Ex Parte Bowers

886 S.W.2d 346, 1994 WL 456838

• Court: Court of Appeals of Texas
• Decided: November 17, 1994
• Docket: 01-93-00805-CV
• Status: Published

Opinions

OPINION

DUGGAN, Justice.

Before an opinion issued in this case, a majority of this Court called for an en banc review¹ concerning the analysis of the fifth amendment violation. See Tex.R.App.P. 79(d), 100(f).

This is an original habeas corpus proceeding. Relator, Gideon Mark Bowers, contends that his confinement for contempt is illegal because he did not receive notice of the permanent injunction he was charged with violating. He also alleges that the trial court (1) had no jurisdiction over him, and (2) by the manner and means in which it conducted the hearing on the motion for contempt, violated his rights under the fifth, sixth, and fourteenth amendments to the United States Constitution.

On June 25, 1998, the trial court signed a final judgment in Unauthorized Practice of Law Committee of the Supreme Court of Texas v. Gideon Mark Bowers, d/b/a/ Houston Self-Help Law Center, No. 92-059860 (Dist.Ct. of Harris County, 280th Dist. of Texas) (UPLC v. Bowers). Among other things, the judgment permanently enjoined relator from: (1) representing to any person or entity that he is “certified” by the State Bar of Texas, Legal Assistant Division; and (2) engaging in any practice constituting the practice of law as defined by the laws of the state of Texas at Tex. Gov’t Code Ann. § 81.101 (Vernon 1988).

On July 19, 1993, the Unauthorized Practice of Law Committee of the Supreme Court of Texas (UPLC) filed a motion for contempt and request for show cause hearing, alleging that relator had violated the permanent injunction as follows:

1. Representing to Grant Cook, a licensed attorney, that he was “certified” by the State Bar of Texas, Legal Assistant Division; and/or

2. Appearing in the 190th Judicial District Court of Harris County, Texas, on or about July 14, 1993 to represent a party known as “Seal Parts”, sometimes abbreviated as “SEPAR”, in a legal proceeding styled Harry L. Bowles et. al v. Charles N. Schwartz, Jr., et. al with cause number 91-025939; and/or

3. Executing an Agreed Order in the proceeding described in No. 2 above, on or about July 14, 1993, on behalf of “SEPAR”, a party to such case, and acting as an attorney and legal representative of “SE-PAR”....

On July 27, 1993, the trial court signed an order to show cause on the contempt motion, and set a hearing for August 27, 1993. Relator moved for continuance, the trial court reset the hearing to September 1, 1993, and the hearing was held on September 1.

In a judgment of contempt and order of commitment signed on September 1, 1993, the trial court found that relator had violated the permanent injunction as alleged in the motion for contempt, was in contempt of court, and assessed punishment at a $100 fine and 10-days imprisonment in the county jail. The order of commitment also provided that after the 10 days were served, relator would remain in jail an additional day if the fine remained unpaid. Relator was incarcerated on September 27,1993, until this Court released him on bond pending a determination on whether habeas corpus relief should be granted.

Preliminarily, we note that relator complains he never received notice of the motion for contempt, but only of the show cause hearing. We have read the statement of facts from the contempt hearing filed by relator in this proceeding. Relator was represented by counsel, and this issue was never raised before the trial court. It is waived. See Ex parte Occhipenti, 796 S.W.2d 805, 810 (Tex.App.—Houston [1st Dist.] 1990, orig. proceeding) (relator waived complaint of inadequate notice of specific contemptuous acts because he failed to make specific exceptions requesting further notice of charges); Ex parte Stephens, 734 S.W.2d 761, 762 (Tex.App.—Fort Worth 1987, orig. proceeding) (complaint that contempt motion lacked specificity waived because relator failed to properly object in the trial court).

Furthermore, the order to show cause did more than specify the date, time, and place of the hearing on the UPLC’s motion for contempt. It also stated that relator had violated the final judgment of June 25, 1993, and quoted, from the motion for contempt, the same three ways in which the violation had occurred. The same information appeared in the order to show cause as in the motion for contempt. See, e.g., Ex parte Vetterick, 744 (Tex.1988, orig. proceeding) (due process requires that alleged contemnor receive full and unambiguous notification of the accusation of any contempt; notice should be by show cause order or equivalent legal process personally served on alleged contemnor). In his special appearance and plea to the jurisdiction with motion for continuance, relator acknowledges that he received the order to show cause. Relator does not challenge the sufficiency of the description of the three violations alleged in the order.

