Ex parte White, A-2628

• Citation: 149 Tex. 155,229 S.W.2d 1002
• Decision Date: 17 May 1950
• Docket Number: No. A-2628,A-2628
• Parties: Ex parte WHITE.
• Court: Supreme Court of Texas

Page 1002

229 S.W.2d 1002

149 Tex. 155

Ex parte WHITE.

No. A-2628.

Supreme Court of Texas.

May 17, 1950.

Claude D. Bell, Jr., Dallas, for petitioner.

Phinney, Hallman, Reed & Holley, by Pat Reed, Dallas, for receiver in trial court.

HART, Justice.

On December 22, 1949, one of the District Courts of Dallas County appointed a receiver for the assets of White-Webb Drilling Company, a corporation, and a partnership of the same name, and certain properties of James W. White, and ordered the receiver to take possession of the assets and properties. On February 23, 1950, the receiver filed a complaint in which he alleged that the present relator, James W. White, had failed and refused to deliver specified properties to the receiver and prayed that White be required to show cause why he should not be held in contempt of court. An order was entered by the court on February 23 requiring White to appear on March 3 and show cause why he should not be held in contempt. On March 3, White appeared through counsel and filed a motion to quash the notice issued by the clerk, a plea to the jurisdiction and a motion to dismiss the receiver's complaint, and a motion for a continuance. The court overruled these pleas and motions and heard evidence on March 3, and then recessed the hearing until March 9, when further evidence was presented. At the end of the hearing, the court on March 9 entered an order which did not hold White in contempt of court but ordered him to turn over to the receiver certain described properties, including a Cadillac automobile and $8,500.00 in cash, and also ordered him to show cause on March 16 why he should not be held in contempt of court for failing to turn over to the receiver those properties.

White's attorney was present on March 3, and also at the beginning of the hearing on March 9, but left upon being advised by the court that he would not sustain the pleas attacking the court's jurisdiction. He was not present when the court entered the order of March 9, described above, but a copy of the order was mailed to and received by him before March 16.

On March 16, the court held a hearing as provided in the order of March 9. Neither White nor his counsel was present at this hearing. No complaint of any kind was filed with the court after the entry of the order of March 9. After hearing evidence the court on March 16 entered its order adjudging that White was in contempt of court in disobeying the order of March 9, by failing to deliver to the receiver the two items of property described in the order of that date. White was not found guilty of violating any other order or judgment of the court. White's punishment was fixed at imprisonment in jail for seventy-two hours and a fine of $100, and it was ordered that White should be held in jail by the sheriff until the costs should be paid and the described properties should be delivered to the receiver.

On March 20, a commitment was issued on the contempt judgment and the relator was taken into custody by the sheriff of Dallas County, by whom he was being held when a petition for a writ of habeas corpus was presented to this court. We granted leave to file the petition and ordered the release of the relator upon bond, pending oral argument by the attorneys for the relator and the receiver.

The first ground of attack upon the judgment holding relator in contempt is that it was not supported by any complaint stating the respects in which the relator was charged with violating the court's order of March 9. We sustain this contention and it will therefore be unnecessary to consider the other points relied upon by the relator.

In Ex parte Scott, 133 Tex. 1, 10, 123 S.W.2d 306, 311, 126 S.W.2d 626, this Court said: 'It is the rule in this State, as well as the rule generally, that before a court has jurisdiction to punish a person for a contempt committed out of the presence of the court, there must first be filed an information or complaint in writing, duly sworn to, informing the accused of the nature and cause of the accusation against him.'

In stating this rule, the court followed decisions of the Court of Criminal Appeals in Ex parte Foster, 44 Tex.Cr. 423, 71 S.W. 593, 60 L.R.A. 631, 100 Am.St.Rep. 866; Ex parte Landry, 65 Tex.Cr. 440, 144 S.W. 962; Ex parte Duncan, 78 Tex.Cr. 447, 182 S.W. 313, 2 A.L.R. 222, and Ex parte Sturrock, 80 Tex.Cr. 307, 189 S.W. 487, as well as the general statement of the law in 13 C.J., 'Contempt', § 89. See also 17 C.J.S., 'Contempt', § 71; 12 Am.Jur. 'Contempt' § 68; 9 Tex.Jur. 'Contempt' § 34; annotations, 2 A.L.R. 225; 118 A.L.R. 155. The holding in the Scott case has been followed in Ex parte Cox, 133 Tex. 152, 127 S.W.2d 443, and Ex parte Freeman, 144 Tex. 392, 191 S.W.2d 6.

In Ex parte Hill, 122 Tex. 80, 82, 52 S.W.2d 367, 368, there is an indication that it is proper in some instances to start contempt proceedings by a rule nisi, entered by the court, rather than by the filing of a complaint: 'The proceeding should, in some instances, be begun by affidavit duly filed setting forth the matters and things involved in the alleged contempt. Also, in some instances, the proceeding may be commenced by judgment nisi, followed by summons, notice, and hearing in open court.'

There is also a statement to the same effect in Ex parte Pyle, 134 Tex. 148, 133 S.W.2d 565, in which the decision in the Hill case is cited, but no reference is made to the Scott case or the Cox case. Particular emphasis was laid by the court in its opinion in the Pyle case on the case of Ex parte Kilgore and Johnson, 3 Tex.App. 247, which contains statements that the proper way to initiate a contempt proceeding is by a rule nisi. See 3 Tex.App. 253. This procedure seems to be approved in other jurisdictions. Baumgartner v. Joughin, 107 Fla. 858, 143 So. 436; Hunter v State, 251 Ala. 11, 37 So.2d 276; In re Fletcher, 71 App.D.C. 108, 107 F.2d 666.

However, in Ex parte Landry, 65 Tex.Cr. 440, 144 S.W. 962, and Ex parte Duncan, 78 Tex.Cr. 447, 182 S.W. 313, 2 A.L.R. 222, the Court of Criminal Appeals held that an order to show cause entered by the court was not a sufficient basis for jurisdiction to punish for a constructive contempt, where no sworn complaint had been filed. In Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 126 S.W.2d 626, this court deliberately announced its view that proceedings in contempt cases should conform as nearly as practicable to proceedings in criminal cases, and cited Ex parte Landry and Ex parte Duncan, supra, to sustain its holding that a sworn, written complaint must be filed before a court has jurisdiction to punish for a contempt committed out of the presence of the court. We think that this deliberate and carefully considered holding should be controlling over any inconsistent statements contained in Ex parte Hill or Ex parte Pyle, supra. Moreover, on principle we think that the requirement of a written complaint setting out the offense with which the defendant is charged is a sound precaution for the protection of the accused and that it does not unduly hamper the effective administration of justice, in cases of constructive contempt.

The procedure followed in this state in contempt cases is based on judicial decisions, statutes and rules. See 2 Stayton, Annotated Texas Forms (1948) §§ 1621-1631. In a case of constructive contempt, the first step to...