Ex Parte Daniels

OPINION

McCORMICK, Judge.

This is an application for writ of habeas corpus filed pursuant to the provisions of Article 11.06, Y.A.C.C.P.

Applicant was held to be in direct criminal contempt of court by the Honorable Max W. Boyer, sitting by assignment in the 308th District Court in Harris County.¹ The contempt order was the result of an incident which occurred on January 22, 1985, while applicant was appearing pro se.

In the course of the proceedings, applicant became involved in an argument with Judge Boyer. The judge ordered applicant to leave the courtroom and to not return until she obtained counsel. When applicant failed to leave the courtroom immediately, the bailiff was ordered to escort her out.

Applicant apparently went peacefully with the bailiff until they reached the doorway of the courtroom. At that point, applicant is alleged to have physically attacked the master of the court. The bailiff then moved to restrain applicant and a general disturbance erupted in which several people were involved.

The record indicates that at some point after this occurrence the trial judge ordered applicant brought before him for a summary contempt proceeding. During the course of this hearing, applicant did not have the benefit of retained counsel but instead continued to act in a pro se capacity. Applicant was found to be in direct criminal contempt and ordered to be confined in jail for a period of thirty days. No fine was imposed. Applicant was ordered to pay thirty-three dollars in court costs.

Applicant, now represented by retained counsel, alleges two grounds of relief in her application for writ of habeas corpus. Applicant first argues that her confinement is illegal because she was denied due process of law in that she was denied counsel during the contempt proceedings. Second, applicant argues that her confinement is illegal because she is being denied equal protection of the law because the sheriff of Harris County is denying her credit for good behavior shown during time served.

Contempt power is a necessary and integral component of judicial authority. Gompers v. Bucks Stove & Range Company, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed.2d 797 (1911). While it is clear the exercise of this authority should be tempered with common sense and sound discretion, contempt power is accorded wide latitude because it is essential to judicial independence and authority. Ex parte Browne, 543 S.W.2d 82 (Tex.Cr.App.1976); Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966).

At the outset of any discussion or judicial determination of the right of due process in a contempt case, it is necessary to distinguish “direct” contempt from “constructive” contempt. Direct contempt is contempt which is committed or occurs in the presence of the court. In direct contempt cases the court has direct knowledge of the facts which constitute contempt. Constructive or indirect contempt involves actions outside of the presence of the court. Constructive contempt refers to acts which require testimony or the production of evidence to establish their existence.

The distinction is important because due process imposes different standards for the proceedings in which the contempt is adjudicated. In cases of constructive contempt in which factual issues relating to activities outside the court’s presence must be resolved, due process requires the accused be afforded notice and a hearing. Ex parte Standard, 596 S.W.2d 218 (Tex.Cr.App.1980); Ex parte Mouille, 572 S.W.2d 60 (Tex.Cr.App.1978). In a situation involving indirect or constructive contempt, the contemner cannot be legally confined without a reasonable opportunity to obtain counsel. Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); Ex parte Flournoy, 312 S.W.2d 488 (Tex.1958), and cases cited therein.

In cases of direct contempt, however, the behavior constituting contempt has occurred in the presence of the court. The judge has personal knowledge of the events in question and the court is allowed to conduct a summary proceeding in which the contemner is not accorded notice nor a hearing in the usual sense of the word. Ex parte Flournoy, supra; Ex parte Norton, 610 S.W.2d 512 (Tex.Cr.App.1981).

Furthermore, in cases of direct contempt, the accused has no right to counsel. Cooke v. United States, supra; Ex parte Norton, supra. The right to counsel is, of course, one of the most fundamental protections guaranteed under the United States Constitution. The rationale for this very limited exception to the basic principle of the right to counsel was explained in the case of Cooke v. United States, supra:

“To preserve order in the courtroom for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court, when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law, and the punishment imposed is due process of law....” 267 U.S. at 394, 45 S.Ct. at 534.

This Court has noted in Ex parte Flour-noy, supra:

. [RJelator was committed for, and only for, a direct contempt represented by his failure and refusal to obey the command of the court, given in open court, to disclose to the court the whereabouts of the minor child and to produce him in court so that the court might exercise its jurisdiction to deal with the custody of the child in his own best interests. Litigants and others appearing in court are certainly not entitled to counsel and a hearing before they may be committed for every type of direct contempt.” At 492.

See also, Ex parte Terry, 128 U.S. 289, 95 S.Ct. 77, 32 L.Ed. 405 (1975).

Applicant has argued that the acts of contempt which she is accused of having committed did not take place in the judge’s presence. Applicant states that the judge did not actually see much of the activity which took place at the door of the courtroom. Applicant states that the judge required testimony before he could make a complete determination that contemptuous actions occurred. Therefore, applicant argues her contempt was constructive rather than direct and applicant therefore argues that she was denied due process because she was denied the right of counsel.

The record reflects that the activities which gave rise to applicant’s being held in contempt occurred in the 308th District Court while Judge Boyer was present and seated at the bench. Applicant states in effect that due to the rapid and confusing sequence of events the judge did not actually see everything that occurred, but only witnessed a general disturbance. Applicant urges this Court to accept the proposition that this means the actions constituting contempt did not occur in the presence of the court.

Applicant overlooks the fact that “in the presence of the court” does not necessarily mean in the immediate presence of the trial judge. Ex parte Aldridge, 169 Tex.Cr.R. 395, 334 S.W.2d 161, 169 (1960). As we stated above, the rationale justifying the harsh remedy of direct contempt adjudications is that the authority and ability of the courts to conduct the peoples’ business is compromised by the disruptive actions of the alleged contemner. Ex parte Harvill, 415 S.W.2d 174 (Tex.1967); Ex parte Gordon, 584 S.W.2d 686 (Tex.1979). It is for this reason that this Court has held that the court is present whenever any of its constituent parts, the courtroom, the jury and the jury room are engaged in pursuing the work of the court. Ex parte Aldridge, supra. It was for this reason that the applicant in Ex parte Aldridge, supra, was properly determined to have committed direct contempt when he placed contemptuous publications in the corridors of the courthouse where prospective jurors would necessarily see them. Ex parte Aldridge 334 S.W.2d at 169.

