                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                         '

    IN RE: TOM DARNOLD,                                  '                 No. 08-13-00257-CR
    IN HIS OFFICIAL CAPACITY AS AN
    ASSISTANT DISTRICT ATTORNEY                          '           AN ORIGINAL PROCEEDING
    FOR THE STATE OF TEXAS,
                                                         '                   IN MANDAMUS
                                    Relator.
                                                         '

                                                 OPINION

        Tom Darnold, Relator, has filed a petition for writ of mandamus against the Honorable

Marcos Lizarraga, Judge of the 168th District Court of El Paso County, Texas (hereinafter

Respondent) requesting that we order Respondent to set aside all orders initiating contempt

proceedings against Relator without providing notice of the charges and affording a reasonable

amount of time to prepare for a hearing.1 We conditionally grant the writ of mandamus.

                                       FACTUAL BACKGROUND

        This mandamus proceeding arises out of the criminal prosecution of the real party in

interest, Roberto Flores, who is charged by indictment with family violence assault. 2 Prior to

indictment, Flores was placed on a $10,000 personal recognizance bond.

1
   Two other assistant district attorneys, Melissa Warrick and Lillian Blancas, have also filed petitions for writ of
mandamus against Respondent requesting the same relief. See In re Melissa Warrick, No. 08-13-00255-CR; In re
Lillian Blancas, No. 08-13-00256-CR.
2
  The criminal case is styled The State of Texas v. Roberto Flores (cause number 20130D03010) and is pending in
the 168th District Court of El Paso County, Texas.
                                  Events of July 10 - 12, 2013

       Following indictment, a capias was issued and Flores was scheduled for arraignment on

July 10, 2013 at 7:30 a.m. as well as a hearing on his motion to withdraw the capias. Flores

appeared with his attorney, Ruben Nunez, prior to 7:30 and executed a waiver of arraignment.

Nunez subsequently left the 168th District Court, but he returned to the courtroom at 11:30 a.m.

for a hearing on the motion to withdraw the capias. Assistant District Attorneys Melissa Warrick

and Lillian Blancas were assigned to the 168th District Court at the time and they appeared on

behalf of the State at that hearing. Flores requested that Respondent continue him on the same

personal recognizance bond and not require him to be booked through the jail. Respondent

indicated that he understood the State was taking the position that it was necessary for Flores to

be booked on the charged offense because it would create problems with respect to establishing

his identity in the future if he was not booked. Respondent did not rule on Flores’ motion and

instead continued the hearing to 3:00 p.m. that afternoon. Respondent told the parties that Flores

would be in the constructive custody of the bailiff in the meantime under whatever conditions the

bailiff decided were appropriate, but Flores would not be allowed to leave the courthouse.

Respondent instructed the prosecutors to provide him with authority regarding the extent of his

discretion to grant the motion and permit Flores to not be booked. He also asked them to let him

and Nunez know if they were “inclined to call another peace officer to interrupt that [sic]

custody . . . .” Respondent then adjourned the proceedings.

       At 2:00 p.m. that same day, Respondent requested the attorneys to return to the

courtroom and he called the Flores case for a hearing to address what he characterized as “dirty

pool.” Warrick and Blancas appeared on behalf of the State and Darnold was present in the

courtroom. The bailiff, identified on the record as Mr. Quinn, stated that Deputy Robinson had



                                              -2-
just informed him that one of the Assistant District Attorneys had gone to the Sheriff’s Office

and demanded that Flores be arrested.               Mr. Quinn reported the conversation with Deputy

Robinson to Respondent. Respondent then asked the Assistant District Attorneys if they were

going to let him know they were attempting to have Flores arrested. Blancas responded that she

had talked to the bailiff earlier and let him know what they were trying to do and the bailiff

subsequently went into Respondent’s office. Blancas spoke with Respondent in the hallway and

Respondent acknowledged he was aware that a peace officer who has an arrest warrant or capias

has a duty to be diligent in executing it. Blancas returned to Deputy Robinson’s office and spoke

to him again about the situation. Deputy Robinson told them that he had spoken with the bailiff

and had been informed that Flores would be placed under arrest at the conclusion of the

afternoon hearing so they did not need to worry about it anymore.

