Imagine this:
Defense Attorney (to Judge): “This is a chickenshit case, which should never have been filed . . .”1
The Court: “Counsel, I am holding you in contempt for that remark. That will be $100. Sheriff, take him away and don’t bring him back until he pays.”
Defense Attorney: “I want a personal recognizance bond and a contempt hearing before another judge. Here is my motion.”
The Court: “Motion granted.”
The Statute:
The Texas Government Code, Section 21.002(d) (2004):
An officer of a court who is held in contempt by a trial court shall, on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence. The presiding judge of the administrative judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the judge of the offended court to determine the guilt or innocence of the officer of the court.
Discussion:
The Texas Legislature provides that a lawyer held in contempt of court has a right to a hearing before another judge.
This “readjudication” of contempt (by a judge who is not already offended) runs both to guilt and to punishment for the alleged contempt. If the original court takes any action other than referring the case for assignment, those acts are void. Jamilah v. Bass, 862 S.W. 2d 201 (Tex. App.—Houston [14th Dist.] 1993, no pet.).
These statutes do not apply to an attorney who is appearing only as a witness. In Ex Parte Howell, 488 S.W. 2d 123 (Tex. Crim. App. 1972), the district judge cited the lawyer for contempt and certified the case to another judge, and thereby “fulfilled all his requirements for holding an ‘officer of the court’ guilty of contempt.” Id. at 126. When the subsequent hearing began before the assigned judge, the lawyer refused to answer a prosecutor’s question and was again cited for contempt, but:
“[W]hen he took the witness stand to testify . . . he lost his status as an officer of the court and became a witness and subject to a finding of direct contempt” by the judge. Id.
When an attorney is found in contempt by the assigned judge, he may appeal but is not again entitled to release on personal recognizance. He may be required to post an appeal bond, just like a defendant. In re Graham, 2014 Tex. App. Lexis 4926 (Tex. App.—Austin, May 8, 2014), subsequent application for a writ of habeas corpus refused, 2014 Tex. App. Lexis 6288 (Tex. Crim. App., June 12, 2014).
A sample motion follows. You can take it with you. You, or a colleague, might need it.
1. The use of the epithet “chickenshit” in the jury’s presence is constitutionally protected speech where, on the facts of the case, it does not constitute an imminent threat to the administration of justice, Eaton v. City of Tulsa, 94 S.Ct. 1228 (1974).
