IN RE DAVID CHRISTOPHER HESSE, RELATOR

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) (providing that

punishment for contempt of a district court is by a fine of up to $500, or confinement in

the county jail for not more than six months, or by both fine and confinement). At that

point, Relator insisted upon his right to a section 21.002(d) hearing before an assigned

judge. See § 21.002(d) (requiring that an officer of the court held in contempt by a trial

court shall, upon request, be released on personal recognizance until a section 21.002(d)

contempt proceeding can be held by another judge assigned by the regional

administrative judge).

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



2 The record before this court does not include an executed copy of the order denying Relator’s motion for a jury trial. It does, however, include a copy of the trial court’s order setting the matter for a hearing before the court, thereby implicitly denying Relator’s motion.



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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 STANDARD OF REVIEW

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).

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RIGHT TO A JURY TRIAL IN A CONTEMPT PROCEEDING

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) (providing 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”). 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

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its enforcement have revolved around the distinction whether the sanction imposed was

(1) petty or (2) serious.

DIRECT CONTEMPT VS. CONSTRUCTIVE CONTEMPT

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) (involving a pro se litigant

who created a disturbance during trial by fighting with the court bailiff after she was asked

to leave the courtroom). 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, 263 S.W.2d 154 (Tex.

1953).

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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, 312 S.W.2d 488, 492 (Tex.

1958). Furthermore, “[d]ue process requires that the alleged contemnor be personally

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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 Tex. App. LEXIS 4127, at *13-14 (Tex.

App.—Amarillo, June 7, 2018, no pet. h.).

CIVIL OR COERCIVE CONTEMPT VS. CRIMINAL OR PUNITIVE CONTEMPT

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.

1967), it is the character of the sanction sought to be imposed that determines the

traditional labeling of the proceeding as being either “civil” or “criminal.” Hicks v. Feiock,

485 U.S. 624, 646, 108 S. Ct. 1423, 99 L. Ed. 2d 721 (1988).

Civil contempt, also know as coercive contempt, has the general purpose of

securing compliance with or performance of a court order or decree, and therefore, it

tends to benefit the party who originally sought that order or decree from the court.

Generally, a civil contempt sanction provides for the incarceration of the alleged

contemnor only until he complies with some affirmative act required by the court’s

contempt order. This type of penalty is considered to be civil in nature because it is

designed to compel the doing of some act. Because the contemnor can avoid

incarceration by obeying the court’s order, courts have typically said that the contemnor

“carries the keys of his own prison in his own pocket.” See Ex parte Werblud, 536 S.W.2d

542, 545 (Tex. 1976). In other words, a contempt proceeding is considered to be civil

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when the contemnor may be released of the penalty of contempt by compliance with the

provisions of the court’s order. Id.

Because civil contempt tends to place the power of the court behind the benefitting

party, to be enforceable, equity and due process require that the order be clear, specific,

and unambiguous. In re H.E.B., No. 07-17-00351-CV, 2018 Tex. App. LEXIS 885, at *13,

(Tex. App.—Amarillo, Jan. 31, 2018, pet. denied) (citing In re Coppock, 277 S.W.3d 417,

418 (Tex. 2009)). Civil or coercive contempt almost always involves conduct that does

not take place in the immediate presence of the court and, therefore, it is similar to

constructive contempt. As such, it requires greater adherence to the traditional notions

of due process such as (1) notice of the alleged violations, (2) notice of hearing, and (3)

an ample opportunity to prepare for and respond to the allegations.

Unlike civil contempt, the nature and purpose of criminal or punitive contempt is to

punish the alleged contemnor for past behavior. The order of confinement or the

imposition of a monetary penalty is not conditioned upon some future performance, but

rather, it is being meted out by the court for the primary purpose of punishing some

completed act. The punishment is fixed and definite and nothing the alleged contemnor

can do will enable him to avoid punishment. A person cannot be sentenced to a period

of confinement for the disobedience of an order unless the order unequivocally

commands the alleged contemnor to perform that specific duty or obligation. In re

Coppock, 277 S.W.3d at 418. “It is not the fact of punishment but rather its character and

purpose that often serve to distinguish between [civil and criminal contempt].” Gompers

v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S. Ct. 492, 55 L. Ed. 797 (1911).

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Because criminal contempt proceedings include the possibility of deprivation of

someone’s liberty, the alleged contemnor is entitled to greater procedural due process.

Criminal or punitive contempt is most often, but not always, associated with direct

contempt; while civil or coercive contempt is most often, again but not always, associated

with constructive contempt. Therefore, it is not the nature of the underlying proceeding

from which the allegations of contempt arise that determines its classification as either

criminal or civil, it is the nature of the sanction imposed. One can have a criminal

contempt proceeding arise out of a civil case (e.g., imposition of a punitive fine for failure

to comply with a court order), and one can have a civil contempt proceeding arise out of

a criminal case, (e.g., an order of incarceration for refusal to testify where the alleged

contemnor can obtain his release simply by obeying the trial court’s directive to testify).

PETTY PENALTIES OR SANCTIONS VS. SERIOUS PENALTIES OR SANCTIONS

Finally, contempt proceedings are sometimes categorized as either being “petty”

or “serious,” depending on the amount of the fine imposed or period of incarceration

ordered. This distinction was discussed by the United States Supreme Court in Muniz v.

