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Five Common Mistakes in Contempt Cases: How to Avoid or Exploit Them

Below is an outline prepared for a presentation regarding contempt for the Dallas Bar Association Family Law Section. You may download a pdf version here.

The Basics

    • A criminal contempt conviction for disobedience to a court order requires proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation of the order; and (3) the willful intent to violate the order. One must have knowledge or notice of an order which one is charged with violating before a judgment of contempt will obtain. Noncompliance with an unambiguous order of which one has notice will ordinarily raise an inference that the noncompliance was willful.  Although the inability to comply defense rebuts the willfulness element of contempt liability, the Defendant bears the burden of proving inability to comply. Ex parte Chambers, 898 S.W.2d 257 (Tex. 1995) (orig. proceeding). 
  • Begin with the end in mind.
      • Contempt finding cannot be appealed.
        • Must be attacked by Petition for Writ of Habeas Corpus if Defendant deprived of liberty.
        • Must be attacked by Petition for Writ of Mandamus if Habeas relief is not available.
        • If not sure, file as Habeas or, alternatively, Mandamus.
        • However, the money judgment portion of a contempt judgment is subject to appeal—just not the contempt portion. See In re Office of the Attorney Gen. of Tex., 215 S.W.3d 913, 916 (Tex.App.-Fort Worth 2007, orig. proceeding).
        • If a money judgment for support or attorney’s fees is part of a contempt order, you may file a traditional appeal on judgment in addition to the petition for habeas or mandamus. In each, feel free to say, “I’m not sure which I was supposed to do,” so I’m doing both. You might then ask to consolidate the appeal with the habeas/mandamus.
  • Contempt is all about about due process
    • The Family Code provisions in chapters 6, 8, 9, 81, 85, 105, 157, 160, and 201 provide some guidance (particularly chapter 157), but due process reigns in every contempt case regarding every kind of order.
    • In every contempt case, you must have:
      • an enforceable order;
      • a good motion;
      • personal service of valid show cause order;
      • admonishments of rights (e.g. right to remain silent, right to counsel, right to confront witnesses, right to a jury in some cases); 
      • a good hearing; and 
      • a good contempt/commitment order.
  • Direct Contempt vs. Constructive Contempt
      • Contempt that occurs in the presence of a court is direct contempt.  In re Coy Reece, 341 S.W.3d 360, 365 (Tex. 2011). In direct contempt cases, the court must have direct knowledge of the behavior constituting contempt.  Id. 
      • Constructive contempt is committed outside the presence of the court. Ex Parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). Cases of constructive contempt require testimony or documentary evidence to establish the contemptuous conduct. Ex parte Daniels, 722 S.W.2d 707, 709 (Tex. Crim. App. 1987) (orig. proceeding). Because the court does not have direct knowledge of the events surrounding the contemptuous conduct, due-process requirements must be satisfied.  Constructive contempt entitles the contemnor to more procedural safeguards than those afforded to direct contemnors.  Ex parte Werblud, 536 S.W.2d 542, 546 (Tex. 1976).
  • Criminal Contempt vs. Civil Contempt
    • The purpose of civil contempt is remedial and coercive in nature. Civil contemnor carries the keys of the prison in his or her own pocket. Ex parte Werblud, 536 S.W.2d at 545.
    • Criminal contempt is punitive in nature because contemnor affronted the dignity and authority of the court. Id.
  • A contempt case is like a criminal case—The Texas Supreme Court has long held that contempt proceedings should conform as nearly as practicable to those in criminal cases. Ex parte Johnson, 654 S.W.2d 415, 419 (Tex.1983). This includes but is not limited to:
    • 5th Amendment right to remain silent;
    • right to counsel;
    • right to confront witnesses; 
    • right to a jury (sometimes); and
    • double jeopardy as a defense.

