Ex Parte Krupps

712 S.W.2d 144

• Court: Court of Criminal Appeals of Texas
• Decided: June 11, 1986
• Docket: 69491
• Status: Published

Opinions

OPINION

W.C. DAVIS, Judge.

This is an original application for writ of habeas corpus in which seven applicants seek relief from a judgment holding them in contempt of County Court at Law No. 3 of Jefferson County. Applicants (Charles Edward Krupps, Harold 0. Eddington, Howard D. Matthews, Sr., Vincent Rose, Lattie Jo Darby Rose, Rosie Henley, and John Ellis Henley) were summarily held in contempt of Respondent Donald J. Floyd on June 14, 1985 for “being disrespectful by failing to rise upon the entrance of the Court after being duly admonished and warned of consequences of their failure to do so.” Applicants’ punishment was fixed at thirty days confinement in the county jail.

Applicants urge three grounds for relief. First, applicants claim that the order of contempt is void because the trial court failed to provide them with due process. Second, applicants claim that there is no evidence which would support a contempt conviction. Third, applicants claim that the First Amendment’s Free Exercise Clause creates an exemption to the “rising” requirement.

The record is presented to this Court largely in the form of affidavits. Although the use of affidavits presents this Court with the unusual circumstance of an informal record, such informality is not without precedent in a direct contempt. See Ex parte Herring, 438 S.W.2d 801, 803 (Tex.1969); Ex parte Hosken, 480 S.W.2d 18, 22, n. 4 (Tex.Civ.App. — Beaumont 1972). As the Supreme Court has noted:

“A contempt holding depends in a very special way on the setting, and such elusive factors as the tone of voice, the facial expressions, and the physical gestures of the contemnor; these cannot be dealt with except on full ventilation of the facts. Those present often have a totally different impression of the events from what would appear even in a faithful transcript of the record.” In re Little, 404 U.S. 553, 556, 92 S.Ct. 659, 661, 30 L.Ed.2d 708 (1972) (Burger, C.J., concurring).

This is especially true where, as here, this Court must review the trial court’s decision based on affidavits. Therefore, we review the affidavits with caution and restraint.

On June 13, 1985, Applicant Krupps appeared as a pro se defendant in County Court at Law No. 3 in Jefferson County before Respondent Judge Donald J. Floyd. The purpose of the appearance was to proceed upon a trial de novo from a conviction in Justice of the Peace Court for operating a motor vehicle without liability insurance. The other applicants had accompanied Krupps and were present as spectators. Upon completion of voir dire, court was recessed and the bailiff, Deputy Ben Collins, advised everyone to rise. As Judge Floyd exited the courtroom, the bailiff noticed that the applicants did not stand. The bailiff advised the applicants that in the future they were to . stand whenever a judge entered or exited a courtroom. The applicants responded that they would continue to remain seated. The bailiff notified Judge Floyd of the applicants’ intentions. The trial remained recessed until the following morning.

On June 14, 1985, before court convened, Judge Floyd instructed applicants, through the bailiff, that they would be held in contempt if they continued to refuse to rise. Several spectators left the courtroom at this point, deciding to stay outside until after court had convened. However, applicants again informed the bailiff that they would not rise. The bailiff informed Judge Floyd that the applicants had indicated they would continue to refuse to rise upon entrance of the judge. Judge Floyd then had the bailiff bring Krupps to his chambers. In the presence of Deputy Collins, Deputy Pat Pilgrim and Judge Floyd, Krupps made it clear that he would continue to refuse to stand. He explained to the judge that, as a “follower of Christ,” he could not rise upon the entrance or exit of a judge. Judge Floyd offered applicants, through Krupps, the alternative of remaining outside of the courtroom until court had convened.¹ Krupps again refused. Judge Floyd continued to advise Krupps that such a refusal was contemptuous. Krupps then returned to the courtroom.

When court convened, the bailiff advised everyone to rise. The applicants did not stand, and Judge Floyd held them in contempt of court.

