In re Hesse
| Decision Date | 14 June 2018 |
| Docket Number | No. 07-18-00226-CR,07-18-00226-CR |
| Citation | 552 S.W.3d 893 |
| Parties | IN RE David Christopher HESSE, Relator |
| Court | Texas Court of Appeals |
Randall C. Sims, for Real party in interest The State of Texas.
Honorable Edward Lee Self, for Respondent Self, Edward Lee.
L.T. "Butch" Bradt, Tracy D. Cluck, Austin, for Relator Hesse, David Christopher.
Before CAMPBELL, PIRTLE, and PARKER, JJ.
Relator, David Christopher Hesse, seeks a writ of mandamus from this court directing Respondent, the Honorable Edward Lee Self, to vacate a prior order denying Relator a jury trial in a pending section 21.002(d) contempt proceeding1 and directing Respondent to set the matter for a jury trial.2 Because Relator is not entitled to the relief requested, we will deny his petition.
Relator is an attorney practicing criminal defense work in Amarillo, Potter County, Texas. On April 8, 2016, while acting in that capacity as retained counsel for Adoun Phommivong, in a criminal prosecution pending in the 251st District Court, Relator was held in contempt by the Honorable Ana E. Estevez for using language that Judge Estevez deemed inappropriate for proper courtroom decorum. See § 21.002(b) (). At that point, Relator insisted upon his right to a section 21.002(d) hearing before an assigned judge. See § 21.002(d) ().
On October 7, 2016, Judge Estevez signed a document entitled Amended Notice of Allegations of Contempt. The notice provided that the allegations of contempt would be heard by Judge Self on November 30, 2016, and that the range of punishment would be by a fine of not more than $500, or confinement in the county jail for a period of not more than six months, or by both fine and confinement. For several reasons not relevant to this proceeding, that hearing was delayed until 2018.
On February 8, 2018, Relator filed a demand for jury trial on the allegations of contempt and on June 4, 2018, Judge Self signed an order setting the matter for a trial before the court on August 1, 2018. In response, Relator filed his Petition for Writ of Mandamus.
Mandamus is an extraordinary remedy granted only when a relator can show that (1) the trial court abused its discretion and (2) that no adequate appellate remedy exists. In re H.E.B. Grocery Co., L.P. , 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). When seeking mandamus relief, a relator bears the burden of proving these two requirements. Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). To establish an abuse of discretion, the relator must demonstrate the trial court acted unreasonably, arbitrarily, or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985). To establish no adequate remedy by appeal, the relator must show there is no adequate remedy at law to address the alleged harm and that the act requested is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). Furthermore, in order to establish a ministerial act, a relator must also show (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey , 586 S.W.2d 843, 846 (Tex. 1979).
Few areas of jurisprudence are more shrouded in mystique and confusion than the law surrounding procedural due process and the right to a jury trial in the context of the inherent right of a court to enforce by contempt compliance with a judicial directive, either express or implied, or to impose punishment for its disobedience. Maintaining courtroom decorum is an implied judicial directive familiar to all officers of the court that is enforceable by contempt. See § 21.001(b) (). While a court’s inherent right of enforcement by contempt has been codified in the Texas Government Code, few statutory provisions address the exact procedures applicable to the exercise of that inherent power. See §§ 21.001(a), 21.002(a).
For more than one hundred and fifty years, courts and scholars have used various clichés and labels to describe and differentiate various types of inherent contempt powers a court might possess and the sanctions it might impose to enforce that power. Texas courts have long recognized two basic types of inherent contempt: (1) direct contempt and (2) indirect or constructive contempt. Furthermore, in their discussions, courts and scholars have frequently differentiated various acts of inherent contempt by distinguishing between the appropriateness of the sanction imposed or sought to be imposed. In that regard, inherent contempt sanctions have characteristically been divided into two additional categories: (1) civil or coercive sanctions and (2) criminal or punitive sanctions. Finally, some discussions regarding inherent contempt and the procedures applicable to its enforcement have revolved around the distinction whether the sanction imposed was (1) petty or (2) serious.