In the case before us, it is clear that applicant’s behavior was sufficiently “before the court” to justify a determination that she was in direct contempt of the court. Her actions took place in the presence of the trial judge. Even though some details of the disturbance were not noted by the trial judge due to the confusion and rapid sequence of the events does not mean the incident did not occur in the presence of the court. It is undisputed that the judge witnessed what he considered a disturbance and felt compelled to interrupt court business and intervene in the activities which took place at the courtroom entrance. The judge felt it was necessary to further interrupt the court’s business by calling a recess.

The bailiff and the master of the court are court officers. The ability of the 308th District Court to conduct its duties was compromised by the direct physical attack on one of its officers in the courtroom and in the physical presence of the trial judge. As such, applicant’s actions constitute direct contempt.

Applicant’s second ground of error alleges a violation of equal protection because the sheriff of Harris County has not given her credit for good behavior. Applicant alleges that it is the policy of the Harris County Sheriffs Department to award credit on sentences for demonstrated good behavior. Applicant states that all other prisoners in Harris County receive such consideration.

In addressing this contention, we find guidance in the opinion of the Amarillo Court of Appeals in Ex parte Rogers, 633 S.W.2d 666 (Tex.App. — Amarillo, 1982):

“The threshold question for our determination is whether a county sheriff may give ‘good time’ credit on a jail term assessed as punishment for criminal contempt of court....

“Article 5118a, Tex.Rev.Civ.Stat.Ann. (Vernon Pamphlet Supp.1971-1981), provides in pertinent part:

In order to encourage county jail discipline, a distinction may be made in the terms of prisoners so as to extend to all such as are orderly, industrious and obedient, comforts and privileges according to their deserts; ... Commutation of time for good conduct, industry and obedience may be granted the inmates of each county jail by the sheriff in charge.

“In construing this statute, in a somewhat different context, the Court of Criminal Appeals has said, ‘[s]uch statute provides that the sheriff shall have the sole discretion in granting commutation of time of Those prisoners in his custody serving jail terms in the county jail.’ [Emphasis added.] State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex.Cr.App.), cert. denied sub nom. Pruett v. Texas, 404 U.S. 910, 92 S.Ct. 226, 30 L.Ed.2d 182, rehearing denied 404 U.S. 996, 92 S.Ct. 529, 30 L.Ed.2d 548 (1971).

“The question whether Article 5118a gives the sheriff power to commute time for prisoners serving contempt sentences is apparently one of first impression. Both the Court of Criminal Appeals and our Supreme Court have, however, decided similar issues relating to contempt by analogizing from the procedures followed in misdemeanor cases.

“In Ex parte Heptinstall, 118 Tex. Cr.R. 160, 39 S.W.2d 75 (1931), our Court of Criminal Appeals, in deciding whether a woman found in contempt and sentenced to pay a $100.00 fine and serve 3 days in jail should be released without first having paid her fine, said:

This not being a civil but a criminal contempt, [citations omitted], the fine, if not reduced by a judgment of the court in which it was entered, must be paid or satisfied in the same manner as prescribed by law for the satisfaction of a conviction for a misdemeanor.... Id. 39 S.W.2d at 76.

“The court went on to hold that relator must satisfy the judgment by either paying or serving out her fine before she should be entitled to release. Id.

“Our Supreme Court used a like analysis in Ex parte Genecov, 143 Tex. 476, 186 S.W.2d 225 (1945). There, the issue was whether the court had power to ‘assess punishment for more than one act of contempt in a single proceeding, although the aggregate punishment assessed exceeds the punishment which the court is authorized to assess for a single contemptuous act_’ Id. 186 S.W.2d at 226-27. Holding that the court does have the power to do so, our court of superior jurisdiction stated that contempt is analogous to a misdemeanor. Id. 186 S.W.2d at 227. A defendant may be convicted of separate, independent misdemeanors in a single information, the court reasoned, therefore, a contemnor may be found to have committed, and be assessed punishment for, more than one act of contempt in one proceeding. Id.

“Utilizing the misdemeanor analogy, we find the sheriff was authorized by Article 5118a to give relator ‘good time’ credit on her thirty-day sentence for contempt. By its terms, Article 5118a applies to all persons serving jail terms in county jail, including, of course, those convicted of misdemeanors. State ex rel. Vance, 465 S.W.2d at 168. Thus, just as the sheriff may give those serving misdemeanor sentences credit for ‘good time’ served, he may likewise do so on a sentence for criminal contempt....” [Emphasis in original opinion.] Ex parte Rogers at 668-669.

We likewise find that a county sheriff is authorized to give ‘good time’ credit to one serving a sentence for criminal contempt. However, since the granting of such ‘good time’ credit rests solely in the discretion of the sheriff, State Ex rel. Vance v. Clawson, supra, and since the instant record fails to reveal any facts tending to demonstrate an abuse of such discretion, we will not interfere.

The relief prayed for is denied.

MILLER, J., concurs in the result of the first ground.

1 . Applicant was sentenced pursuant to the provisions of Article 1911a, V.A.T.C., which has been repealed by Section 1 of Acts 1985, 69th Leg., ch. 480, which enacted Title 2, Judicial Branch of the Government Code which became effective on September 1, 1985.