Mistake Breeding Ground No. 1: The Unenforceable Order

    • Void Orders—the court cannot enforce a void order. See Ex parte Shaffer, 649 S.W.2d 300, 301–02 (Tex. 1983) (“[O]ne may not be held guilty of contempt for refusing to obey a void order.”).
      • Nunc Pro Tunc signed after court loses plenary power that does more than correct a clerical error.
      • Cases that were reinstated when the court did not have power to do so.
      • TRO or Temporary Injunctions with no bond ordered or waived—See In re McCray, No. 05-13-01195-CV, 2013 WL 5969581, at *3 (Tex. App.—Dallas Nov. 7, 2013, orig. proceeding) (mem. op.)(finding that temporary injunction is void when it neither sets a bond nor states court is dispensing with the necessity of one)
    • Ambiguous Orders—To support a judgment of contempt, the underlying order must contain terms of compliance in clear, specific and unambiguous terms so that the person charged will readily know exactly what duties and obligations are imposed. Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding); Ex parte Chambers, 898 S.W.2d 257, 260 (Tex. 1995)
      • If an order requires a party to sign documents, best practice is to attach documents and order the party to sign those attached documents. See Ex parte Choate, 582 S.W.2d 625, 627 (Tex.Civ.App.—Beaumont 1979, no writ); See also In re Pollard, No. 05-06-00140-CV, 2006 WL 456980, at *1 (Tex. App.—Dallas Feb. 27, 2006, orig. proceeding) (mem. op. on reh’g).
      • However, be aware of the flight of fancy cases—”The order need not be full of superfluous terms and specifications adequate to counter any flight of fancy a contemnor may imagine in order to declare it vague.” Ex parte Chambers, 898 S.W.2d 257, 260 (Tex. 1995).
    • Order must contain decretal language. In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009) (orig. proceeding).
    • Court cannot use contempt to enforce a debt—No person shall ever be imprisoned for debt. TEX. CONST. art. I, § 18; See In re Green, 221 S.W.3d 645, 648-49 (Tex.2007) (orig.proceeding); See also In re Dupree, 118 S.W.3d 911, 914–15 (Tex. App.—Dallas 2003, orig. proceeding).
    • Enforcement of Terms of Community Supervision/Suspended Sentence—Orders pertaining to terms of community supervision/suspended sentences are not orders that will support an independent contempt action.
  • Practice Tips:
    • If you are trying to enforce and know your order is bad, try to settle and live to fight another day.
    • If you are defending the enforcement, pick your time to bring the ambiguity of the order to the court’s attention.

Mistake Breeding Ground No. 2: The Defective Motion for Enforcement

    • What is required? See Tex. Fam. Code § 157.002.
  • Identify the order violated
        • Type out language verbatim or attach and incorporate by reference.
        • Make sure it’s the right order—check for modified orders and orders nunc pro tunc.
  • Identify how violated
        • Due process of law requires that the contemnor be given notice of the charges levied against him or her and a reasonable opportunity to meet the charges by way of defense or explanation. Ex Parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979).
        • Date, place, and time, if applicable
        • Make sure violations are really violations (e.g., motion alleges failure to pay on the first of each month when order says to pay by 15th).
  • Identify remedy Movant is seeking
        • Criminal Contempt
          • Length of punishment
          • Concurrent vs. Consecutive
        • Civil Contempt
        • Fine
        • Attorney’s fees—have some authority ready
  • Common Issues
      • Wrong order is cited or is cited incorrectly.
      • Violations occurring before order was signed—a contemnor cannot be held in contempt of court for actions taken prior to the time the court’s order is reduced to writing. Chambers, 898 S.W.2d at 262.
      • Violations occurring after motion for enforcement filed. 
      • Violations alleged in the motion do not track obligations in the order.
      • “Every other week or weekend orders” are wrong about half the time. People lose track.
      • Movant’s lawyer tries to put someone in jail for years by trying to stack sentences.
      • Movant’s lawyer does not identify that they want jail time or how much jail time.
      • Requests for attorney’s fees when there is no statute allowing for attorney’s fees.
  • Practice Tips:
    • Read and reread motion for enforcement and make sure all the necessary elements are present.
    • Instead of typing the entire provision of the order you want to enforce, consider attaching a copy of the provision you want to enforce to the motion as an exhibit.
    • If you represent the Movant and find error, bring it to court’s attention before you get started
      • If you lose service, so bit it
    • If Defendant, you’ve got options addressed below.

