Ex parte Krupps

Decision Date11 June 1986
Docket NumberNo. 69491,69491
Citation712 S.W.2d 144
PartiesEx parte Charles E. KRUPPS, Harold O. Edgington, H.O. Mathews, Vincent Rose, Lattie Rose, Rose Henley & John Henley, Applicants.
CourtTexas Court of Criminal Appeals
OPINION

W.C. DAVIS, Judge.

This is an original application for writ of habeas corpus in which seven applicants seek relief from a judgment holding them in contempt of County Court at Law No. 3 of Jefferson County. Applicants (Charles Edward Krupps, Harold O. Eddington, Howard D. Matthews, Sr., Vincent Rose, Lattie Jo Darby Rose, Rosie Henley, and John Ellis Henley) were summarily held in contempt of Respondent Donald J. Floyd on June 14, 1985 for "being disrespectful by failing to rise upon the entrance of the Court after being duly admonished and warned of consequences of their failure to do so." Applicants' punishment was fixed at thirty days confinement in the county jail.

Applicants urge three grounds for relief. First, applicants claim that the order of contempt is void because the trial court failed to provide them with due process. Second, applicants claim that there is no evidence which would support a contempt conviction. Third, applicants claim that the First Amendment's Free Exercise Clause creates an exemption to the "rising" requirement.

The record is presented to this Court largely in the form of affidavits. Although the use of affidavits presents this Court with the unusual circumstance of an informal record, such informality is not without precedent in a direct contempt. See Ex parte Herring, 438 S.W.2d 801, 803 (Tex.1969); Ex parte Hosken, 480 S.W.2d 18, 22, n. 4 (Tex.Civ.App.--Beaumont 1972). As the Supreme Court has noted:

"A contempt holding depends in a very special way on the setting, and such elusive factors as the tone of voice, the facial expressions, and the physical gestures of the contemnor; these cannot be dealt with except on full ventilation of the facts. Those present often have a totally different impression of the events from what would appear even in a faithful transcript of the record." In re Little, 404 U.S. 553, 556, 92 S.Ct. 659, 661, 30 L.Ed.2d 708 (1972) (Burger, C.J., concurring).

This is especially true where, as here, this Court must review the trial court's decision based on affidavits. Therefore, we review the affidavits with caution and restraint.

On June 13, 1985, Applicant Krupps appeared as a pro se defendant in County Court at Law No. 3 in Jefferson County before Respondent Judge Donald J. Floyd. The purpose of the appearance was to proceed upon a trial de novo from a conviction in Justice of the Peace Court for operating a motor vehicle without liability insurance. The other applicants had accompanied Krupps and were present as spectators. Upon completion of voir dire, court was recessed and the bailiff, Deputy Ben Collins, advised everyone to rise. As Judge Floyd exited the courtroom, the bailiff noticed that the applicants did not stand. The bailiff advised the applicants that in the future they were to stand whenever a judge entered or exited a courtroom. The applicants responded that they would continue to remain seated. The bailiff notified Judge Floyd of the applicants' intentions. The trial remained recessed until the following morning.

On June 14, 1985, before court convened, Judge Floyd instructed applicants, through the bailiff, that they would be held in contempt if they continued to refuse to rise. Several spectators left the courtroom at this point, deciding to stay outside until after court had convened. However, applicants again informed the bailiff that they would not rise. The bailiff informed Judge Floyd that the applicants had indicated they would continue to refuse to rise upon entrance of the judge. Judge Floyd then had the bailiff bring Krupps to his chambers. In the presence of Deputy Collins, Deputy Pat Pilgrim and Judge Floyd, Krupps made it clear that he would continue to refuse to stand. He explained to the judge that, as a "follower of Christ," he could not rise upon the entrance or exit of a judge. Judge Floyd offered applicants, through Krupps, the alternative of remaining outside of the courtroom until court had convened. 1 Krupps again refused. Judge Floyd continued to advise Krupps that such a refusal was contemptuous. Krupps then returned to the courtroom.

When court convened, the bailiff advised everyone to rise. The applicants did not stand, and Judge Floyd held them in contempt of court.

Applicants initially argue that they were not accorded due process in their contempt adjudication. The due process required for a particular contempt adjudication depends upon the type of contempt which has occurred. Contempts in Texas are divided into two types: direct and constructive. 13 Tex.Jur.3d, Contempt, § 2, p. 183.

In Ex parte Supercinski, 561 S.W.2d 482 (Tex.Cr.App.1977), this Court describes acts constituting direct contempt as those in which the court knows all of the secondary facts. Direct contempt is further defined in Black's Law Dictionary as "[t]hose [acts] committed in the immediate view and presence of the court or so near the presence of the court as to obstruct or interrupt the due and orderly course of the proceedings." Black's Law Dictionary (Fifth Ed.1983), 168.

Direct contempt adjudications satisfy the demands of due process through summary conviction and punishment without the need for prior notice or a hearing. Ex parte Harvill, 415 S.W.2d 174 (Tex.1967); Ex parte Norton, 144 Tex. 445, 191 S.W.2d 713 (1946). "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 Gordon, 584 S.W.2d 686, 688 (Tex.1979).