         Respondent asked Blancas if she thought it was okay to take action during the recess to

have Flores arrested given the instructions Respondent had stated at the conclusion of the earlier

hearing. She replied that she believed it was proper because there was an active capias. Blancas

cited Article 23.13 of the Code of Criminal Procedure3 in support of her position, but

Respondent stopped her from further discussing the merits of the issue raised by Flores’ motion

to withdraw the capias. Blancas added that Respondent had instructed her to let him know if

they intended to have Flores arrested, and she had notified the bailiff that they had talked to the

Sheriff’s Office about having Flores arrested.                She apologized for not contacting Nunez

immediately but explained that she did not have his cell phone number.

         The parties subsequently argued the merits of Appellant’s motion to withdraw the capias

and whether it was necessary for Flores to be arrested and booked. When Respondent asked the


3
  See TEX.CODE CRIM.PROC.ANN. art. 23.13 (West 2009)(“In felony cases, the defendant must be delivered
immediately to the sheriff of the county where the arrest is made together with the writ under which he was taken.”).

                                                        -3-
State to explain its position with regard to the arrest of Flores, Blancas argued that because a

capias had been issued for Flores, he should be delivered immediately to the sheriff pursuant to

Article 23.13. Blancas asserted that if Flores was not arrested and booked through the jail, he

would not be fingerprinted or photographed and identity would become an issue in the case.

After undertaking a review of the police report and a non-prosecution statement filed by the

complainant, Respondent granted the motion to withdraw the capias and set Flores’ bond at a

$10,000 personal recognizance bond. Flores was not arrested or booked.

           Near the conclusion of the hearing, Respondent addressed Warrick and Blancas. He

stated that he had told them he expected to be told if they decided to have Flores arrested before

the 3:00 p.m. hearing, but they had failed to do that and he would not trust them in the future.

Assistant District Attorney Tom Darnold4 then asked to address Respondent. Darnold explained

that he found the circumstances regarding Flores’ custody to be both confusing and unusual, so

he had suggested to Blancas and Warrick that they ask a deputy sheriff to talk to the bailiff to

determine the exact nature of the situation. Respondent explained that he purposely did not order

the Assistant District Attorneys to not have Flores arrested because he knew it would result in a

mandamus being filed against him. Respondent also expressed his belief that the District

Attorney’s Office was trying to exert all of its power to “teach [him] a lesson”.

           The following morning, July 11, 2013, Warrick and Blancas were present in the

courtroom when Respondent called the Flores case. Respondent stated:

                   Okay. Timing is an issue in these proceeding [sic], and so I am not doing
           that at this second, but I’m putting you on notice that as soon as I can get Mr.
           Darnold in here as well I’m going to hold -- I’m going to hold Ms. Warrick, you,
           Ms. Blancas, you, and Mr. Darnold in direct contempt regarding the proceeding
           that ended less than three busy [sic] hours ago.



4
    Darnold is Chief of the Appellate Section in the 34th District Attorney’s Office.

                                                          -4-
                And I know that we have other matters on the docket, that’s the reason I’m
       not doing it right this second. But I would ask you to please -- I’ll give you some
       time to go notify your office and I just need to know that Mr. Darnold is aware of
       this. I would appreciate his presence. I’m not going to have anybody arrested
       until I let -- or seized or held. My intent is to make sure that Mr. Darnold is on
       notice of my intent and then I will give you a time and an hour. I will give you-all
       time to get your lawyer to prepare any paperwork that you want for what I’ve told
       you I’m going to do.

              If you are not going to attend the rest of the proceedings this morning, the
       docket, please send somebody up to take your place.

       Respondent called the case again a short time later and Assistant District Attorney Joe

Monsivais appeared on behalf of Warrick, Blancas, and Darnold. After Respondent confirmed

that he intended to hold the three Assistant District Attorneys in contempt, Monsivais advised the

court that Warrick, Blancas, and Darnold were asserting their Fifth Amendment rights.

Respondent stated that he had already met with someone he identified as Ms. Tarango and

individuals from the Sheriff’s Office, and he had requested the presence of Chuck Molinar,

Officer Pitblado, and Officer Chavez in the courtroom at 2:30 p.m. Respondent advised the

parties that he had not been able to contact Flores’ attorney so he had scheduled a contempt

hearing for 2:30 p.m. Monsivais objected on the ground that Warrick, Blancas, and Darnold had

not been given notice of the allegations against them, they had not been served with a show-

cause order, and he asserted that Respondent lacked authority to summarily hold them in

contempt without notice. Respondent determined that notice was not required because it was

direct contempt, while Monsivais argued that the actions the court had an issue with had

occurred outside of the presence of the court so it could not be direct contempt. Monsivais also

argued that officers of the court were entitled to notice of the charges even if it was direct

contempt. The court re-set the contempt hearing for 2:00 p.m. the following day, July 12, 2013.