Mistake Breeding Ground No. 3: The Response to the Motion

    • Answer not required, but proponent must plead and prove affirmative defenses—See In re Hall, 433 S.W.3d 203, 213 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding). 
      • Inability to pay
        • Usually a losing argument, but see In re Smith, 354 S.W.3d 929 (Tex. App.—Dallas 2011, orig. proceeding)(Defendant conclusively established inability to pay defense)
        • Hard to put on affirmative defense without putting Defendant on the stand.
      • Double Jeopardy
      • Res Judicata—If you are going to enforce one thing, better enforce everything there is to enforce. Note: there are opinions that suggest that, since contempt orders are not appealable, final orders, res judicata might not even apply to a contempt finding. However, there are cases that treat res judicata like every other case.
      • Impossibility, payment, estoppel, and laches are common affirmative defenses.
  • You may file special exceptions, but you may not want to.
  • Jury demand
      • Only for criminal contempt in which more than six months incarceration is imposed. Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976).
  • Practice Tips:
    • Probably should file general denial and claim ambiguity (even though it is not really an affirmative defense) just to avoid argument that you waived those defenses.
    • If the motion for enforcement is a mess, you may want to hold off on the special exceptions. See Ex Parte Barlow, 899 S.W.2d 791, 794-95 (Tex. App.—Houston [14th Dist.] 1995, orig. proc.) (holding that it is the Movant’s burden to make sure motion for enforcement gives notice required by due process—it is not Defendant’s burden to specially except to preserve error). 
      • Consider costs (educating opponent) vs. benefits (buying time)
      • Save something for the habeas/mandamus

Mistake Breeding Ground No. 4: The Hearing

  • Court does not admonish Defendant about 5th amendment right, right to counsel, right to confront, etc.
    • As Movant’s lawyer, do not be so gung ho to move forward that you skip admonishments. Ask the court to give them. 
    • Conversely, as a defense lawyer, do not demand that the judge admonish your client. 
      • Note, there are cases that say a party with a lawyer is not entitled to the admonishments like someone without, but you have no argument at all if you guide the court.
  • Better safe than sorry—As Movant’s attorney, always have Movant identify the Defendant during the hearing. See Ex parte Harris, 581 S.W.2d 545 (Tex. Civ. App. Fort Worth 1979, orig. proceeding). However, the trend appears to be that you are not required to identify the Defendant. See Ex parte McManus, 589 S.W.2d 790 (Tex.Civ.App.–Dallas 1979). 
  • Must prove willful violation of unambiguous order
    • Knowledge of order
    • Enforceable order
    • Evidence that it was violated
    • Have client testify 
  • Offer proof of service and order to be enforced as evidence.
  • Ask court to take judicial notice of its file.
  • Don’t forget Tex. Fam. Code § 157.162(c)—if a payment record is attached to the motion, the payment record is admissible to prove:
    • the dates and in what amounts payments were made;
    • the amount of any accrued interest;
    • the cumulative arrearage over time; and
    • the cumulative arrearage as of the final date of the record.
  • In a criminal contempt context, the question is whether the obligor had an ability to pay the support when it became due, but failed to do so. See Ex parte Ramon, 821 S.W.2d 711, 713 (Tex. App.—San Antonio 1991, orig. proceeding).
  • The affirmative defense of inability to pay to a charge of civil contempt looks at the contemnor’s ability to pay as of the date of the contempt hearing. See Ex parte Johns, 807 S.W.2d 768, 770(Tex. App.—Dallas 1991, orig. proceeding). 
  • Practice Tips:
    • If order is unenforceable, it can’t be fixed at the hearing.
      • If you’re the defense, bring it to the court’s attention at the right time, which may vary from case to case. I usually make this objection prior to getting started with evidence. 
      • If you are representing the Movant, try to get it clarified.
      • If you are representing the Movant, you may still be entitled to some relief other than jail time (e.g., contempt without jail, money judgment, make up time with kid, attorney’s fees).
    • If you get to the courthouse and realize something is messed up, if it is fixable, ask for time to fix it. 
      • If you represent the Movant, try to do it before jeopardy attaches (before the first witness is sworn or jury empaneled).
    • If you are the defense, you often have to weigh the likelihood of a successful affirmative defense against the cost of waiving your client’s Fifth Amendment right to remain silent and having the client take the stand.
    • Sometimes before ruling, judges will start to indicate they are about to rule against you, consider asking court to take the matter under advisement before ruling and give you an opportunity to brief an issue.

