Ex parte Werblud

Decision Date14 April 1976
Docket NumberNo. B--5639,B--5639
Citation536 S.W.2d 542
CourtTexas Supreme Court
PartiesEx parte Maurice WERBLUD.

Dunnam, Dunnam & Dunnam, W. V. Dunnam, Jr., Waco, for relator.

John L. Hill, Atty. Gen., Bernard D. Newsom, Asst. Atty. Gen., Austin, for respondent.

POPE, Justice.

Maurice Werblud applied for writ of habeas corpus to obtain his release from custody for his failure to pay two fines, each in the sum of $500 for violations of a temporary injunction committed on different days. On July 28, 1975, the 54th Judicial District Court temporarily enjoined Werblud from operating his rendering plant, Texas Pet Foods, Inc., in certain designated ways because it was emitting noxious odors in violation of the Texas Clean Air Act, Tex.Rev.Civ.Stat.Ann. art. 4477--5 (pamp. supp. 1974), and the Renderers' Licensing Act, Tex.Rev.Civ.Stat.Ann. art. 4477--6 (pamp. supp. 1974). Werblud appealed the injunction and after the court of civil appeals acquired jurisdiction of the case, the State instituted contempt proceedings based on several alleged violations of the injunction. The court of civil appeals conducted a factual hearing and then ordered that 'Maurice Werblud shall be, and is hereby, punished by a fine of $500.00 for each of said two days of contemptuous acts . . ..' Werblud refused to pay the fines and therefore was taken into custody by the Sheriff. Werblud asserts that he should be released because: (1) the injunction was so broad and indefinite that he did not have notice of the acts prohibited, (2) he was denied a trial by jury, and (3) he was forced to testify against himself. We agree with the third contention and grant the writ.

It is well settled that a court of civil appeals may exercise contempt powers when the contempt proceeding is instituted after the jurisdiction of the appellate court has attached. Ex parte Duncan, 127 Tex. 507, 95 S.W.2d 675 (1936); Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487 (1934); Musick v. Hunt, 364 S.W.2d 252 (Tex.Civ.App.--Houston 1963); International Ladies' Garment Workers' Local Union No. 123 v. Dorothy Frocks Co., 97 S.W.2d 379 (Tex.Civ.App.--San Antonio 1936). As this court stated in Ex parte Travis, supra at 489:

After the jurisdiction of the Appellate Court attached, it alone was clothed with the power to adjudicate the validity or invalidity of the temporary injunction and to exercise the discretion involved in compelling obedience to the injunction pending appeal.

When the proof of an alleged contempt requires a factual hearing, in some instances the court of civil appeals has conducted its own hearing. That was the procedure employed by the court of civil appeals in Ex parte Duncan, supra. The acts of contempt which were alleged in International Ladies' G. W. Union No. 123 v. Dorothy Frocks Co., supra, involved a rather extensive hearing about a number of separate acts of contempt and a number of persons. The court of civil appeals in that instance, while retaining jurisdiction of the contempt matter, referred the matter of taking testimony and hearing evidence to the judge of a District Court. The transcript of the evidence was then forwarded to the court of civil appeals. Either of those procedures is an appropriate one, though this court considers referral to the district court preferable in the ordinary case. When a jury is required to determine factual issues, the court of civil appeals should retain jurisdiction of the contempt hearing and is required to refer the factual hearing to a trial court. The trial court may then try the disputed facts before a jury and transmit the findings to the appellate court. There is no contention made in this court that the court of civil appeals lacked jurisdiction to entertain the contempt charge. Under the authorities mentioned above, that contention would be without merit.

The order which Werblud was charged with violating was not overbroad nor subject to the deficiency of uncertainty. Attached to the order were eighteen xeroxed pages of the Texas Clean Air Act and the Renderers' Licensing Act, but the order went on to specify the acts which were prohibited. The judgment of contempt made findings that Werblud had violated several of those specifications in the injunction order. 1 The injunction met the test of certainty required by Ex parte Slavin, 412 S.W.2d 43 (Tex.1967).