                                              -5-
       Warrick, Blancas, and Darnold filed a written objection to the lack of notice of the

specific allegations against each of them and they requested a separate hearing for each

individual. They also objected to a lack of notice of the hearing. Respondent called the Flores

case for announcements at the scheduled hearing time on July 12, 2013. Michael Wyatt, an

Assistant County Attorney, attended the hearing and appeared on behalf of Warrick, Blancas,

and Darnold. Joe Monsivais and Ballard Shapleigh appeared on behalf of the State and Ruben

Nunez appeared on behalf of Roberto Flores.         Monsivais invoked “the rule” and advised

Respondent that the State had subpoenaed Respondent’s bailiff and court coordinator. He asked

that they be placed under the Rule, but Respondent stated he was not going to rule on the State’s

invocation of the Rule with respect to the bailiff and court coordinator. Respondent then asked

Monsivais, Wyatt, and Nunez to meet with him in the jury room. Warrick, Blancas, and Darnold

were not permitted to attend the meeting which lasted approximately four and one-half hours.

                                The First Mandamus Proceeding

       While Respondent remained behind closed doors with the attorneys for several hours,

Warrick, Blancas, and Darnold filed a motion for emergency relief with this Court. The Court

granted that motion and stayed all proceedings in the Flores case pending resolution of the

mandamus. Warrick, Blancas, and Darnold later filed a voluntary motion to dismiss the original

proceeding on the ground that an agreement had been reached with Respondent whereby he

would not proceed with the contempt action if they would dismiss the mandamus proceedings.

We granted that motion and dismissed the case on Friday, August 23, 2013. See In re The State

of Texas, No. 08-13-00186-CR, 2013 WL 4539878 (Tex.App.--El Paso August 23, 2013, orig.

proceeding).




                                              -6-
                       Respondent Proceeded with the Contempt Hearing

       The following Monday morning, August 26, 2013, Respondent notified 34th District

Attorney Jaime Esparza, Ruben Nunez, Michael Wyatt, Ballard Shapleigh, Joe Monsivais, and

Lily Stroud by email that he intended to proceed with the contempt actions against Warrick,

Blancas, and Darnold since the Eighth Court of Appeals had dismissed the mandamus action.

He entered an order setting the contempt hearing for the following day, August 27, 2013 at 2:00

p.m. Respondent also severed the contempt proceeding against Darnold, who was out of town,

from the contempt proceedings against Warrick and Blancas.

       On August 27, 2013, the contempt proceeding began and Respondent notified the

attorneys for the various parties that he had appointed Ruben Morales to serve as “legal advisor

to the Court” in the event a mandamus proceeding was filed. Respondent also noted that

Warrick, Blancas, and Darnold were not present and he asked Monsivais whether he or anyone

from the D.A.’s office had contacted the court of appeals or anyone at the court of appeals,

including clerks and secretaries, regarding the contempt proceeding. Monsivais said he had not

and was not aware of anyone who had done so. Respondent then questioned Wyatt about the

absence of Warrick, Blancas, and Darnold. Wyatt told Respondent that Darnold was out of town

and Blancas and Warrick would not attend because they had not been served with a show cause

order and they did not have sufficient notice of the hearing and contempt allegations.

Respondent addressed at length the failure of Warrick and Blancas to attend the contempt

hearing and Wyatt continued to assert that Respondent was required to serve them with notice of

the hearing and the contempt allegations.       Near the conclusion of the hearing, Respondent

distributed to Wyatt a “draft” of the court’s “observations . . . from the record” and told Wyatt he

could consider that as notice.    This document, which is titled “Notice of July 10 Actions



                                               -7-
(Selected)” sets forth twenty-one paragraphs of what appear to be findings of fact. Some of the

paragraphs cite to the reporter’s record of the July 10, 2013 hearing. Other paragraphs cite to

“Quinn Aff.” which may refer to an affidavit provided to Respondent by his bailiff, Mr. Quinn.