Mistake Breeding Ground No. 5: The Contempt/Commitment Order

    • What’s required? See Tex. Fam. Code § 157.166.
      • Identify the order violated—See Ex parte Tanner, 904 S.W.2d 202, 205 (Tex. App.—Houston [14th Dist] 1995, orig. proceeding)
      • Identify how order violated—Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex.1997). In re Nesevitch, 93 S.W.3d 510 (Tex. App. 2002)
        • Failures to include date, place, or time of violation
      • Identify relief granted.
      • The contempt order should mirror the allegations in the motion for enforcement. 
  • You should take a contempt and commitment order to the hearing.
      • You can’t send contemnor to jail on Friday and then sign commitment order on Monday-Ex parte Amaya, 748 S.W.2d 224, 224 (Tex.1988) (orig. proceeding).
    • Instead of saying “Defendant is hereby committed to the Dallas County Jail,” say the sheriff of Dallas County is ordered to take custody of Defendant…” 
      • Some courts have held that an order that lacks any directive to the sheriff to take a person into custody is not a commitment order at all. Ex parte Hernandez, 827 S.W.2d 858, 858 (Tex. 1992) (orig. proceeding). 
      • On the other hand, some say “Defendant is committed” language is sufficient. See In re Dotson, 981 S.W.2d 237, 238 (Tex. App. Houston [1st Dist.] 1998, no pet.)
    • Offenses are sometimes lumped together with only one punishment. Better practice is to specify that there is a separate sentence assessed for each violation. If only one term of confinement is assessed for more than one act of contempt and one of those acts was not punishable by contempt, the entire judgment of punitive contempt is void. Ex parte Davila, 718 S.W.2d 281 (Tex. 1986)
    • Sending Defendant to jail for civil contempt when there is no evidence that Defendant can actually comply with civil contempt obligations. A Defendant may not be confined for civil contempt unless he or she has the ability but refuses to perform the conditions for release. In re Gawerc, 165 S.W.3d 314 (Tex. 2005); Ex parte Rojo, 925 S.W.2d 654, 655 (Tex.1996). 
  • Practice Tips:
    • If you represent the Movant and your motion had provisions from the order violated attached as exhibits, use the same exhibits on the order.
    • If you represent the Defendant, be careful about signing the contempt order, as you do not want to give the other side an argument that you have waived defects within the order.

Random Bonus Tips

  • Know your judge
    • 4 kinds of judges
      • Those who follow the law and aren’t afraid to rule for defense.
      • Those who want to follow the law but also really, really, really want to enforce orders.
      • Those who have the “send them all to jail and let the court of appeals sort them out” attitude.
      • Those who don’t know the law.
    • Visiting judges
    • Associate judges in some counties
    • Does your judge think a Zoom contempt hearing is ok?
  • When there is no personal service, and I receive a notice of hearing for contempt hearing from opposing counsel:
    • I advise my client what could happen if they show or don’t show. 
    • I tell them I am not telling them what to do and that I would never tell them to disregard a court order. 
      • If they decide to go, plan accordingly.
      • If they decide not to go, plan accordingly.
    • I show up and advise court I am not authorized to accept service (maybe judge will say something that will help)
  • If you (as the lawyer in the case) are held in direct contempt during a proceeding, file a motion to be released on your own recognizance. Tex. Gov’t Code § 21.002(d).
  • When enforcing obligations that depend on reimbursement from the other side (e.g., unreimbursed medical, school tuition, etc.), consider reducing the obligation to a child support judgment first with a payoff schedule. If that payoff schedule is violated, go for contempt then.
  • Sometimes, a movant’s lawyer or judge will make a comment such as “it’s only civil contempt.” The San Antonio Court of Appeals dismisses that notion as follows:

Unless we are content with stopping after only a superficial analysis, it is apparent that the distinction between criminal and civil contempt is more imaginary than real. The purpose of the “remedial” imprisonment is intended to coerce the defendant to obey the order of the court. It is not for the benefit of the complainant but, in every sense of the word, has as its primary purpose compelling obedience with a governmental order. Dobbs, Contempt of Court: A Survey, 56 CORNELL L.REV. 183, 235-36 (1971). Since the primary purpose is to compel obedience to the prior order of the court, the benefit to the private complainant is, at best, incidental. It takes no great imagination to realize that, even in a case where the imprisonment is only punitive, as where the defendant is merely imprisoned for the permissible period of time without a purge condition, the imprisonment, although spoken of as being merely punishment for past offenses, will inevitably have the effect of inducing the defendant to comply with the court order in the future. Thus, even where the punishment must be viewed, under the traditional distinction, as punishment for criminal contempt, it has the incidental effect of bringing about a benefit to the private movant.

Ex Parte McIntyre, 730 S.W.2d 411, 422 (Tex.App.-San Antonio 1987, orig. proceeding)

  • Preparing your client
    • If Representing Movant
      • Let them know from the outset that there are frequently objections that lead to a delay, and that is ok. It just means the judge is protecting the record, which protects their case.
    • If Representing Defendant
      • Habeas Corpus/mandamus proceedings are expensive and it might be cheaper to settle.
      • Show them an opinion from a habeas proceeding in which the Defendant won. Let them know (a) that the law library is full of those cases in the South Western Reporter and (b) that just about every defendant that won was found in contempt and was sent to jail before winning.