Ex parte Winfree, A-4391

• Citation: 153 Tex. 12,263 S.W.2d 154,41 A.L.R.2d 1259
• Decision Date: 16 December 1953
• Docket Number: No. A-4391,A-4391
• Parties: , 41 A.L.R.2d 1259 Ex parte WINFREE.
• Court: Supreme Court of Texas

Page 154

263 S.W.2d 154

153 Tex. 12, 41 A.L.R.2d 1259

Ex parte WINFREE.

No. A-4391.

Supreme Court of Texas.

Dec. 16, 1953.

Bowlen Bond, Teague, for relator.

Ralph W. Yarborough and E. Wayne Thode, Austin, for respondents.

GARWOOD, Justice.

This original habeas corpus proceeding was brought by D. P. Winfree on behalf of Harvey Winfree (hereinafter called relator) who has been committed to the custody of the sheriff of Freestone county by the District Court for the 87th Judicial District for contempt in failing to pay some $50 temporary alimony due by him under a previous and valid order of the same court. The contempt judgment followed a written but unsworn complaint of the other party to the divorce proceeding, a show cause order of the court, due service of the latter upon the relator and a proper hearing. The judgment assessed a fine of $5 and court costs of $5.50 and provided that relator be confined until he should pay these sums together with the delinquent alimony. After releasing the relator on bail and considering the arguments presented in support of and against his position, we have concluded that on the record before us his commitment was not invalid.

Our sole ground for issuing the writ was the above-mentioned fact that the complaint, which initiated the contempt proceedings, is unverified. Ex parte White, 149 Tex. 155, 229 S.W.2d 1002; Ex parte Freeman, 144 Tex. 392, 191 S.W.2d 6; Ex parte Cox, 133 Tex. 152, 127 S.W.2d 443; Ex parte Scott, 133 Tex. 1, 10, 123 S.W.2d 306, 311, 126 S.W.2d 626; Ex parte Sturrock, 80 Tex.Cr.R. 307, 189 S.W.487; Ex parte Duncan, 78 Tex.Cr.R. 447, 182 S.W. 313, 2 A.L.R. 222; Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962; Ex parte Foster, 44 Tex.Cr.R. 423, 71 S.W. 593, 60 L.R.A 631. The thesis that verification is essential includes, of course, the proposition that there must be a complaint to verify. Ex parte White, supra. The latter decision, as well as those in the Duncan and Landry cases, stand for the further point of present interest, that a show cause order or rule nisi followed by due service and proper hearing, while obviously sufficient to apprise the contempt defendant of the charge against him and afford him an opportunity to present his defense, is yet no substitute for an affidavit of accusation. The philosophy of the White, Freeman and Cox cases is the somewhat general one of Ex parte Scott-that contempt proceedings are essentially criminal in nature, so that 'jurisdiction' must arise from a sworn complaint as for the perpetration of a crime, although no written law specifies that it must, except in the case of Rule 692, Texas Rules of Civil Procedure (disobedience of an injunction) hereinafter mentioned and in Art. 666-7, Vernon's P.C.Tex.Ann. (recalcitrance of witness before the Texas Liquor Control Board). The same idea-somewhat blended with that of due process-is found in Ex parte Landry, in which the Court of Criminal Appeals leaned expressly on our Texas 'Bill of Rights' provision that in all criminal prosecutions the accused 'shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.' Art. 1, Sec. 10, Const.Vernon's Ann.St. (the preceding sentence of which guarantees 'the accused' trial by jury).

There are, indeed, obvious similarities between contempt proceedings and criminal proceedings, in that some of the former involve, in a sense, punishment, and all of them involve actually or potentially the restraint of the body of the contempt defendant as distinguished from the more usual civil procedure of appropriating his property by execution. In this sense even classical civil processes such as mandamus bear ultimate resemblance to the criminal law. On the other hand there are equally obvious differences. The prime object of bodily restraint in many, no doubt most, contempt proceedings is simply the enforcement of a limited class of civil or procedural judicial orders or judgments, although a consequence of disobedience may be in terms of punishment, accompanied or not accompanied with duration of confinement until the violated order should be complied with. Even in cases such as disorderly conduct in the courtroom, the object of the corresponding punishment is largely one of enabling the court to perform its regular functions as distinguished from the protection of society as a whole; and thus in our elaborate codes of criminal law and procedure we find no provision defining contempt in terms of crime or (with exception of Art. 666-7, supra) prescribing machinery for its prosecution, even as to cases wherein the idea of punishment is more conspicuous than that of mere enforcement of some prior court order. On the contrary, the instances wherein contempt is mentioned, for example, Art. 40, Vernon's Tex. Code Crim.Proc., rather clearly refrain from confusing it with crime. Sec. 10 of the Bill of Rights mentioned above in connection with Ex parte Landry, specifies no method of procedure for contempt cases and, with its various requirements such as trial by jury, rather clearly refers only criminal prosecutions in the ordinary sense. Doubtless one of several important reasons for requiring a complaint or indictment and verification thereof as the initial and a jurisdictional step in criminal prosecutions is that the complaint is generally followed automatically by the bodily...