One paragraph cites to “Finding 22” but the document provided to Relator’s attorney is cut off

abruptly at paragraph or finding #21. This document is not signed by Respondent, and it cannot

be construed as a show cause order. Further, it was never served on Warrick, Blancas, or

Darnold. Warrick, Blancas, and Darnold filed petitions seeking mandamus relief and motions

for emergency relief. We stayed the contempt proceedings in order to consider the unusual

issues presented.

                                           CONTEMPT

       The issues presented in this original proceeding is (1) whether Respondent clearly abused

his discretion by initiating contempt proceedings against Relator and determining he is going to

hold him in contempt of court without affording him due process; and (2) whether Relator has an

adequate remedy at law.

                                        Standard of Review

       To obtain mandamus relief, a relator must establish both that he has no adequate remedy

at law to redress his alleged harm, and that what he seeks to compel is a ministerial act not

involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial District Court

of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007). If the relator fails to

satisfy either aspect of this two-part test, then relief should be denied. Id. The second part of the

test is satisfied if the relator can show he has a clear right to the relief sought. Id. This

requirement is met when the facts and circumstances dictate but one rational decision under




                                                -8-
unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and

clearly controlling legal principles. Id.

                            Direct Contempt v. Constructive Contempt

       Contempt has been defined as “disobedience to or disrespect of a court by acting in

opposition to its authority”.   In re Reece, 341 S.W.3d 360, 364 (Tex. 2011), quoting Ex parte

Chambers, 898 S.W.2d 257, 259 (Tex. 1995)(orig. proceeding). Contempt is a broad and

inherent power of a court, but it should be exercised with caution, In re Reece, 341 S.W.3d at

364, and as a “last resort.” Ex parte Pink, 746 S.W.2d 758, 762 (Tex.Crim.App. 1988).

       Respondent determined that he was not required to provide any notice to Relator because

the contempt action involves “direct contempt,” but Relator has maintained throughout the

proceedings below and now in this original proceeding that the contempt action initiated by

Respondent involves “constructive contempt.” This is a significant issue because the amount of

due process afforded to Relator depends on the type of contempt being charged. Disobedience or

disrespect of a court which occurs in the presence of a court is known as direct contempt. In re

Reece, 341 S.W.3d at 365; Ex parte Chambers, 898 S.W.2d at 259. In a direct contempt case,

the court must have direct knowledge of the behavior constituting contempt. In re Reece, 341

S.W.3d at 365, citing In re Bell, 894 S.W.2d 119, 127 (Tex.Spec.Ct.Rev. 1995). A trial court in

a direct contempt proceeding may conduct a summary proceeding without providing the alleged

contemnor with notice and a hearing, but even then, the court’s authority is not unlimited. In re

Reece, 341 S.W.3d at 365 and n.5. Contempt which occurs outside of the court’s presence is

referred to as constructive contempt.       In re Reece, 341 S.W.3d at 365.    More procedural

safeguards are afforded to constructive contemnors, including notice, a hearing to defend or

explain the charges, and the opportunity to obtain an attorney. Id.



                                                -9-
       The mandamus record establishes that all of the conduct called into question by

Respondent occurred outside of the courtroom while court was not in session or in other parts of

the courthouse. Relator did not say or do anything in the courtroom that could be construed as

being disrespectful of the court or in violation of an order of the court. The record also

establishes that Respondent does not have direct knowledge of the pertinent facts as he gained all

of his knowledge about the actions of the three prosecutors by questioning them after-the-fact in

the courtroom and by speaking to other people, including his bailiff and one or more deputy

sheriffs, after the events took place.    Consequently, this case concerns only constructive

contempt.

                              Civil Contempt v. Criminal Contempt

       Contempt is further classified into either civil or criminal contempt. In re Reece, 341

S.W.3d at 365.     Civil contempt is remedial and coercive in nature -- the confinement is

conditioned on obedience with the court’s order. Id. Thus, civil contempt is the process by

which a court exerts its judicial authority to compel obedience to some order of the court. In re

Krueger, No. 03-12-00838-CV, 2013 WL 2157765 (Tex.App.--Austin May 16, 2013, orig.

proceeding), citing Ex parte Padron, 565 S.W.2d 921, 924 (Tex. 1978). Once the contemnor

obeys the court order, the contemnor is released from his confinement. See Ex parte Werblud,

536 S.W.2d 542, 545 (Tex. 1976). In civil contempt, it is often said that the contemnor “carries

the keys of his prison in his own pocket” because imprisonment is conditional on obedience with

the court’s order. Werblud, 536 S.W.2d at 545, quoting Shillitani v. United States, 384 U.S. 364,

368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966).