Initially, one must distinguish between direct and constructive contempt. Direct contempt involves something that happens in the immediate presence of the court, during a courtroom proceeding, and it is, generally, subject to immediate punishment by the court. Section 21.001 provides that "[a] court shall require the proceedings be conducted with dignity and in an orderly and expeditious manner and control the proceedings so that justice is done." § 21.001(b). A litigant’s or a court participant’s flagrant violation of this implied directive often results in a direct contempt proceeding. In such a proceeding, the court has direct knowledge of the facts which constitute the contemptuous conduct. The essence of direct contempt in this situation is that the offending conduct obstructs or tends to obstruct the proper functioning of the court and the administration of justice. See Ex parte Daniels , 722 S.W.2d 707, 708 (Tex. Crim. App. 1987) (). In situations of direct contempt, the court must act without hesitation in order to suppress the disturbance and preserve appropriate decorum and order in the courtroom. Direct contempt is, therefore, subject to summary disposition without affording the accused the same rights and due process considerations as someone accused of a typical criminal offense. Ex parte Duncan , 182 S.W. 313, 314 (Tex. Crim. App. 1916), overruled on other grounds, Ex parte Winfree , 153 Tex. 12, 263 S.W.2d 154 (1953).
By way of contrast, constructive or indirect contempt involves actions that occur outside the presence of the court which require testimony or the production of evidence necessary to establish the occurrence of the allegedly contemptuous act. Ex parte Chambers , 898 S.W.2d 257, 259 (Tex. 1995), Contrary to acts of direct contempt, constructive contempt does not generally relate to acts which interfere with or interrupt courtroom proceedings but is most often characterized by a dispute between the parties to the litigation concerning the enforcement of a court order or directive affecting the subject matter of the pending litigation. Id. For example, the enforcement of an injunction in a civil case by the use of contempt would typically be referred to as constructive or indirect contempt.
The distinction between direct and constructive contempt is important because due process requires different procedures for the adjudication of contempt and the imposition of sanctions depending on the character of the contemptuous act and the nature of the sanctions sought or imposed. As explained above, a person guilty of direct contempt is not entitled to the same procedural safeguards as someone accused of constructive contempt. In cases of constructive contempt, where there are factual issues regarding the allegedly contemptuous act, due process requires that the accused be afforded greater procedural rights. For example, due process requires that the accused be advised of the nature and occurrence of the alleged contemptuous acts and have a reasonable opportunity to address those charges by way of defense or explanation, including the right to the assistance of counsel. Cooke v. United States , 267 U.S. 517, 537, 45 S.Ct. 390, 69 L.Ed. 767 (1925) ; Ex parte Flournoy , 158 Tex. 425, 312 S.W.2d 488, 492 (1958). Furthermore, "[d]ue process requires that the alleged contemnor be personally served with a show cause order or that it be established that he had knowledge of the content of such order." See Ex parte Blanchard , 736 S.W.2d 642, 643 (Tex. 1987). See also Hesse v. Howell , No. 07-16-00453-CV, 2018 WL 2750005, at *5, 2018 Tex. App. LEXIS 4127 at *13-14 (Tex. App.—Amarillo, June 7, 2018, no pet. h.).
Once a finding of contempt has been made, the court may decide to punish or respond to the contemptuous act by applying (1) civil or coercive sanctions, or (2) criminal or punitive sanctions, or (3) a combination of both. Although contempt proceedings are considered to be quasi-criminal in nature; Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 19...
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In re Landmark Am. Ins. Co.
...to its discussion in the seminal opinion of Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding), and our opinion in In re Hesse, 552 S.W.3d 893 (Tex. App.—Amarillo 2018, orig. proceeding). The substantive issue before us is rather straightforward. It implicates the delay in noti......