We find relator’s complaint, that he never received notice of the motion for contempt, to be without merit.

Notice or knowledge of the order that one is charged with violating,² is a jurisdictional prerequisite to the validity of a contempt order. Ex parte Conway, 419 S.W.2d 827, 828 (Tex.1967, orig. proceeding). Relator states he never received notice of the permanent injunction contained in the final judgment of June 25, 1993.

Rule 683 of the Texas Rules of Civil Procedure reads as follows:

Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

(Emphasis added.)

Under rule 683, a party does not need to receive actual notice of an injunction in order to be bound by it. A party to a suit is charged by law with notice of all orders and judgments rendered in the suit. K & S Interests, Inc. v. Texas Am. Bank/Dallas, 749 S.W.2d 887, 892 (Tex.App.—Dallas 1988, writ denied) (op. on reh’g); Pentikis v. Texas Elec. Serv. Co., 470 S.W.2d 387, 390 (Tex.Civ.App.—Fort Worth 1971, writ ref'd n.r.e.); Banks v. Crawford, 330 S.W.2d 243, 246 (Tex.Civ.App.—Houston 1959, writ refd n.r.e.).

A party to a suit generally is one named in the pleadings, who is served, accepts or waives service, or appears, and who participates at trial and contests the cause of action. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex.1991) (judgment may not be rendered against any defendant unless upon service, acceptance or waiver of process, or appearance); Chandler v. Welborn, 294 S.W.2d 801, 808 (Tex.1956) (petitioners were parties as to certain respondents to the suit because the respondents named them as adverse parties by reference to another answer and the petitioners through counsel participated at trial and vigorously contested respondents’ cause of action; petitioners were not misled or prejudiced in any way); Daca, Inc. v. Commonwealth Land Title Ins. Co., 822 S.W.2d 360, 363 (Tex.App.—Houston [1st Dist.] 1992, writ denied) (trial court could not have rendered judgment against Daca because it was not named as a defendant and had not been served).

Relator does not argue here that he was not served with process and did not appear in UPLC v. Bowers or was not named in that suit. The record reflects that relator, as a pro se, filed several documents in the suit, including a notice of expedited agreed oral argument for co-counsel of choice, a motion to dismiss with prejudice for lack of jurisdiction, first amended counterclaims at law and motion to dismiss for lack of jurisdiction (filed May 17, 1993), and a special appearance and plea to the jurisdiction with motion for continuance (filed August 20, 1993).³

The final judgment in UPLC v. Bowers reflects that relator did not participate at trial:

BE IT REMEMBERED that on the 1st day of June, 1993, came on to be presented the trial on the merits of the above case, and the UNAUTHORIZED PRACTICE OF LAW COMMITTEE OF THE SUPREME COURT OF TEXAS, by and through its Sub-Committee, the UPLC for Harris County, Texas appeared and announced ready for trial, the Defendant [relator] failed to make an appearance after receiving notice from the Trial Coordinator that the ease was set for trial at 8:30 a.m. on June 1, 1993....

But relator does not complain that he did not receive proper notice of the trial or that he was prevented from participating at trial.⁴

We conclude that relator was a party to the suit, a fact he does not dispute, and as such, under rule 683, had notice of the judgment.

Jurisdiction

Relator argues that he has continually asserted the trial court has no jurisdiction over him. According to relator, he is a citizen of the Republic of Texas, not of the state of Texas, and as such, the court does not have jurisdiction. Relator states:

Regardless of whether this Court feels the jurisdictional argument presented by Relator is frivolous, the point is that, contrary to any judgmental recitations to the contrary, the trial court never made a determination that it had jurisdiction over Relator. When raised at the contempt hearing, the court summarily dismissed even the idea that it did not have jurisdiction over Relator.

Personal jurisdiction is composed of two elements: (1) the defendant must be amenable to the jurisdiction of the court; and (2) if the defendant is amenable to the jurisdiction of the court, the plaintiff must validly invoke that jurisdiction by valid service of process on the defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex.1985).

As we stated above, relator’s complaint that he had no notice of the contempt proceeding is without merit; relator makes no complaint about the validity of the service of process in UPLC v. Bowers. In summary, there is no issue concerning the second element of personal jurisdiction, valid service of process.