Applicants initially argue that they were not accorded due process in their contempt adjudication. The due process required for a particular contempt adjudication depends upon the type of contempt which has occurred. Contempts in Texas are divided into two types: direct and constructive. 13 Tex.Jur.3d, Contempt, § 2, p. 183.

In Ex parte Supercinski, 561 S.W.2d 482 (Tex.Cr.App.1977), this Court describes acts constituting direct contempt as those in which the court knows all of the secondary facts. Direct contempt is further defined in Black’s Law Dictionary as “[t]hose [acts] committed in the immediate view and presence of the court or so near the presence of the court as to obstruct or interrupt the due and orderly course of the proceedings.” Black’s Law Dictionary (Fifth Ed. 1983), 168.

Direct contempt adjudications satisfy the demands of due process through summary conviction and punishment without the need for prior notice or a hearing. Ex parte Harvill, 415 S.W.2d 174 (Tex.1967); Ex parte Norton, 144 Tex. 445, 191 S.W.2d 713 (1946). “Direct contemnors are not entitled to notice of the contempt charge or a hearing because there is no factual dispute arising from contemptuous behavior that occurs in the court’s presence.” Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979).

The United States Supreme Court has recognized the power of Texas courts to use summary procedures in cases involving direct contempt. Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569 (1949). In Fisher, supra 69 S.Ct. at 427, the Court reasoned:

“Historically and rationally the inherent power of courts to punish contempts in the face of the court without further proof of facts and without aid of jury is not open to question. This attribute of courts is essential to preserve their authority and to prevent the administration of justice from falling into disrepute. Such summary conviction and punishment accords due process of law.”

The Court, in a footnote, added that “[t]his rule is well established in Texas.” Id., 69 S.Ct. at 427 n. 4.

Constructive contempt has been defined as relating to “acts which require testimony to establish their existence.” Ex parte Cooper, 657 S.W.2d 435, 437 (Tex.Cr.App.1983). Constructive contempt is further defined in Black’s Law Dictionary as “[t]hose [acts] which arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, ...” Black’s Law Dictionary (Fifth Ed.1983), 167.

In Cooper, supra, the Court found the failure of an attorney to appear in court to be an example of constructive contempt. Such an occurrence constitutes an act which happened outside the presence of the court and upon which testimony will be required in order to discover the relevant facts.

Constructive contempt adjudications satisfy the demands of due process by requiring that the contemnor be given notice, a hearing and the opportunity to obtain an attorney. Ex parte Hodge, 389 S.W.2d 463 (Tex.1965); Ex parte Flournoy, 159 Tex. 425, 312 S.W.2d 488 (1958). These due process requirements are necessary because all of the elements of the offense are not personally observed by the court. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Ex parte Pyle, 134 Tex. 148, 133 S.W.2d 565 (1939).

With this understanding of the due process differences in direct and constructive contempt adjudications, we now must determine whether the facts of the instant case warrant a direct or constructive contempt proceeding, or both.

In the instant case Bailiff Collins instructed the six applicants to rise. They refused to do so. Judge Floyd, through Bailiff Collins, instructed the six that, should they refuse to rise, they would be held in contempt. The affidavit of Bailiff Collins makes clear that the six applicants understood that the threat of contempt originated with Judge Floyd. Applicants again refused to rise. Bailiff Collins informed Judge Floyd that the applicants would refuse to rise upon his entrance into the courtroom. When Judge Floyd entered he saw that the applicants had not risen and held them in contempt.

Bailiff Collins, as an officer of the court,² admonished the applicants at the behest of Judge Floyd.³ He made clear to the applicants that the admonition originated with Judge Floyd. The judge was advised that the applicants intended to refuse to rise when he entered. The applicants did in fact remain seated when Judge Floyd entered the courtroom and were consequently held in contempt and sentenced to thirty days in jail. Therefore, the admonishment was made in the presence of a court officer acting under direct instruction from the judge. The act which constituted the contempt, the applicants’ failure to rise after being admonished, occurred in the presence of the judge. Thus, the entire act of contempt occurred in the presence of the court⁴ making this direct contempt. Under these circumstances, the use of summary direct contempt proceedings were proper and did not violate applicants’ due process rights.

