                        NO. 07-11-00122-CV; 07-11-00334-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL E

                                 OCTOBER 28, 2011


                         R. WAYNE JOHNSON, APPELLANT

                                           v.

                            KATHLEEN CLARK AND
                         MARJORIE JENKINS, APPELLEES


           FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;

           NO. B-11685-11-01; HONORABLE EDWARD LEE SELF, JUDGE


                       IN RE R. WAYNE JOHNSON, RELATOR
                          ____________________________

Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J.1


                              MEMORANDUM OPINION

      Appellant R. Wayne Johnson, appearing pro se, appeals from the trial court’s

order dismissing his lawsuit, finding him in contempt of court and imposing a $500 fine.

We affirm the order in part, and in part dismiss the appeal for want of jurisdiction.




      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
Johnson also has filed a petition for writ of mandamus challenging the contempt order

against him. We will conditionally grant his petition.

                                        Background

       The trial court dismissed Johnson’s civil suit pursuant to Chapter 11 of the Civil

Practices and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 11.101 et

seq. (West 2010). Johnson has been declared a vexatious litigant and the 156th District

Court of Bee County entered a prefiling order requiring that he obtain permission of a

local administrative judge before filing new litigation in a Texas court. See In re R.

Wayne Johnson, No. 07-09-0035-CV, 2009 Tex.App. LEXIS 6831, at *4-5 (Tex.App.—

Amarillo August 27, 2009) (orig. proceeding) (per curiam, mem. op.). The trial court’s

dismissal order found Johnson had not obtained permission from the local

administrative judge to file his petition.   See Tex. Civ. Prac. & Rem. Code Ann. §

11.103(a) (West 2010) (clerk may not file suit of vexatious litigant subject to prefiling

order unless litigant obtains order from local administrative judge permitting filing).

       The trial court also found Johnson in violation of a court order, issued by a district

court of Harris County, requiring that he pay sanctions in the amount of $300 to the

Texas Attorney General’s Office as a prerequisite to filing suit. The court found him in

contempt and imposed a $500 fine.

       Johnson filed notice of appeal from the trial court’s order, and later filed a petition

for writ of mandamus also challenging the trial court’s order.




                                              2
                                       Analysis

      Direct Appeal

      We apply an abuse of discretion standard to review of the trial court’s dismissal,

under Chapter 11, of Johnson’s suit. Scott v. Tex. Dep't of Crim. Justice-Institutional

Div., No. 13-07-00718-CV, 2008 Tex.App. LEXIS 8941, at *5 (Tex.App.-- Corpus Christi

Nov. 20, 2008, no pet.) (mem. op.). A trial court abuses its discretion if it acts in an

arbitrary or unreasonable manner or without reference to guiding rules or principles.

Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999).

      Johnson argues the initial order declaring him a vexatious litigant is void because

the Texas Attorney General participated in defending the Bee County suit without

statutory authority. The argument has no merit. See Johnson v. Tex. Dep’t of Crim.

Justice, No. 07-08-00478-CV, 2010 Tex.App. Lexis 9891 (Tex.App.—Amarillo Dec. 14,

2010, no pet.) (mem. op.); In re R. Wayne Johnson, No. 07-07-0431-CV, 2009 Tex.App.

LEXIS 5795 (Tex.App.--Amarillo July 27, 2009) (orig. proceeding) (rejecting same

argument).

      We lack jurisdiction to consider Johnson’s complaints concerning the order

finding him in contempt and imposing a fine. Courts of appeal generally do not have

jurisdiction to review contempt orders2 by way of direct appeal. Texas Animal Health

Comm’n v. Nunley, 647 S.W.2d 951, 952 (Tex. 1983); In re A.M., 974 S.W.2d 857, 861

      2
         The Texas Supreme Court has broadly defined contempt as “disobedience to or
disrespect of a court by acting in opposition to its authority,” Ex parte Chambers, 898
S.W.2d 257, 259 (Tex. 1995) (orig. proceeding), and observed that contempt is a broad
and inherent power of a court, see Ex parte Browne, 543 S.W.2d 82, 86 (Tex. 1976)
(orig. proceeding).

                                           3
(Tex.App.--San Antonio 1998, no pet.); Metzger v. Sebek, 892 S.W.2d 20, 54

(Tex.App.--Houston [1st Dist.] 1994, writ denied). This is true even when the contempt

order is appealed along with an appealable judgment. In re Gonzalez, 993 S.W.2d 147,

157 (Tex.App.--San Antonio 1999, no pet.); Metzger, 892 S.W.2d at 54. Contempt

orders are reviewable by original proceedings. If a contempt order does not involve

confinement, it is reviewable by petition for writ of mandamus; if it involves confinement,

it is reviewable by petition for writ of habeas corpus. In re Long, 984 S.W.2d 623, 625

(Tex. 1999) (orig. proceeding) (per curiam).

       Petition for Writ of Mandamus

       Johnson filed a petition for writ of mandamus on August 19, 2011, while this

appeal involving the same issues was pending. In its order dismissing Johnson’s civil

suit, the trial court found Johnson did not obtain permission from a local administrative

judge before filing the suit, in violation of prefiling orders requiring that he do so. The

court also found Johnson “is in violation of a court order requiring that he pay sanctions

in the amount of $300.00 to the Texas Attorney General’s Office as a prerequisite to

filing. Thus, for all of the above reasons, it is FURTHER ORDERED that plaintiff is held

in CONTEMPT OF COURT pursuant to Tex. Civ. Prac. & Rem. Code § 11.101(b) and

shall be subject to the following penalty: $500.00 fine.”