Concerning relator’s amenability to the jurisdiction of the court, he has never argued that he is not domiciled in Harris County, Texas, that he does not reside in Harris County, Texas, or that he does not conduct business in Harris County, Texas. The only argument he makes relative to his amenability to the jurisdiction of the court is that he is a citizen of the Republic, not the State of, Texas.⁵ The trial court neither erred nor abused its discretion in summarily dismissing such an argument.

Constitutional Violations

Relator contends that the trial court violated: (1) his fifth amendment rights by requiring him to take the stand and give testimony, even if for the sole purpose of identification; (2) his sixth and fourteenth amendment rights to a fair and impartial hearing by calling a court clerk to prove that relator had notice of the permanent injunction he was charged with violating; and (3) his sixth amendment right to effective assistance of counsel.

1. Fifth amendment (identification)

In its motion for contempt and request for show cause hearing, the UPLC requested that relator be held in contempt, but did not specify that he be punished by a fine, incarceration, or both. Nor did the order to show cause issued by the trial court specify the punishment that was sought. However, the statement of facts indicates that both parties understood that the UPLC was seeking a fine and jail time as punishment. Section 21.002(b) of the Texas Government Code (Vernon 1988) provides that a district court may punish for contempt and that the punishment may be a fine not to exceed $500, jail confinement not to exceed six months, or both.

At the contempt hearing, the UPLC called relator as its second witness. His attorney objected before relator took the stand:

Mr. Ryan: Your Honor, I am going to object to that. This motion for contempt, I believe, seeks to incarcerate Mr. Bowers, if I am not mistaken. At that point his 14th Amendment rights attached under Supreme Court ruling of Friot vs. Friot (sp?),⁶ and he has the right to remain silent.

The Court: Okay. He can take the stand and say that.

The privilege against self-incrimination applies to criminal contemnors. Ex parte Werblud, 536 S.W.2d 542, 547 (Tex.1976); Ex parte Stringer, 546 S.W.2d 837, 840 (Tex.Civ.App.—Houston [1st Dist.] 1976, orig. proceeding) (op. on reh’g). The attorney for an alleged criminal contemnor may correctly assert his client’s privilege against self-incrimination, and, if he does, the client should not be sworn and compelled to testify at all. Werblud, 536 S.W.2d at 548; Stringer, 546 S.W.2d at 839. We conclude that the trial court erred in compelling relator to be sworn and to testify over his attorney’s objection.

However, the holdings in Werblud and Stringer arose in cases where both Mr. Werblud and Mr. Stringer were compelled to answer questions concerning matters that served as the basis for their commitment. Werblud, 536 S.W.2d at 547; Stringer, 546 5.W.2d at 838. Although neither court discussed in its opinion the harm arising from the trial court’s error, the harm was obvious. In Ex parte Snow, 677 S.W.2d 147, 149 (Tex.App.—Houston [1st Dist.] 1984, orig. proceeding), this Court held that the relator’s contempt was proven before he took the stand, and any error in compelling him to testify was harmless.

The two dissenting opinions rely on our decision in Anderson v. State, 871 S.W.2d 900, 905-6 (Tex.App.—Houston [1st Dist.] 1994, no pet.). One holds Anderson to be a similiar situation.” The other holds that Anderson “cannot be distinguished” and that “[s]tare decisis requires that we be consistent.” We disagree.

In Anderson, the trial court compelled the defendant to be sworn and to testify to his name and identify his signature on a card in the State’s “pen packet” — during the punishment phase of a criminal trial while the State was proving the indictment’s enhancement allegations! Such erroneous action and the resulting evidence elicited was by no means “harmless” under rule 81(b)(2). The harm was clear. As in Werblud and Stringer, but unlike our case, the trial court compelled Anderson to answer questions that dealt with substantive allegations in the trial. We find that Anderson is consistent with our decision here.

Here, relator was asked only his name and address. The record shows that his identification was not an issue. Relator was not compelled to be a “witness against himself,” as stated in U.S. Const, amend. V. There was no harm.

We overrule relator’s fifth amendment complaint.

