In re Dotson

• Decision Date: 05 June 2002
• Docket Number: No. 73986.,73986.
• Parties: Ex parte Michael DOTSON, Applicant.
• Court: Texas Court of Criminal Appeals

76 S.W.3d 393

Ex parte Michael DOTSON, Applicant.

No. 73986.

Court of Criminal Appeals of Texas, En Banc.

June 5, 2002.

William A. Thau, III, Corpus Christi, for Appellant.

Douglas K. Norman, Asst. DA, Corpus Christi, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

JOHNSON, J., delivered the opinion of the Court, in which MEYERS, PRICE, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

This is an original application for writ of habeas corpus. A Nueces County grand jury indicted James Vannoy for the offense of felony theft. On August 14, 2000, the state filed an application to subpoena three witnesses, one of whom was applicant. On August 22, 2000, an investigator with the district attorney's office served applicant with the subpoena. Applicant refused to obey the subpoena, telling the district attorney that he was scared to "point the finger at someone." No writ of attachment was served.

A jury was selected, and the state put on evidence from its first witness in Vannoy's prosecution. Applicant failed to appear in court to testify. The trial court issued a writ of attachment, but applicant could not be located. Because the case could not be proved without applicant's testimony, the prosecution against Vannoy was dismissed with prejudice.

On September 14, 2000, the state filed a motion requesting that applicant be held in contempt for failing to obey the subpoena and, upon a finding of contempt, that he be sentenced to a term of confinement in the Nueces County jail. On September 27, 2000, the trial court held a hearing pursuant to the state's motion. Counsel for applicant argued that, under Art. 24.05 of the Texas Code of Criminal Procedure,¹ the only punishment which could be imposed for refusing to obey a subpoena in a criminal case was a fine of $500. The state argued that a subpoena is a court order and that the trial court had the power to punish for contempt for failure to comply with an order.

The trial court found that Texas Rule of Civil Procedure 176.8(a)² is applicable to the extent that it authorizes punishment by contempt for failing to obey a subpoena. At the conclusion of the hearing, the trial court agreed with the state that a subpoena is a court order, and that, in the trial court's opinion, "there is no conflict between Rule 176.8 ... and Art. 24.05...." It further found that "if there is such a conflict, then the Court finds that and is of the opinion that Article 24.05 of the Code of Criminal Procedure is an unconstitutional infringement on the powers of the Court, the inherent powers of the Court and that it violates the separation of powers doctrine...." The court then found applicant in contempt and assessed punishment at 180 days confinement and a fine of $500. We are called upon to determine whether the trial court had the authority to confine applicant for contempt because of his failure to comply with a subpoena in a criminal case.

Generally, contempt is either direct, an act which occurs in the presence of the court, or indirect, an act done at a distance, such as disobeying an order of the court. 13 Tex. Jur.3d Contempt § 2 (1993). At the outset, we note that the instant case deals with criminal contempt.³ The trial court's judgment of contempt repeatedly refers to applicant's "punishment" for contempt. Furthermore, the case against Vannoy had been dismissed with prejudice, and contempt as coercion to produce testimony was no longer useful. Criminal contempt was the only type available to the trial court. Clearly, the claimed contemptuous act, failing to answer a subpoena and appear in court, did not occur in the presence of the court. The state asserts that contempt will lie because the subpoena is a court order; applicant disagrees.

The issue is which statutory provision applies in these circumstances. One of our general rules of statutory construction is that a more specific statute or rule will prevail over a more general one. Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim.App.1988). Rule 176.8, by its placement in the Rules of Civil Procedure, applies specifically to civil proceedings. Art. 24.05, by its placement in the Code of Criminal Procedure and by its plain language, applies specifically to criminal cases. It is therefore reasonable to assume that the legislature intended to create different consequences for a given act depending on the circumstances surrounding that act.

The case before us arose from a criminal case, and the sentence imposed constitutes criminal contempt. Because applicant's refusal to answer was in the context of a criminal prosecution, we apply the statute which is specific to such failure, Art. 24.05, and hold that such failure does not fall under the provisions of civil Rule 176.8. The penalty for failure to answer a subpoena in a criminal case is limited to the provisions of Art. 24.05. Because Art. 24.05 speaks only in terms of failure to answer a subpoena and does not speak in terms of contempt, it is unnecessary to decide whether a subpoena is a court order. The punishment assessed by the trial court exceeded that permitted by law, and the trial court did not act within its authority.