                                              - 10 -
       Criminal contempt is punitive in nature. The sentence is not conditioned upon some

promise of future performance; rather, “the contemnor is being punished for some completed act

which affronted the dignity and authority of the court.” In re Reece, 341 S.W.3d at 365.

       There are no facts or even allegations in the record which could support a conclusion that

this case involves civil contempt. Even though Respondent has not yet entered a contempt order,

Respondent’s statements on the record establish that he fully intends to find Relator in contempt

and impose punishment for some act which Respondent believes violated an order of the court.

Under these circumstances, we conclude that the case concerns criminal contempt rather than

civil contempt.

                            Constitutionally Sufficient Due Process

       Notice in the due process context of criminal contempt proceedings requires two types of

notice: timely notice by personal service of the show cause hearing, and full and unambiguous

notice of the contempt accusations. Gonzalez v. State, 187 S.W.3d 166, 170 (Tex.App.--Waco

2006, no pet.), citing Ex parte Adell, 769 S.W.2d 521, 522 (Tex. 1989), Ex parte Vetterick, 744

S.W.2d 598, 599 (Tex. 1988); In re Rowe, 113 S.W.3d 749, 752 (Tex.App.--Austin 2003, orig.

proceeding.). Notice of the contempt allegations or accusations must state when, how, and by

what means the person has been guilty of contempt and must be personally served on the alleged

contemnor in a motion for contempt filed by an opposing party, a show cause order issued by the

court, or equivalent legal process.   See Ex parte Chambers, 898 S.W.2d at 262; Ex parte

Vetterick, 744 S.W.2d at 599.      Notice must be in writing and personally served on the

contemnor; notice given to the attorney is inadequate. In re Moreno, 328 S.W.3d 915, 918

(Tex.App.--Eastland 2010, orig. proceeding), citing Ex parte Herring, 438 S.W.2d 801, 803

(Tex. 1969); Ex parte Vetterick, 744 S.W.2d at 599 (notice should be by show cause order or



                                             - 11 -
other equivalent legal process personally served on the alleged contemnor); In re Acceptance

Insurance Company, 33 S.W.3d 443, 449 (Tex.App.--Fort Worth 2000, orig. proceeding).

Notice must also be given a reasonable time before the hearing. Hayes v. Hayes, 920 S.W.2d

344, 346-47 (Tex.App.--Texarkana 1996, writ denied). A contempt order rendered without

adequate notification is void. Ex parte Adell, 769 S.W.2d at 522; Ex parte Blanchard, 736

S.W.2d 642, 643 (Tex. 1987).      Constructive notice of the contempt hearing or contempt

allegations is constitutionally inadequate. See Gonzalez, 187 S.W.3d at 170-71 (refusing to

adopt a rule that constructive notice of a contempt hearing or of contempt charges can be

appropriate).

                              No Notice of Contempt Allegations

       The mandamus record establishes that Respondent failed to give Warrick, Blancas, or

Darnold notice of the contempt allegations. At 11:41 a.m. on August 26, 2013, Respondent sent

an email to 34th District Attorney Jaime Esparza, Ruben Nunez, Michael Wyatt, Ballard

Shapleigh, Joe Monsivais, and Lily Stroud advising them that since the Eighth Court of Appeals

had dismissed the mandamus proceeding the previous business day, August 23, 2013, he

intended to conclude the contempt proceedings so that they could “get on with the underlying

prosecution.”   The email notified these attorneys that a contempt hearing was set for the

following day at 2:00 p.m. and the presence of the alleged contemnors was “NOT waived.”

Respondent also entered a written order setting the Flores cause for a contempt proceeding at

2:00 p.m. on August 27, 2013 and stating that, “[t]he presence of the alleged contemnors IS NOT

waived.” It is undisputed that Flores did not file a motion for contempt and Respondent did not

enter a written show cause order giving Warrick, Blancas, and Darnold actual notice of when,

how, and by what means each of them had been guilty of contempt. Without such notice, each



                                            - 12 -
of them is left to guess whether Respondent is alleging they violated an oral or written order of

the court or they committed contempt in some other manner.