Krupps, relying upon Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974) and Ex parte Avila, 659 S.W.2d 448, (Tex.Cr.App.1983), argues that this Court has extended the requirements of notice and hearing to direct contempt proceedings. Neither Taylor nor Avila supports such a conclusion.

In Taylor, supra, the Supreme Court reversed a direct contempt conviction of an attorney because the trial judge denied the attorney notice and a hearing, waiting until the conclusion of the trial for sentencing. The Court held:

“This procedure does not square with the Due Process Clause of the Fourteenth Amendment. We are not concerned here with the trial judge’s power, for the purpose of maintaining order in

the courtroom, to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him. [Citation omitted] The usual justification of necessity [citation omitted] is not nearly so cogent when final adjudication and sentence are postponed until after trial, [footnote omitted] Our decisions establish that summary punishment need not always be imposed during trial if it is to be permitted at all. In proper circumstances, particularly where the offender is a lawyer representing a client on trial, it may be postponed until the conclusion of the proceedings. [citation omitted]” Taylor, supra, 94 S.Ct. at 2703-2704.

In the instant case, the trial judge adjudicated the contempt and sentenced applicants in one act. He did not postpone his sentencing until after Krupps’ trial. In addition, the instant case did not involve the sensitive issue of an attorney being placed in the position of defending himself against a contempt charge while also attempting to defend his client in trial. The Court in Taylor, supra, did not expand the due process requirements in a direct contempt adjudication beyond the summary proceeding present in the instant case where the trial judge adjudicates the contempt and sentences a contemnor immediately.

In Avila, supra, the trial court held an attorney in constructive contempt without providing notice or hearing. We held that such summary proceedings violated the specific statutory requirements of Art. 1911a, § 2(c), V.A.C.S.⁵ and the general due process required in constructive contempt adjudications. Id.

The instant case is markedly different from Avila, supra, because, in the instant case, applicants were held in direct contempt. In addition, the contempt conviction in the instant case was not directed at an officer of the court; therefore, the broader due process requirements of Article 1911a, § 2(c), supra, are inapplicable. Both Taylor, supra, and Avila, supra, therefore, are distinguishable.

We find that, in applicants’ adjudication, the trial court acted consistent with the due process required in a direct contempt proceeding.

Applicants also argue that a conviction for contemptuous conduct in Texas can only be upheld if the conduct “obstructs, or tends to obstruct, the proper administration of justice.” Ex parte Jacobs, 664 S.W.2d 360 (Tex.Cr.App.1984); Ex parte Salfen, 618 S.W.2d 766 (1981). He then argues that the evidence in the instant case is insufficient to support a finding of contempt; therefore, the judgment of contempt is void. See Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 830 (1960).

We noted earlier that contempts are classified as either direct or constructive when deciding the due process required in their adjudication. A similar decision is required when deciding what grounds for contempt are available to a court in a contempt adjudication.

Contempts are either criminal or civil in nature. 13 TexJur., Contempt, § 3, p. 186; 17 C.J.S., Contempt, § 5(2), p. 12. Criminal contempt results from doing that which the court has prohibited; civil contempt generally results from failing to follow an order of the court. Texas Pet Foods, Inc. v. State, 529 S.W.2d 820 (Tex.Civ.App. — Waco 1975), writ ref’d n.r.e. In addition, a proceeding which has as its purpose to punish a contemnor through fine or imprisonment is classified as criminal; the contempt is considered civil if the purpose of the sentence is coercive or remedial. Id.

In the instant case, Judge Floyd clearly held applicants in contempt for conduct which was prohibited. The sentence of thirty days in jail had as its purpose to punish applicants for refusing to stand. The contempt proceeding, therefore, was criminal in nature.

Common law criminal contempt is not restricted only to conduct that obstructs, or tends to obstruct, the proper administration of justice.⁶ “[Cjriminal contempts are all those acts in disrespect of the court, or of its process, or which obstruct the administration of justice, or tend to bring the court into disrespect, etc.” Ex parte Robertson, 27 Tex.App. 628, 11 S.W. 669 (1889). “Generally speaking, he whose conduct tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during a litigation, or otherwise tends to impede, embarrass, or obstruct the court in discharge of its duties is guilty of contempt.” Ex parte Norton, 144 Tex. 445, 191 S.W.2d 713, 714 (Tex.1946), quoting 12 Amer.Jur., Contempt, § 2, p. 389. See also 13 Tex.Jur.3d, Contempt, § 3, p. 187.

