Ex Parte Ratliff

• Citation: 3 S.W.2d 406
• Decision Date: 29 February 1928
• Docket Number: (No. 5041.)
• Parties: Ex parte RATLIFF.
• Court: Supreme Court of Texas

Page 406

3 S.W.2d 406

Ex parte RATLIFF.

(No. 5041.)

Supreme Court of Texas.

February 29, 1928.

Original application by E. J. Ratliff for a writ of habeas corpus against the sheriff of Bexar county. Discharge ordered.

West & Horner and Heilbron, Kilday & Howard, all of San Antonio, for relator.

Davis & Wright, of San Antonio, amicus curiæ.

GREENWOOD, J.

Mrs. Clyde Marten brought a suit against E. J. Ratliff in the Seventy-Third district court to cancel certain notes. She procured, on January 9, 1926, a temporary restraining order commanding Ratliff to desist from selling or disposing of the notes and to bring same into court pending final determination of the suit. Having denied under oath that he was the owner of the notes, but specially averring that he had, on January 7, 1928, sold, indorsed, and delivered the notes to another, defendant, Ratliff, moved the court to dissolve the temporary restraining order. On the 4th day of February, 1928, following a hearing of the motion to dissolve, the court entered a judgment reciting the restraining order, and reciting that since it appeared to the court from the evidence adduced on the hearing of the motion to dissolve the restraining order that the claim of defendant that he had sold, transferred, and delivered the notes prior to the institution of the suit was false, and that, if such sale or transfer occurred, it occurred subsequent to the service of the restraining order on the defendant, it was therefore ordered and adjudged that the defendant, E. J. Ratliff, was guilty of a contempt of the court, and that he pay to the sheriff of Bexar county a fine of $100 as punishment for such contempt, and that he forthwith deliver the notes to the district clerk, and that in default of the immediate payment of the fine and delivery of the notes the said Ratliff "be imprisoned not to exceed 3 days in the common jail of Bexar county, Tex., until he shall pay the said fine of $100 as herein directed, and until he shall turn over and deliver to said clerk * * * the notes aforesaid."

The defendant, Ratliff, having been taken into custody by the sheriff under a commitment issued on the foregoing judgment, applied for and was granted a writ of habeas corpus, and now seeks release on the ground that the judgment whereby he was deprived of his liberty is null and void.

It is manifest that the act adjudged contemptuous took place without the presence of the court. Such act was the real or pretended sale of the notes after the date of the restraining order. The court was utterly without a basis for any finding as to the true date of the notes' sale or transfer save as derived from the testimony of witnesses introduced on the hearing upon defendant's motion to dissolve the restraining order.

The distinction between direct and constructive contempt of court was declared in Ex parte Stricker (C. C.) 109 F. 149, to be:

"In the one the court sees and knows of all the acts which constitute the contempt, and needs no testimony to establish their existence as facts, while in the other testimony must be heard to inform the court, and, this being so, due process of law demands that this testimony should be heard publicly, in open court, and by both sides to the controversy, after due notice to the accused of what is alleged against him, in order that he may have an opportunity to meet and explain it."

One may be ready on a motion to dissolve a mere temporary restraining order affecting property, and be wholly unprepared to defend his liberty. One may be content with evidence on a motion to dissolve which he would regard as incomplete and inadequate to repel a charge carrying the threat of either monetary fine or deprivation of freedom. Relator was accorded one hearing only and that was on his own motion to dissolve. Without a charge of contempt in any form having been preferred against him, without reason to suspect that he was under any accusation of contempt, and without any opportunity to be heard either in person or by counsel, or to introduce any evidence in defense of his liberty, the court pronounced a sentence against him, on proof of transactions outside the court, and adjudged him guilty of contempt and assessed his punishment at both fine and imprisonment. The judgment is a nullity under a long and unbroken line of decisions of both the Supreme Court and the Court of Criminal Appeals. Ex parte Ireland, 38 Tex. 351; Ex parte Testard, 101 Tex. 251, 106 S. W. 319; Ex parte Lipscomb, 111 Tex. 418, 239 S. W. 1101; Ex parte Kilgore, 3 Tex. App. 247; Ex parte Foster, 44 Tex. Cr. R. 423, 71 S. W. 594, 60 L. R. A. 631, 100 Am. St. Rep. 866; Ex parte Landry, 65 Tex. Cr. R. 440, 144 S. W. 965; Ex parte Duncan, 78 Tex. Cr. R. 447, 182 S. W. 313, 2 A. L. R. 222; Ex parte O'Fiel. 93 Tex. Cr. R. 214, 246 S. W. 664.

The Supreme Court of the United States determined, in Cooke v. United States, 267 U. S. 535, 45 S. Ct. 390, 69 L. Ed. 767, that not only must the offender have notice and a trial in every contempt proceeding where the court's judgment is based even in part on the testimony of others, but that due process requires such notice and trial although the court had information of the contumacy "by confession of the party." In Cooke v. United States, supra, the court by Chief Justice Taft, said:

"Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed. See Hollingsworth v. Duane, 12 Fed. Cas. [No. 6616] 359, 360; In re Stewart. 118 La. 827 ; Ex parte Clark, 208 Mo. 121 [106 S. W. 990, 15 L. R. A. (N. S.) 389]."

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