         At the contempt hearing on August 27, 2013, and in response to objections and argument

by Relator’s attorney, Michael Wyatt, to a lack of notice of the hearing and contempt allegations,

Respondent provided to Wyatt a document titled “NOTICE OF JULY 10 ACTIONS

(SELECTED).” This document contains what appear to be selected fact findings by Respondent

about the events which purportedly occurred on July 10, 2013. These fact findings include

citations to the reporter’s record of the July 10 proceedings, but they also include Respondent’s

recollection of his conversations with his bailiff and apparently make reference to an affidavit of

the bailiff.

         The only indication of the conduct found to be objectionable by Respondent is finding

#19 which states: “The behavior of ADA Darnold caused his subordinates, ADAs Warrick and

Blancas, to disobey the court’s directives and orders, to wit: to cease attempts to arrest Flores,

and wait until 3 p.m.”5 The document as a whole, and fact finding #19 in particular, do not

provide constitutionally adequate notice of the contempt allegations for three reasons. First, the

document was not included in a show cause order or some other legal process as required by

established principles of contempt law. See Ex parte Adell, 769 S.W.2d at 522 (noting that the

Court of Criminal Appeals has repeatedly held that full and unambiguous notice of the

accusation of contempt must be served on the alleged contemnor and finding that the motion for

contempt and show cause order “clearly fail to meet that standard.”); Ex parte Vetterick, 744



5
   This fact finding is contradicted by Respondent’s statement on the record in the July 10, 2013 hearing that: “I
mean, I had a hearing at 11 o’clock and I told them this is a novel question. Everything you just said, I told them
that. And I said -- well, you heard what I read into the record -- I’m putting him in the constructive custody with a
peace officer and let’s come back here at 3 o’clock and let me know if you’re not going to -- if you’re taking issue
with it, that you’re going to have him arrested. I never said don’t arrest him because I know. I’m not dumb. Then
you wouldn’t be here right now. You’d be preparing the mandamus.”

                                                       - 13 -
S.W.2d at 599 (“In a case involving conduct outside the presence of the court, due process

requires that the alleged contemnor receive full and unambiguous notification of the accusation

of any contempt. This notice should be by show cause order or equivalent legal process

personally served on the alleged contemnor, and it should state when, how and by what means

the defendant has been guilty of contempt.”). Second, the document was not personally served

on Relator prior to the hearing. See Ex parte Adell, 769 S.W.2d at 522; Ex parte Vetterick, 744

S.W.2d at 599. Third, assuming Respondent intended to allege that Warrick, Blancas, and

Darnold violated a court order as indicated in finding #19, the document does not clearly and

unambiguously provide notice of the order allegedly violated, it does not indicate whether the

order allegedly violated was verbal or written, and it does not set forth the specific conduct of

each of the three Assistant District Attorneys which Respondent alleges violated the order. One

purpose of requiring notice is to give the alleged contemnor an opportunity to investigate and

prepare a defense to the charge.      If Respondent intended to allege some other type of

contumacious conduct that did not constitute a violation of a court order, the document does not

state when, how, and by what means each of them has been guilty of contempt. Instead,

Respondent would have Relator sift through the document in order to obtain notice of the

contempt allegations.   The procedure employed by Respondent falls woefully short of the

requirements of due process and amounts to no notice at all.

                          Inadequate Notice of the Contempt Hearings

       Respondent gave Warrick, Blancas, and Darnold inadequate notice of the first contempt

hearing. At approximately 8:30 a.m. on July 11, 2013, Respondent called the Flores case when

Warrick and Blancas arrived in the courtroom. He immediately announced he was going to hold

each of them and Darnold in contempt as soon as he could “get Mr. Darnold in here.”



                                              - 14 -
Respondent stated he would give them some time “to get your lawyer to prepare any paperwork

that you want for what I’ve told you I’m going to do.” After Darnold arrived in the courtroom,

Respondent moved the contempt hearing to 2:30 that same afternoon, and he later moved the

contempt hearing to the following day at 2:00 p.m. Notice of these settings was provided

verbally. Verbal notice of a contempt hearing is inadequate. Ex parte Vetterick, 744 S.W.2d at

599.

