Ex parte Sanchez

• Decision Date: 12 February 1986
• Docket Number: No. C-4829,C-4829
• Citation: 703 S.W.2d 955
• Parties: Ex parte Hector SANCHEZ, Relator.
• Court: Texas Supreme Court

Page 955

703 S.W.2d 955

Ex parte Hector SANCHEZ, Relator.

No. C-4829.

Supreme Court of Texas.

Feb. 12, 1986.

Thomas G. White, Corpus Christi, for relator.

Larry Ludka and Tom Greenwell, Corpus Christi, for respondent.

ORIGINAL HABEAS CORPUS PROCEEDING

KILGARLIN, Justice.

Hector Sanchez, official court reporter for the 103rd Judicial District Court of Cameron County, was held in contempt by the Court of Appeals for the Thirteenth Supreme Judicial District for failing to file, as ordered, a statement of facts in a cause on appeal in that court. His punishment was a $500 fine and thirty days in jail, and he was further ordered confined until he purged himself of contempt by completing and filing the statement of facts.

Sanchez has sought a writ of habeas corpus from this court, asserting four reasons why his restraint is unlawful. Pending disposition of this case, we released Sanchez from the Nueces County jail upon his posting a proper bond as ordered by this court. Now, having concluded that the order of the court of appeals holding Sanchez in contempt was proper, we deny the writ of habeas corpus and order Sanchez remanded to the custody of the Nueces County sheriff.

The underlying cause in the court of appeals is Lee Ross Puckett v. Grizzard Sales, Inc.. The record on appeal was due October 11, 1985. Sanchez received a request for the statement of facts on October 3, 1985, and signed an affidavit in support of Puckett's motion to extend the time for filing the record on appeal. Sanchez's affidavit stated "[t]he Statement of Facts can be prepared by December 11, 1985." In that affidavit, Sanchez estimated that the statement of facts would be 350 pages in length. The court of appeals, in an order dated November 14, 1985, extended the time for filing the record but specifically ordered Sanchez to prepare and file the statement of facts by December 11, 1985. A copy of the order was received by Sanchez on November 19, 1985.

Sanchez was already under order to prepare and file a statement of facts in a criminal case on appeal in the same court. In that case, Domingo Gonzalez, Jr. v. The State of Texas, a statement of facts had been requested from Sanchez on October 10, 1984. The court of appeals ordered Sanchez to complete and file the statement of facts in Gonzalez by August 30, 1985. That statement of facts was not timely filed, and, after two hearings on contempt, Sanchez was incarcerated in the Nueces County jail on November 26, 1985. ¹

Sanchez did not file a statement of facts in Puckett by December 11, 1985. Accordingly, on December 12, 1985, the court of appeals ordered Sanchez to appear on December 23, 1985 and show cause why he should not be held in contempt for failing to file the statement of facts in Puckett by the date ordered. Sanchez, still in the Nueces County jail as a result of the contempt holding in Gonzalez, was promptly served with that show cause order.

The attorney for Sanchez in this habeas corpus proceeding was also his attorney in the last Gonzalez contempt hearing, November 7, 1985. ² On December 4, 1985, the attorney, Thomas G. White, who serves without compensation by appointment from the court of appeals, met with Sanchez in the Nueces County jail. White discussed Sanchez's needs for securing his court reporting equipment, notes, and other matters necessary for the preparation of the statement of facts in Puckett.

White concedes in argument before this court that Sanchez did not attempt to obtain his notes and equipment until December 15, 1985, because he was under the mistaken belief that he would be released from the Nueces County jail on the basis of two for one credit. Sanchez's testimony admits much the same, except he places the date as December 13, 1985. Upon realizing his mistake, Sanchez testified that he requested the equipment be delivered to him. However, he received notes from another case, rather than notes from Puckett.

In any event, from about December 15, 1985 until the hearing on contempt on December 23, 1985, Sanchez still had not completed the statement of facts in Puckett. Moreover, in addition to Puckett, Sanchez owed statements of facts in at least six criminal appeals and two civil appeals in the Corpus Christi court. The records of that court reflect that it became necessary on December 31, 1985 for the court, on its own motion, to extend the filing of the statements of facts in those other eight cases and in Puckett until further order. By December 31, 1985, Sanchez had completed and filed the statement of facts in Gonzalez.

Sanchez's four grounds for habeas corpus relief are: (1) he was not granted a ten-day delay of the contempt hearing as requested in a motion for continuance; (2) because he was in jail as a result of the Gonzalez contempt, and without equipment and cooperation from the Nueces County Sheriff's Office, there was impossibility of compliance with the November 14, 1985 order; (3) if he were sentenced for contempt in each of the additional cases in which he owed statements of facts, his punishment could exceed six months, entitling him to a jury trial, and thus it was error to overrule his motion to consolidate all causes in which statements of facts were due; and (4) civil contempt (the coercive aspect of the order) and criminal contempt (the thirty days confinement and $500 fine punishment aspect) cannot be combined in the same order of contempt.

The last two contentions do not require much discussion. It is true that the United States Supreme Court has said that where a court may impose a sentence in excess of six months, a contemner may not be denied a right of trial by jury. Bloom v. Illinois, 391 U.S. 194, 198-202, 88 S.Ct. 1477, 1480-82, 20 L.Ed.2d 522 (1967). It is also true that even when offenses are separate and the sentence for each contempt is less than six months, the contemner is nevertheless entitled to a trial by jury if the offenses are aggregated to run consecutively, so as to result in punishment exceeding six months. Ex Parte McNemee, 605 S.W.2d 353, 356 (Tex.Civ.App.--El Paso 1980, habeas granted).

However, Sanchez asks us to assume that he will fail to timely file the statements of facts in the eight additional cases; that this will result in a show cause order from the court of appeals; that this will next result in a holding of contempt; that this will further result in punishment for each separate offense; and, that such combined punishment will exceed a total of six months confinement. We cannot possibly make all of these assumptions, nor could the court of appeals in passing upon Sanchez's motion for consolidation of all of the various causes. There was no error in the court of appeals overruling the motion to consolidate causes.

As to combining criminal contempt and civil contempt (punishment and coercion) into one order, Sanchez cites no cases. Moreover, Sanchez offers no policy argument as to why the two types of contempt should not be combined in the same order and we can think of no reason why the orders should be separate. Separate orders would only tend to confuse jailers. A judgment combining punishment and coercion was found not to be in violation of a predecessor contempt statute. Ex Parte Klugsberg, 126 Tex. 225, 229, 87 S.W.2d 465, 468 (1935). The enactment of Tex.Rev.Civ.Stat.Ann.art. 1911a ³ does not change the permissiveness of incorporating the two forms of contempt into one order.

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