The United States Supreme Court has recognized the power of Texas courts to use summary procedures in cases involving direct contempt. Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569 (1949). In Fisher, supra 69 S.Ct. at 427, the Court reasoned:

"Historically and rationally the inherent power of courts to punish contempts in the face of the court without further proof of facts and without aid of jury is not open to question. This attribute of courts is essential to preserve their authority and to prevent the administration of justice from falling into disrepute. Such summary conviction and punishment accords due process of law."

The Court, in a footnote, added that "[t]his rule is well established in Texas." Id., 69 S.Ct. at 427 n. 4.

Constructive contempt has been defined as relating to "acts which require testimony to establish their existence." Ex parte Cooper, 657 S.W.2d 435, 437 (Tex.Cr.App.1983). Constructive contempt is further defined in Black's Law Dictionary as "[t]hose [acts] which arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, ..." Black's Law Dictionary (Fifth Ed.1983), 167.

In Cooper, supra, the Court found the failure of an attorney to appear in court to be an example of constructive contempt. Such an occurrence constitutes an act which happened outside the presence of the court and upon which testimony will be required in order to discover the relevant facts.

Constructive contempt adjudications satisfy the demands of due process by requiring that the contemnor be given notice, a hearing and the opportunity to obtain an attorney. Ex parte Hodge, 389 S.W.2d 463 (Tex.1965); Ex parte Flournoy, 159 Tex. 425, 312 S.W.2d 488 (1958). These due process requirements are necessary because all of the elements of the offense are not personally observed by the court. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Ex parte Pyle, 134 Tex. 148, 133 S.W.2d 565 (1939).

With this understanding of the due process differences in direct and constructive contempt adjudications, we now must determine whether the facts of the instant case warrant a direct or constructive contempt proceeding, or both.

In the instant case Bailiff Collins instructed the six applicants to rise. They refused to do so. Judge Floyd, through Bailiff Collins, instructed the six that, should they refuse to rise, they would be held in contempt. The affidavit of Bailiff Collins makes clear that the six applicants understood that the threat of contempt originated with Judge Floyd. Applicants again refused to rise. Bailiff Collins informed Judge Floyd that the applicants would refuse to rise upon his entrance into the courtroom. When Judge Floyd entered he saw that the applicants had not risen and held them in contempt.

Bailiff Collins, as an officer of the court, 2 admonished the applicants at the behest of Judge Floyd. 3 He made clear to the applicants that the admonition originated with Judge Floyd. The judge was advised that the applicants intended to refuse to rise when he entered. The applicants did in fact remain seated when Judge Floyd entered the courtroom and were consequently held in contempt and sentenced to thirty days in jail. Therefore, the admonishment was made in the presence of a court officer acting under direct instruction from the judge. The act which constituted the contempt, the applicants' failure to rise after being admonished, occurred in the presence of the judge. Thus, the entire act of contempt occurred in the presence of the court 4 making this direct contempt. Under these circumstances, the use of summary direct contempt proceedings were proper and did not violate applicants' due process rights.

Krupps, relying upon Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974) and Ex parte Avila, 659 S.W.2d 443, (Tex.Cr.App.1983), argues that this Court has extended the requirements of notice...

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18 cases
  • Ex parte Rathmell
    • United States
    • Texas Court of Criminal Appeals
    • September 17, 1986
    ...my hunting license and donning one of those marvelous British safari hats for the occasion," see Ex parte Krupps et al., 712 S.W.2d 144 (Tex.Cr.App.1986) (Campbell, J. dissenting opinion), I shall then further discuss the majority The concept and guarantee against double jeopardy, as provid......
  • In re Reece
    • United States
    • Texas Supreme Court
    • May 27, 2011
    ...contempt entitles the contemnor to more procedural safeguards than those afforded to direct contemnors); see also Ex parte Krupps, 712 S.W.2d 144, 147 (Tex.Crim.App.1986) (explaining that constructive contempt adjudications satisfy due process if the contemnor is given notice, a hearing, an......
  • State ex rel. Rosenthal v. Poe
    • United States
    • Texas Court of Criminal Appeals
    • February 12, 2003
    ...Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex.Cr.App.I998) (Meyers, J., concurring); Ex parte Krupps, 712 S.W.2d 144, 153 (Tex. Cr.App.1986) (Onion, P.J., concurring) ("judge's control of the courtroom must be maintained with as little burden on him as possible") and at 160 (Campbell, J.,......
  • Ex parte Davis
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    • Texas Court of Criminal Appeals
    • December 18, 1996
    ...art. V, § 8 has much broader availability to applicants than a writ filed pursuant to art. 11.07); and, Ex parte Krupps, 712 S.W.2d 144, 151 (Tex.Cr.App.1986) (Onion, P.J., concurring) ("The Court has general and unlimited jurisdiction to issue original writs of habeas corpus in all cases, ......
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1 books & journal articles
  • Summary Contempt Power in the Military: A Proposal to Amend Article 48, UCMJ
    • United States
    • Military Law Review No. 160, June 1999
    • June 1, 1999
    ...1998); In re Bell, 894 S.W.2d 119 (Tex. Spec. Ct. Rev. 1995); Ex parte Knable, 818 S.W.2d 811 (Tex. Crim. App. 1991); Ex parte Krupps, 712 S.W.2d 144 (Tex. Crim. App. 1986); UTAH CODE ANN. §§ 78-7-17, 78-7-18m 78-32-1, 78-32-3, 78-32-120 (1998); VT R. CRIM. P. 42; State v. Allen, 496 A.2d 1......

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