While these notions are stated broadly, they can be broken into two specific acts: 1) an act which is disrespectful of the court and 2) an act which obstructs, or tends to obstruct, the proper administration of justice. In Salfen, supra, and Jacobs, supra, we noted the importance of the second type of act as a ground for contempt. However, this Court has never excludéd disrespectful conduct from the common law, as a ground for contempt. With this in mind, we will now determine whether refusing to rise when a judge enters a courtroom is conduct which can be found contemptuous under common law.

We can find no Texas case which deals with the question of whether refusal to rise when a judge enters the courtroom is contemptuous conduct. In the Federal judiciary, one federal circuit court has held that refusal to rise following a trial court’s insistence that a contemnor comply with the “rising requirement is sufficiently related to maintaining order in the actual presence of the court that an infraction can be dealt with summarily....’” In re Chase 468 F.2d 128, 132 (7th Cir.1972), quoting United States ex rel Robson v. Malone, 412 F.2d 848, 850 (7th Cir.1969). Cf. United States v. Snider, 502 F.2d 645 (4th Cir.1974); Com. v. Cameron, 501 Pa. 572, 462 A.2d 649 (1983). Although distinguishable, see also United States v. Abascal, 509 F.2d 752 (9th Cir.1975); Comstock v. United States, 419 F.2d 1128 (9th Cir.1969).

In Chase, supra, the defendant, along with ten co-defendants, was tried on numerous federal charges. At the start of the trial, the defendant refused to stand when the trial judge entered the courtroom. He continued to refuse to stand throughout the trial, despite repeated admonishments and warnings by the court. The trial court found defendant in contempt of court on 99 separate occasions. In upholding the contempt convictions, the circuit court stated:

“As we pointed out, ‘the traditional rising in unison of persons present in a court can reasonably be thought to contribute to the functioning of the court. It is a way of marking the beginning and end of the session, and probably serves to remind all that attention must be concentrated upon the business before the court, the judge’s control of the court room must be maintained with as little burden on him as possible, and there must be silence, except as the orderly conduct of business calls for speech.’ ” Chase, supra, at 132, quoting Malone, supra, at 848.

It is important to note that Chase, supra, involved the more restrictive statutory contempt power of federal courts.⁷ “Congress has limited the summary contempt power vested in [federal] courts to the least possible power adequate to prevent actual obstruction of justice.” In re McConnell, 370 U.S. 230, 235, 236, 82 S.Ct. 1288, 1292, 8 L.Ed.2d 434 (1962). Contempt powers of Texas courts are not similarly restricted. Therefore, contemptuous conduct under federal law has only limited applicability in Texas.⁸ Common law allows a conviction for contempt under the broader notion of disrespect as well as obstruction, or tendency to obstruct, the proper administration of justice.⁹ Unlike federal law, our law has not required that an actual obstruction of justice be present.

With these differences in contempt law in mind, we find the circuit court’s opinion in Chase, supra, persuasive. A direct refusal to rise upon the judge’s entrance interrupts the normal proceedings of the court, disregards the formality and seriousness of a court’s function, and directly conflicts with the “imperative need of the community in having an established forum in which controversies between man and man and citizen and sovereign may be decided in a calm, detached, neutral atmosphere.” Snider, supra at 665 (Widener, J., dissenting). See also, Cameron, supra 462 A.2d at 652-653 (McDermott, J., dissenting). Therefore, we find that a refusal to rise after being admonished of the rising requirement constitutes an act of disrespect toward the court and an act which obstructs the proper administration of justice.

In the instant case, Judge Floyd found that applicants’ refusal to rise was an act of disrespect toward the court. Judge Floyd confronted Krupps in chambers and admonished him that he was required to rise upon entrance of the judge into the court. Applicants ignored Judge Floyd’s warning and intentionally refused to rise upon entrance of the judge into the court. These facts prove beyond a reasonable doubt Judge Floyd’s conclusion that applicants were in contempt of court.

