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Contemplating Contempt


You are in contempt! Television courtroom dramas and national politics bring this to our attention very often.  But how often does a court hold a party in contempt?  Not very often.  The process to hold a party in contempt is procedurally, shall we say, robust.  It is used by the courts to restore order in the courtroom, coerce a party or witness to comply with an order of the court, or to punish.  Contempt is usually found in criminal proceeding or in family law but occasionally in civil proceedings.  Susan MacDougal of Whitewater fame served 18 months in jail for civil contempt for refusing to testify.

There are two types of contempt, civil and criminal.  But despite the name, the dichotomy of contempt has nothing to do with the underlying case, hence MacDougal in a criminal proceeding could and was held in civil contempt.  The classification depends on the purpose of the contempt.  It is not the fact of punishment, but rather its character and purpose that often serves to distinguish civil from criminal contempt.  Civil contempt seeks to correct or coerce a violation.  Criminal contempt, on the other hand, seeks to punish the violator.

In civil contempt, a judge may assess a fine, or imprison, or both against a violator to force compliance.  The term can be for a certain period or open ended, but it must be conditioned on compliance with the court’s order.  In other words, as the old saying goes, the contemnor carries the keys to their jail cell in their own pockets.

In criminal contempt, contempt is punitive and seeks to only punish for the violation.  If a lawyer swears in court, he or she can be held in contempt and his or her contempt is unconditional; the punishment stands regardless of an apology (this author has not sworn in court, aloud).  With criminal contempt, more due process and a higher standard on appeal applies.  The maximum fine is $500 and jail time is capped at 6 months.  But each violation may be separately punished, for instance, each day is a separate violation.

Due Process requirements are too complicated for this article, but suffice it to say that in both criminal or civil contempt, the proceedings are quasi-criminal in nature and a person is entitled to counsel and has a right against self-incrimination (I plead the 5th!).  There is no right to a jury trial and the court is not required to hold a live hearing.

Three elements must be satisfied to prove contempt: reasonably specific order, violation of the order, and willful intent to violate the order.  Specificity of the order means the details of compliance must be clear and in unambiguous terms so that a person knows exactly what she or he must do to comply with it.  An oral order can suffice.

Noncompliance with the order raises the inference that the violation was willful.

There is no appellate process for contempt, but the “inmate” may seek relief through a writ of habeas corpus i.e., give me the body.  The Texas Constitution prohibits imprisonment for debt, so contempt is not available for that purpose.  Cities can’t hold a person in contempt for failure to pay taxes or fees.  But we have had a person jailed for violating an injunction in running a salvage yard in violation of the order.

Contempt, while rare, is a powerful tool the court has at its disposal. One would be wise to tread lightly.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.

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