The Right to a Jury Trial in the Contempt Hearing

Werblud also says that his constitutional rights were violated by the court's denial of his request for a jury trial. He relies upon Articles V, VI, and XIV of the United States Constitution, as well as Article I, Sections 10 and 15, and Article V, Section 10, of the Texas Constitution. To determine Werblud's right to jury trial, we must first decide whether the contempt for which Werblud was charged was civil or criminal, whether it was direct or constructive, and whether it was petty or serious.

The purpose of civil contempt is remedial and coercive in nature. A judgment of civil contempt exerts the judicial authority of the court to persuade the contemnor to obey some order of the court where such obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience and therefore the civil contemnor 'carries the keys of (his) prison in (his) own pocket.' Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966); Gompers v. Buck Stove & R. Co., 221 U.S. 418, 442, 31 S.Ct. 492, 55 L.Ed. 797 (1910). In other words, it is civil contempt when one 'may procure his release by compliance with the provisions of the order of the court.' Ex parte Hosken, 480 S.W.2d 18 (Tex.Civ.App.--Beaumont 1972). This is the settled rule in Texas. Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948).

Criminal contempt on the other hand is punitive in nature. The sentence is not conditioned upon some promise of future performance because the contemnor is being punished for some completed act which affronted the dignity and authority of the court. Shillitani v. United States, supra; Beale, Contempt of Court Criminal & Civil, 21 Harv.L.Rev. 161 (1908); Magee, Contempt of Court of Texas, 14 S.Tex.L.J. 278 (1973). 17 Am.Jur.2d, Contempt § 4 (1964). This rule was well expressed in Ex parte Hosken at 23:

Where the primary purpose of the proceeding is to vindicate public authority the proceeding is usually denominated criminal. The action is punitive in nature. Nye v. United States, 313 U.S. 33, 43, 61 S.Ct. 810, 85 L.Ed. 1172, (1941); Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). Ordinarily, the punishment is fixed and definite and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts.

The affidavit of contempt filed by the State prayed that:

Texas Pet Foods, Inc., and Maurice Werblud, its owner, operator and principal corporate officer, be held in And punished for contempt for this court; that Maurice Werblud, as owner, operator and principal officer of the Defendant corporation be fined and imprisoned for such reasonable length of time commensurate with the gravity and seriousness of each act of contemptuous conduct alleged in this Affidavit . . .. (Emphasis added.)

The court of civil appeals made clear that its purpose in imposing the two fines upon Werblud was to punish him. The punishment was for completed acts of contempt and was not made conditional upon future compliance by Werblud. As the United States Supreme Court said in Gompers v. Buck Stove & R. Co., supra, and repeated in Shillitani v. United States, supra 384 U.S. at 369, 86 S.Ct. at 1535, 'It is not the fact of punishment but rather its character and purpose that often serves to distinguish civil from criminal contempt. The test may be what does the court primarily seek to accomplish by imposing sentence?' In this instance the answer to that test is punishment.

A contempt may also be classified as either direct or constructive. A direct contempt occurs within the presence of the court; while a constructive, or indirect, contempt occurs outside the presence of the court. Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928); Magee, supra at 281. 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. United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975); Ex parte Hill, 122 Tex. 80, 52 S.W.2d 367 (1932); Odom & Baker, Direct & Constructive Contempt, 26 Baylor L.Rev. 147 (1974). Note, Mayberry v. Pennsylvania: Due Process Limitation in Summary Punishments for Contempt of Court, 25 Sw.L.J. 805 (1971). The charge against Werblud was, of course, that of a constructive contempt. We have then, a constructive criminal contempt which is charged against one who is tried by judges other than the one who pronounced the original order.

One's right to a jury, however, depends upon still another test, whether the offense may be classified as petty or serious. The distinction was noticed in the recent decision of the Supreme Court in Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 2190, 45 L.Ed.2d 319 (1975). Although that case arose in the Federal court, the jury trial requirements of the Sixth Amendment to the United States Constitution apply with equal force to State prosecutions for contempt. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Muniz summarized the distinctions and from that case we extract these rules:

(1) Like other minor crimes, 'petty' contempts may be tried without a jury, but contemnors in serious contempt cases in the federal system have a Sixth Amendment right to jury trial;

(2) criminal contempt, in...

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