       With respect to the August 27 contempt hearing, Respondent entered a written order

setting the contempt proceeding for a hearing and provided it to Wyatt approximately twenty-

four hours in advance of the hearing, but he did not provide any notice to Warrick, Blancas, or

Darnold.   Constructive notice of the contempt hearing is constitutionally inadequate.       See

Gonzalez, 187 S.W.3d at 170-71. The notice provided by Respondent amounted to no notice at

all and amplifies the significance of not receiving the constitutionally-required notice of the

contempt allegations.    We conclude that Relator has met his burden of establishing that

Respondent clearly abused his discretion by not affording him the minimum requirements of due

process before subjecting him to contempt proceedings and a potential loss of his liberty.

                                   Inadequate Remedy at Law

       The only remaining issue is whether Relator has an adequate remedy at law. This issue is

the focus of Respondent’s response. Respondent contends that this mandamus proceeding is

premature because a contempt order has not been entered and Relator must wait until he has

entered a contempt order, and even then, he has an adequate remedy by means of habeas corpus

or mandamus, or by requesting a de novo hearing before another judge as provided for by

Section 21.002(d) of the Texas Government Code.




                                              - 15 -
       An order of contempt is not appealable.           Ex parte Gray, 649 S.W.2d 640, 642

(Tex.Crim.App. 1983). Contempt orders may be reviewed by an application for writ of habeas

corpus, if the contemnor has been confined, or by a petition for writ of mandamus, if the

contemnor has not been confined. See Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995). An

additional statutory remedy is available to an officer of the court who has been held in contempt.

Under Section 21.002(d) of the Texas Government Code, an officer of the court who is held in

contempt shall, on proper motion filed in the offended court, be released on his own personal

recognizance pending a de novo determination of his guilt or innocence. TEX.GOV’T CODE ANN.

§ 21.002(d)(West 2004); Ex parte Waters, 499 S.W.2d 309, 310-11 (Tex.Crim.App. 1973). If

the officer of the court files a motion pursuant to Section 21.002(d), the judge who held the

officer of the court in contempt has a ministerial duty to refer the matter to the presiding judge of

the administrative judicial region for assignment to a judge other than the offended court to

determine the guilt or innocence of the officer of the court. See TEX.GOV’T CODE ANN. §

21.002(d); Ex parte Waters, 499 S.W.2d at 310-11; Ex parte Howell, 488 S.W.2d 123, 126

(Tex.Crim.App. 1972). The proceeding before the second judge is de novo.

       Respondent cites Collins v. Kegans, 802 S.W.2d 702 (Tex.Crim.App. 1991) in support of

his argument that this mandamus proceeding is premature. In Collins v. Kegans, the Court of

Criminal Appeals refused to grant mandamus relief requested by the TDCJ director, James A.

Collins. In the underlying criminal case, the trial court sentenced a female defendant to the boot

camp program even though it is restricted to male defendants. Collins, 802 S.W.2d at 703-04.

Collins sought to have that that portion of the criminal judgment and sentence rescinded in order

to protect himself from possible contempt actions against him by the trial judge. Id., 802 S.W.2d

at 704. According to the opinion, there were no pending contempt proceedings. Id. The Court



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of Criminal Appeals declined to grant mandamus relief because Collins had failed to show why

habeas corpus would be an inadequate remedy if and when the trial judge pursued contempt

proceedings as a means of enforcing her orders. Id., at 704-05. The Court cited the rule that

“mandamus will not issue during the pendency of contempt proceedings and . . . the validity of a

contempt judgment can be attacked ‘only by way of habeas corpus.’” Id., at 705.

       In support of its holding, Collins cited the Texas Supreme Court’s decision in Deramus v.

Thornton, 160 Tex. 494, 333 S.W.2d 824, 827 (1960). In that case, the Supreme Court refused

to issue a writ of mandamus against a trial court which had threatened a relator with contempt

actions. Deramus, 333 S.W.2d at 827. The Court noted that it was not a question of jurisdiction

to entertain the writ of mandamus, but rather the consideration of long-established policy. Id.

The relator claimed that habeas corpus was an inadequate remedy because he would suffer the

stigma of arrest and confinement. Id. The Supreme Court noted that these issues are common to

every case where escape is sought from the penalty of a contempt judgment and refused to depart

from the rule that it would not issue mandamus relief during the pendency of contempt

proceedings. Id.

       The instant case is readily distinguishable from Collins because contempt proceedings are

pending in this case and we have determined that Relator has not been provided with

constitutionally-adequate notice of the hearing or the allegations of contempt.        It is also

distinguishable from Deramus because Relator is not claiming that habeas corpus or mandamus

proceedings are inadequate to address the stigma of arrest and confinement. Relator is asserting

that the contempt proceeding itself is constitutionally invalid and should be terminated until he

has been afforded due process.