2. Sixth and fourteenth amendments (fair and impartial hearing)

After he had cross-examined counsel for the UPLC, relator’s counsel moved for dismissal of the contempt action, arguing that it was based on an order that was entered without a trial and that relator never received notice of the injunction. At this point, the trial court telephoned the clerk to see if relator was sent the usual postcard notice of entry of judgment. The court called the clerk to the stand, had her take the oath, and asked her if a postcard was sent to relator notifying him of the judgment. The clerk testified that a postcard was mailed to relator at two different addresses, both of which had been provided by relator. The court then invited the attorneys to ask questions; both declined. Neither party complained about the calling of the clerk as a witness.

Because relator lodged no objection to the above procedure with the trial court, it is waived. See Occhipenti, 796 S.W.2d at 810. Furthermore, in light of our analysis above on notice, the testimony of the clerk was not necessary to establish that there was notice to relator of the permanent injunction.

3. Sixth amendment (effective assistance of counsel)

Relator argues the trial court denied him his sixth amendment right to effective assistance of counsel in that the trial court threatened relator’s counsel with contempt of court and sanctions, and repeatedly, in manner and tone, sought to undermine counsel’s attempt to provide a vigorous defense. Relator does not cite to any pages in the statement of facts where such threats occurred, nor does relator support his contention with any legal authority that such action of the trial court, if true, rendered the contempt judgment void.⁷ Relator’s counsel was not in fact sanctioned by the trial court.

We have reviewed the statement of facts and noted only one place where relator’s counsel was threatened with sanctions. When counsel arrived late to the contempt hearing, the following exchange occurred:

The Court: Mr. Ryan, you are 40 minutes late to court this morning. I am not requiring an explanation from you, but you may give me one if you would like.

Mr. Ryan: I was caught in traffic on the Southwest Freeway. I had been on the Southwest Freeway from approximately 5 minutes after 7:00 o’clock this morning.

The Court: You should expect traffic in and around Houston, Texas, in rush hours getting to work. 5 minute after 7:00 o’clock is not a reasonable time to leave from Alief to expect to have expectation to getting to court at 8:00 o’clock.

I will withhold, the decision of whether you should be held in contempt of court for being late this morning until later. All right.

We find no merit to relator’s sixth amendment contention either in the record or in the law.

We deny relator habeas corpus relief and order him remanded to the custody of the sheriff of Harris County to complete the terms of the order of commitment dated September 1, 1993, signed by the judge of the 280th District Court of Harris County, Texas, in cause number 92-059860.

OLIVER-PARROTT, C.J., and COHEN, MIRABAL, WILSON, and HEDGES join the opinion of DUGGAN, J.

COHEN, J., concurs separately.

ANDELL, J., files a dissenting opinion in which HUTSON-DUNN and O’CONNOR, JJ., join.

O’CONNOR, J., also dissents separately.

1 . Chief Justice Oliver-Parrott requested en banc review and Justices Cohen, Mirabal, O’Connor, Wilson, and Hedges agreed.

2 . In this case, the final order is the judgment granting a permanent injunction in UPLC v. Bowers.

3 . Under Tex.R.Civ.P. 120a, a special appearance must be made before any other plea, pleading, or motion. Here, relator’s “special appearance” was made after he filed his counterclaims.

4 . A "post-answer default” judgment, like that here, is not necessarily error. See Garcia v. Arbor Green Owners Ass’n, Inc., 838 S.W.2d 800, 804 (Tex.App.—Houston [1st Dist.] 1992, writ denied) (post-answer default judgment affirmed); Wiseman v. Levinthal, 821 S.W.2d 439, 442 (Tex. App.—Houston [1st Dist.] 1991, no writ) (post-answer default judgment affirmed).

5 . The Republic of Texas ceased to exist on December 29, 1845, when it was admitted into the United States as the State of Texas.

6 . Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988).

7 . The validity of a contempt judgment can be attacked only collaterally by writ of habeas corpus. Ex parte Williams, 690 S.W.2d 243 n. 1 (Tex.1985, orig. proceeding); Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 827 (1960, orig. proceeding). For this Court to order habe-as corpus relief, the trial court’s order of contempt and commitment must be void, either because it was beyond the power of the court or because it deprived the relator of his liberty without- due process of law. See Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980, orig. proceeding); Ex parte Alford, 827 S.W.2d 72, 73-74 (Tex.App.—Houston [1st Dist.] 1992, orig. proceeding).