Applicants finally argue that the rising requirement unconstitutionally burdens their religious beliefs. They rely upon West Virginia v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), for the argument that this Court should recognize a religious exception to the rising requirement. In Barnette, supra, the Supreme Court held that, in limited circumstances, a sincere religious belief can create an exception to the practice of saluting the flag.¹⁰

However, it is unnecessary for this Court to decide whether the First Amendment requires such an exception. Even if the rising requirement created a burden on applicants’ religious freedom, Judge Floyd removed the burden by giving them the option of remaining outside until after court convened. Applicants mooted whatever First Amendment claim that he might have had when they rejected that alternative. Any burden on their religious freedom at that point was self-imposed. Judge Floyd did not demand that they remain in the court and comply with the rising requirement. Instead, showing admirable restraint, Judge Floyd gave them a choice, and they decided to remain. Once applicants chose to remain and refused to rise, it became difficult to understand what religious tenet was being expressed.

Accordingly, the relief requested is denied.

McCORMICK and WHITE, JJ., concur in the result.

1 . Judge Floyd stated in his affidavit:

I explained that I did not want to hold them in contempt and place them in jail so why couldn’t they step outside until Court convenes and then return once the proceedings started. He stated they would not do- that.

2 . Article 36.24, V.A.C.C.P. reads in relevant part: The sheriff of the county shall furnish the court with a bailiff during the trial of any case to attend the wants of the jury and to act under the direction of the court.

3 . Black’s Law Dictionary defines bailiff as:

A court officer or attendant who has charge of the court session in the matter of keeping order, custody of the jury and custody of prisoners while in court.

See also United States v. McCabe, 129 Fed. 708 (1st Cir.1904); People v. Robarge, 41 Cal.2d 628, 262 P.2d 14 (concurring opinion).

4 . In Ex parte Aldridge, 169 Tex.Cr.R. 395, 334 S.W.2d 161, 165 (App.1959), this Court said:

[t]he wording ‘in the presence of the court’ does not necessarily mean 'in the presence of the judge of the court. The court is present whenever any of its constituent parts are engaged in the prosecution of the business of the court ...

5 . In Avila, supra 659 S.W.2d at 445, we observed "that a common sense reading of Art. 1911a, Sec. 2(c), supra, requires, in essence, a trial de novo once its provisions have been invoked by a contemnor. That is, once the offended judge has made a determination that an officer of the court is in contempt of court, and the con-temnor invokes his mandatory right to a hearing before another judge, the statute requires that the guilt or innocence shall be determined by a judge other than the offended judge.”

6 . The only Texas statute relevant to direct criminal contempt provides:

"A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including the authority to issue such writs and orders as may be necessary or proper in aid of its jurisdiction. It has the duty to require that proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control proceedings that justice is done. A court has the power to punish for contempt." V.A.C.S., art. 1911a, § 1(a).

7 . The federal contempt statute relevant in Chase, supra at 132 n. 4, provides:

"A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice.” 18 U.S.C. § 401(1).

8 . This difference in federal and state law provides a critical distinction between our holding in the instant case and the holding in Snider, supra. The court in Snider, supra, reached the opposite conclusion of the court in Chase, supra, but both were interpreting the same federal statute. Therefore, as the Justice Widener noted, "[s]ince [this court’s ruling] is not based on federal constitutional grounds, it need have no effect upon the various States in the Circuit.” Snider, supra at 665. The same reasoning applies for distinguishing Cameron, supra, because the Pennsylvania contempt statute mirrors the federal contempt statute.

9 .Lacking any specific statute we will follow the common law of England provided it is not inconsistent with the Constitution or laws of this State. V.A.C.S., Art. 1.

10 . We note that the court in Chase, supra, commented that "[t]he functional justification for the judge’s entitlement to require rising, unlike, perhaps, the flag salute, is not something completely devoid of functional significance and solely designed to signify a certain set of beliefs.”