Hoffman, 422 U.S. 454, 476-77, 95 S. Ct. 2178, 45 L. Ed. 2d 319 (1975). Although Muniz

was a federal proceeding involving a contempt citation for the violation of an injunction

issued at the request of the National Labor Relations Board, the due process principles

apply equally to contempt proceeding before state courts. Bloom v. Illinois, 391 U.S. 194,

199-200, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968) (holding that the “Constitution

guarantees the right to jury trial in state court prosecutions for contempt just as it does for

other crimes”). In Muniz, for the purpose of determining the boundary of the Sixth

Amendment’s guarantee to a jury trial in a contempt proceeding, the Supreme Court

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distinguished between “petty” and “serious” offenses and found that, based upon the

historical interpretation of the Sixth Amendment, “petty offenses” were offenses in which

the punishment did not exceed confinement for a period of six months, or a fine of $500,

or by both confinement and a fine. Muniz, 422 U.S. 476-77. Based upon this distinction,

the Court concluded that because “petty” criminal offenses were tried without the benefit

of a jury, then a contempt proceeding could be tried without a jury if the punishment

imposed was “petty.” Id. The Supreme Court further concluded that criminal contempt

proceedings, in and of themselves were not “serious” offenses ipso facto, absent a

legislative declaration to the contrary. Id. at 476. Although the distinction between a

“petty” offense and a “serious” offense is somewhat arbitrary, the Texas Supreme Court

has held that Texas is in accord with this distinction. See Ex parte Griffin, 682 S.W.2d

261, 262 (Tex. 1984) (holding that “[t]he Sixth Amendment to the United States

Constitution guarantees the right to jury trials for serious offenses, but not petty

offenses”); Ex parte Werblud, 536 S.W.2d at 547. Based upon this distinction, the Texas

Supreme Court has also opined that the Texas Legislature must have intended that petty

contempt proceedings be tried without a jury because they have kept the statutory

penalties for contempt within the range of a petty offense. See id. See also § 21.002(b).

ANALYSIS

Here, Relator was found to be in direct contempt of court for using language in the

courtroom, during a criminal proceeding, which the trial court found inappropriate. No

sanctions were imposed at that time because Relator insisted upon his right to a hearing

before an assigned judge, pursuant to section 21.002(d). At that point, the contempt

proceeding became a constructive contempt proceeding because a newly-assigned

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judge would be required to conduct a hearing and determine whether the acts alleged

amounted to contempt of court and, if so, what punishment to assess. Because the notice

of allegations of contempt clearly limited the potential range of punishment to a fine of not

more than $500, or a period of incarceration in the county jail for not more than six months,

or by both fine and commitment, with no conditional provisions for release, the contempt

proceeding could be described as both criminal and petty.

Relying upon the principle that the Texas Constitution can guarantee rights which

are greater than the rights guaranteed by the United States Constitution, Relator

maintains that article I, section 15 of the Texas Constitution guarantees him the right to a

jury trial in his contempt proceeding. TEX. CONST. art. I, § 15 (providing, in relevant part,

that “[t]he right of trial by jury shall remain inviolate”). Specifically, while acknowledging

that a criminal contempt proceeding might be classified as a “petty” offense where a jury

trial would not be guaranteed by the United States Constitution, Relator contends the

Texas Constitution guarantees him greater rights because every person accused of a

criminal offense in Texas (even those with potential penalties less than the threshold for

a “serious” offense) is entitled to a jury trial. Relator has not cited this court to any

authority holding that an officer of the court is entitled to a jury trial, ipso facto, in a section

21.002(d) contempt proceeding where the potential range of punishment was not

classified as “serious.” Furthermore, we have not located any such authority. See

generally Ex parte Reposa, 541 S.W.3d 186 (Tex. Crim. App. 2017) (denying, without

addressing the denial of Relator’s request for a jury trial, his Motion for Emergency

Personal Bond, Bail, or Personal Recognizance Bond Pending Appeal, following a section

21.002(d) contempt proceeding where he was ordered incarcerated).

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While Relator’s arguments may be well-reasoned and logical, they do not comport

with the current state of our jurisprudence regarding the right to a jury trial in a constructive

contempt proceeding, criminal or otherwise, classified as a petty offense. As an

intermediate appellate court, we are bound to recognize and acquiesce in the decisions

of the higher courts of this State, and absent a contrary decision from a higher court or

an intervening and material legislative change in the statutory law applicable to contempt

proceedings, we are bound by that precedent. Brumley v. State, 804 S.W.2d 659, 661

(Tex. App.—Amarillo 1991, no pet.).

A section 21.002(d) contempt hearing is not a “trial,” as that term is used and

contemplated by the Texas Constitution concerning a criminal case involving the violation

of a penal statute. Being initially found guilty of direct contempt, Relator was not entitled

to a jury “trial” when Judge Estevez found him to be in contempt, and section 21.002(d)

granting him a statutory right to a de novo hearing before a different judge does not

expressly or impliedly grant him that right either. See § 21.002(d). To the contrary,

section 21.002(d) provides that the Administrative Judge shall “assign a judge . . . to

determine the guilt or innocence of the officer of the court.” Id. (Emphasis added).

Because section 21.002(d) does not expressly provide for the right to a jury trial in a

contempt proceeding involving an officer of the court, and because Relator has not

otherwise shown himself entitled to a jury trial, he cannot meet the first requirement for

the issuance of a writ of mandamus—a showing that the trial court abused its discretion

in denying him a jury trial.

Relator’s petition for a writ of mandamus is denied.