Article of Interest

“Consider yourself in contempt!”^1. – Initial Considerations When Defending A Contempt Proceeding
By: Scott Rogers and Jeremy Camp

While many of us are familiar with the concept of contempt (perhaps through television and movie courtrooms), contempt proceedings are rarer than Hollywood would have us believe.  Nevertheless, in order to protect our clients from threats of contempt, it is critical to be familiar with the basic procedural requirements associated with a contempt proceeding.

Courts’ Contempt Power

Courts have inherent and statutory power to address behavior that obstructs the administration of justice.  By statute, courts are vested with the powers necessary to exercise their jurisdiction, enforce their lawful orders, and ensure that proceedings are conducted with dignity and in an expeditious manner, so that justice is done.²  The ability of courts to enforce their orders and judgments and to preserve the dignity of the judicial process through their contempt power is also rooted in Texas common law.³

However, the courts’ power is not unlimited.  While courts have broad power to punish by contempt, that power is meant to be exercised rarely.⁴  Moreover, the courts’ ability to punish contempt is not unfettered, extending only to acts that impede, embarrass, or obstruct the courts in the discharge of their duties.⁵

Classifying The Alleged Contemptuous Behavior

When faced with the threat of contempt, one must first determine the nature of the alleged offending behavior to identify the applicable procedural safeguards.  There are two types of contempt: civil and criminal.  Civil contempt compels the offender’s compliance, whereas criminal contempt is punitive in nature.⁶  Each type of contempt can be either direct or constructive.⁷  Direct contempt occurs in the presence of the court and involves disobedience or disrespect of the court’s authority.⁸  Constructive contempt occurs outside the presence of the court; testimony or other evidence is required to establish its existence.⁹  The court’s notice and hearing requirements, as well as the contemnor’s rights, depend on the type of contempt alleged.

Civil v. Criminal

The distinction between civil and criminal contempt carries important procedural consequences.¹⁰  There is no constitutional right to jury trial in a civil contempt proceeding.¹¹  The standard of proof also differs between civil and criminal contempt.  Civil contempt may be proven by a lesser standard, likely a preponderance of the evidence.¹²  Criminal contempt triggers constitutional safeguards (including jury trial protection in the case of serious criminal contempt) and a heightened burden of proof (beyond a reasonable doubt).¹³

Direct v. Constructive

Direct contempt stems from the court’s power to punish violations in its presence,¹⁴ whereas constructive contempt involves disobedience outside of the court’s presence.¹⁵  Failure to comply with a court’s order, for example, constitutes constructive contempt.¹⁶  The distinction between direct and constructive contempt is significant because cases of constructive contempt are afforded greater procedural protection, including notice and a right to defend.¹⁷

Correctly categorizing the court’s threat of contempt (often through an order to show cause) dictates the procedural requirements of a contempt proceeding.  The safeguards afforded to the contemnor can help shape the defense of the contemnor.  By incorporating these protections into the defense, the contemnor will be best positioned to avoid hearing “Consider yourself in contempt!”

Scott Rogers is an associate and Jeremy Camp is a partner at the business litigation boutique Gardner Haas.  They can be reached at sr@gardnerhaas.com and jc@gardnerhaas.com.

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^1.  A FEW GOOD MEN (Columbia Pictures Corporation, Castle Rock Entertainment 1992).
^2. See TEX. GOV’T CODE §§ 21.001(a)-(b).
^3. See 9-133 Dorsaneo, Texas Litigation Guide § 133.01 (2017).
^4. See Ex parte Jacobs, 664 S.W.2d 360, 363-64 (Tex. Crim. App. 1984).
^5. See In re Reece, 341 S.W.3d 360, 368-69 (Tex. 2011).
^6. See Cadle Co. v. Lobingier, 34 S.W.3d 598, 601 (Tex. App.—Fort Worth 2000, pet. denied).
^7. See In re Johnson, 996 S.W.2d 430, 433 (Tex. App.—Beaumont 1999, orig. proceeding).
^8. See id.
^9. See id.
^10. See Smith v. Sullivan, 611 F.2d 1050, 1053 (5th Cir. 1980).
^11. See Shillitani v. United States, 384 U.S. 364, 365 (1966).
^12. See, e.g., TEX. FAM. CODE § 105.005; but see Alberti v. Klevenhagen, 610 F. Supp. 138, 141 (S.D. Tex. 1985) (citing a clear and convincing evidentiary standard for civil contempt).
^13. See Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983).
^14. See Ex parte Busby, 921 S.W.2d 389, 393 (Tex. App.—Austin 1996, pet. ref’d).
^15. See Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995).
^16. See, e.g., In re Hous., 92 S.W.3d 870, 876 (Tex. App.—Houston [14th] 2002, orig. proceeding).
^17. See Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); In re Acceptance Ins. Co., 33 S.W.3d 443, 449 (Tex. App.—Fort Worth 2000, orig. proceeding).