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       We also note that Deramus was decided in 1960. In more recent years, beginning with In

re Prudential Insurance Company of America, 148 S.W.3d 124 (Tex. 2004), the Texas Supreme

Court has retreated from an overly restrictive view of what constitutes an adequate remedy. In

that case, the Supreme Court stated:

       The operative word, ‘adequate’, has no comprehensive definition; it is simply a
       proxy for the careful balance of jurisprudential considerations that determine
       when appellate courts will use original mandamus proceedings to review the
       actions of lower courts. These considerations implicate both public and private
       interests. Mandamus review of incidental, interlocutory rulings by the trial courts
       unduly interferes with trial court proceedings, distracts appellate court attention to
       issues that are unimportant both to the ultimate disposition of the case at hand and
       to the uniform development of the law, and adds unproductively to the expense
       and delay of civil litigation. Mandamus review of significant rulings in
       exceptional cases may be essential to preserve important substantive and
       procedural rights from impairment or loss, allow the appellate courts to give
       needed and helpful direction to the law that would otherwise prove elusive in
       appeals from final judgments, and spare private parties and the public the time
       and money utterly wasted enduring eventual reversal of improperly conducted
       proceedings. An appellate remedy is ‘adequate’ when any benefits to mandamus
       review are outweighed by the detriments. When the benefits outweigh the
       detriments, appellate courts must consider whether the appellate remedy is
       adequate.

In re Prudential, 148 S.W.3d at 136.

       The factual and procedural circumstances of this case are unique in that Respondent has

pointedly refused Relator’s consistent and repeated requests to be provided with notice of the

contempt allegations and of the contempt hearing. Further, Respondent has already announced

in open court that he intends to hold Relator in contempt of court and he has apparently prepared

fact findings prior to the actual contempt hearing to support that determination. Consequently, if

this case is not heard, Relator will in all probability be held in contempt without even a minimum

of due process being afforded her. A contempt order or judgment entered when the alleged

contemnor has not been afforded due process is void and would be vacated in a subsequent

original proceeding. See Ex parte Adell, 769 S.W.2d at 522 (granting habeas corpus relief

                                               - 18 -
because alleged contemnor’s right to due process was violated where he was not served with

motion for contempt, show cause order, or equivalent legal process notifying him of contempt

hearing; any oral notification alleged contemnor received was inadequate and notice at prior

hearing, on same date as order he allegedly violated, was deficient on its face); Ex parte

Blanchard, 736 S.W.2d at 643 (discharging alleged contemnor because he was not provided with

legal process apprising him of accusations until the contempt hearing).         In contrast with

Deramus, the circumstances and issues presented by this case are not common to every contempt

proceeding.

       While Relator could challenge a contempt order or judgment by filing a motion pursuant

to Section 21.002(d) and obtain a de novo hearing before a different judge, we are not persuaded

that the remedy is an adequate one. The assigned judge would presumably provide adequate

notice of the contempt hearing, but that judge would not be in a position to give Relator adequate

notice of the allegations of contempt. It is Respondent’s duty, as the offended judge, to provide

notice of the contempt allegations or accusations by stating when, how, and by what means

Relator has been guilty of contempt. Without notice of the contempt allegations, Relator will be

in no better position in a de novo contempt hearing before another judge than he is in the

contempt proceeding presently pending before Respondent.

       This case involves a significant ruling in an exceptional case and it presents us with the

opportunity to spare the parties the time and money wasted by improperly-conducted contempt

proceedings.   Further, we find that mandamus review is required to preserve important

constitutional rights from impairment or loss. We fail to see any benefit from allowing the

contempt proceedings to continue until Respondent has entered a void contempt order or




                                              - 19 -
judgment. For these reasons, we conclude that the benefits of mandamus review at this juncture

far outweigh the detriments.

        Having found that Relator has established both parts of the mandamus standard, we

conditionally grant mandamus relief and order Respondent to set aside all orders initiating

contempt proceedings against Relator, including the written order entered on August 26, 2013

and the “NOTICE OF JULY 10 ACTIONS (SELECTED).” Any future contempt proceedings

must comply with the principles and requirements of due process set forth in this opinion. The

writ of mandamus will not issue unless Respondent fails to comply within a reasonable period of

time.


May 30, 2014
                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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