, on the other hand, is contemptuous conduct outside the presence of the court, such as the failure or refusal to comply with a valid court order. Ex parte Werblud, 536 S.W.2d 542, 546 (Tex.1976); Ex parte Ratliff, 117 Tex. 325, 327-28, 3 S.W.2d 406, 406-08 (1928); Comment, Contempt of Court in Texas, 14 S.Tex.L.J. 278, 285-86 (1973).

As we stated in Werblud, "this distinction has more significance than merely identifying the physical location of the contemptuous act, since more procedural safeguards have been afforded to constructive contemnors than to direct contemnors." 536 S.W.2d at 546. Direct contemnors are not entitled to notice of the contempt charge or a hearing because there is no factual dispute arising from contemptuous behavior that occurs in the court's presence. Ex parte Ratliff, 117 Tex. 325, 327, 3 S.W.2d 406, 406 (1928). In situations of constructive contempt, however, the court may not act in such a summary fashion. Due process of law requires that the constructive contemnor be given "full and complete notification" and a reasonable opportunity to meet the charges by way of defense or explanation. Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969); Accord, Ex parte Ratliff, 117 Tex. 325, 328, 3 S.W.2d 406, 407 (1928). As such, the court must issue a valid show cause order or equivalent legal process apprising the contemnor of the accusation. Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969); Ex parte Hodge, 389 S.W.2d 463, 463 (Tex.1965). A contempt judgment rendered without such notification is a nullity. Ex parte Ratliff, 117 Tex. 325, 327-28, 3 S.W.2d 406, 407 (1928).

It is undisputed that relator was charged and found guilty of constructive contempt in that he failed to comply with a court order. Therefore, we must determine from an examination of the record whether he was afforded notice of the charge upon which he was ultimately convicted. The following excerpt from the November 29th contempt proceeding is pertinent:

MR. BROWN (attorney for relator): Your Honor, the Respondent, Aubrey Jerald Gordon, most respectfully presents to the court a Motion to Set Aside the Show Cause Order. . . . The Show Cause Order itself, in essence, says, 'Aubrey Jerald Gordon is to appear this date and time in this court to show cause why he should not be held in and punished for contempt of this court for his conduct in refusing to comply with this court's Temporary Restraining...