Relief is granted.

WOMACK, J., filed a concurring opinion.

HERVEY, J., filed a concurring opinion, in which HOLCOMB, and COCHRAN, JJ., joined.

KELLER, P. J., filed a dissenting opinion, in which KEASLER, J., joined.

WOMACK, J., filed a concurring opinion.

I join the Court's judgment granting relief under our writ of habeas corpus. I reach that result on a different basis.

I agree with the Court that Rule of Civil Procedure 176.8(a) does not authorize a contempt action in a criminal case. This seems obvious.

Although the district court specified Rule 176.8(a) as its authority, any law that authorized the court's order would require us to deny relief to this applicant. The law that comes closer to authorizing the judgment of contempt is Section 21.002(a) & (b) of the Government Code.¹ Section 21.002 is not limited to civil cases as Rule 176.8(a) is. This statute, in its pre-codification form,² came before us in Ex parte Wilkinson, 641 S.W.2d 927 (Tex.Cr.App. 1982).

Wilkinson and another person refused to testify before a grand jury. A district court held them in contempt, fined them $500, and ordered them imprisoned for 6 months. We issued the writ of habeas corpus.

The witnesses argued that Article 20.15, not the general contempt statute that is now codified as Section 21.002, controlled the district court. We agreed.

If it can be argued, however, that said [statutes] are in pari materia, then under the rules of statutory construction the special statute, Article 20.15, would govern over ... the general statute.

The two statutes are not, however, in pari materia. Article 20.15 and its forerunners have long been a part of our criminal procedural laws. The procedure involves only the district court and a witness who may be held in contempt for refusing to testify before the grand jury. [The general statute], enacted in 1971, deals with the contempt power of all courts concerning witnesses, officers of the court and others in a variety of situations. It is clear the two statutes are contained in different legislative acts, provide for different penalties, and are designed to serve different purposes and objectives. The provisions of the statutes are irreconcilable and the special statute, Article 20.15, must prevail under the rules of statutory construction. Although [the general statute] is the latter enactment, there is no manifest intent that the general provisions thereof relating to any act of contempt before any court control.³

The Court uses similar reasoning today and reaches the same result.⁴ I agree, on the basis of Wilkinson.

HERVEY, J., filed a concurring opinion in which HOLCOMB, and COCHRAN, JJ., joined.

I join the Court's opinion. Since applicant did not refuse to obey the subpoena in the court's presence and since applicant did not refuse to obey the subpoena after being ordered to do so by the trial court, the trial court had no inherent or statutory power to hold applicant in contempt based solely on his refusal to obey the subpoena.¹ The trial court, therefore, could only fine applicant according to the statutory procedures for punishing those who refuse to obey properly served subpoenas. See Articles 24.05, 24.06, 24.07, 24.08, 24.09, 24.10, Texas Code of Criminal Procedure. This case, therefore, does not require the Court to address whether Article 24.05 violates constitutional separation of powers principles by usurping the judiciary's contempt power under Section 21.002, Texas Government Code.

Had the trial court ordered applicant to obey the subpoena and had applicant refused,² then this Court would have to address this separation of powers issue. But even then, there would be no separation of powers problem. The trial court could apply the statutory Article 24 procedures set out above to punish applicant for refusing to obey the subpoena. The trial court could also apply its Section 21.002 contempt power to punish applicant for refusing to obey the court's order which is a separate act from applicant's refusal to obey the subpoena.³ Compare Ex parte Edone, 740 S.W.2d 446, 449 (Tex.Cr.App. 1987) (court could properly hold applicants in contempt for violating court's order to testify before the grand jury) with Ex parte Wilkinson, 641 S.W.2d 927, 933 (Tex. Cr.App.1982) (court could not properly hold applicants in contempt based only on their refusal to testify before the grand jury).⁴ Under these circumstances where they are applied to punish separate acts, Article 24.05 and Section 21.002 can each be reconciled and given effect and neither branch of government usurps a power that belongs to the other.

With these comments I join the Court's opinion.

KELLER, P.J., filed a dissenting opinion in which KEASLER, J. joined.

I believe that the district court had inherent power to...