       Johnson’s mandamus petition requests we direct the trial court, the Honorable

Edward Self, to rescind the order of contempt because Judge Self abused his discretion




                                               4
by holding Johnson in constructive, rather than direct, contempt without notice and a

hearing.3 We agree with Johnson’s contention.4

       Contemptuous conduct is direct contempt of court if it occurs within the presence

of the court and constructive contempt if it occurs outside the court’s presence. Ex parte

Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding). To constitute direct

contempt of court, “the court must have direct knowledge of the facts which constitute

contempt.” In re Bell, 894 S.W.2d 119, 127 (Tex. Spec. Ct. Rev. 1995). Because the

contemptuous actions have occurred in the presence of the court and the judge has

personal knowledge of the events, direct contempt may be punished in a summary

proceeding without additional notice to the contemnor or a hearing. Ex parte Daniels,

722 S.W.2d 707, 709 (Tex.Crim.App. 1987). But due process entitles a constructive

contemnor to notice and a hearing, to give the opportunity for defense or explanation of

the charges. See Ex parte Gordon, 584 S.W.2d at 688; Ex parte Werblud, 536 S.W.2d

542, 546 (Tex. 1976) (observing that constructive contempt entitles the contemnor to

more procedural safeguards than those afforded direct contemnors); see also Ex parte

       3
         Johnson also argues the trial court lacked jurisdiction over his civil suit because
he filed it in a county other than its mandatory venue. See Tex. Civ. Prac. & Rem. Code
Ann. § 15.019 (West 2010) (mandatory venue for inmate litigation). Johnson is
mistaken; the trial court had jurisdiction. See Johnson v. Cornelius, No. 07-11-00091-
CV, 2011 Tex.App. LEXIS 7762 (Tex.App.—Amarillo Sept. 28, 2011, no pet.) (mem.
op.).
       4
          The office of the Attorney General of Texas represents appellees Clark and
Jenkins, and filed a brief on their behalf in Johnson’s appeal of the trial court’s order.
Although the Attorney General elected not to file a response to Johnson’s mandamus
petition, its appellees’ brief addressed the merits of Johnson’s contentions regarding the
contempt finding. The arguments we have attributed to the Attorney General in our
discussion of Johnson’s mandamus petition are those asserted in its appellees’ brief.

                                             5
Krupps, 712 S.W.2d 144, 147 (Tex.Crim.App. 1986) (explaining that constructive

contempt adjudications satisfy due process if the contemnor is given notice, a hearing,

and the opportunity to obtain an attorney).          Due process requires that full and

unambiguous notice of an accusation of contempt be served on the alleged contemnor

in a motion for contempt, show cause order, or equivalent legal process stating how,

when, and by what means the party has been guilty of the alleged contempt. Ex parte

Chambers, 898 S.W.2d at 262.            Absent such notification, a contempt order for

constructive contempt is a nullity. Ex parte Blanchard, 736 S.W.2d 642, 643 (Tex.

1987).

         The violation of a court order generally is described as constructive, not direct,

contempt.     See, e.g., Ex parte Chambers, 898 S.W.2d at 259 (contempt alleged,

violation of written court order outside presence of court, was constructive contempt);

Ex parte Gordon, 584 S.W.2d at 688 (giving as example of constructive contempt “the

failure or refusal to comply with a valid court order”).

         Relying on the holding of Ex parte Aldridge, 334 S.W.2d 161 (Tex. 1959), that the

phrase “in the presence of the court” may extend beyond the judge’s immediate

presence, the Attorney General argues Johnson’s filing his civil suit in the 242nd District

Court without seeking local administrative judge approval and without paying $300 to

the Attorney General gave Judge Self, the presiding judge of that court, “direct

knowledge of the facts” supporting the finding of contempt. We cannot agree. Another

of the cases the Attorney General cites, Ex parte Powell, 883 S.W.2d 775 (Tex.App.—

Beaumont 1994, no writ), dealt with a contemnor who filed false documents with a court.

Based on Ex parte Ratliff, 3 S.W.2d 406 (Tex. 1928), the court in Ex parte Powell
                                              6
determined the contemptuous conduct was constructive in nature. Ex parte Powell, 883

S.W.2d at 777.

      We recognize that Judge Self punished Johnson for contempt not because his

civil suit pleadings were false but because he filed them without seeking local

administrative judge permission or paying the Attorney General the $300 ordered by the

Harris County district court. However, even if a litigant’s conduct of filing a pleading by

mail with the district clerk could be considered conduct occurring “in the presence of the

court,” a conclusion we need not reach,5 we are unable to see how Judge Self can be

said to have had “direct knowledge” of Johnson’s contemptuous actions. The clerk’s

record before us contradicts the notion that Judge Self had such direct knowledge. The

record in Johnson’s direct appeal contains the “Notice that Plaintiff is Vexatious and

Motion for Sanctions” filed in the civil suit by the Attorney General. Appended to that

pleading are copies of the 2006 judgment dismissing a suit Johnson filed in Harris

County and of a 2009 order issued in another Harris County suit Johnson filed. Both

those documents make reference to a 2004 order of the 133rd District Court of Harris

County, sanctioning Johnson $300 and ordering that he not file any lawsuit in Texas

without first producing a signed release showing that he has paid the $300 to the

Attorney General. Referring to the $300 sanction and another $100 sanction imposed

against Johnson in 2010, the Attorney General advised the court in this present suit,

“This Office has no indication that Mr. Johnson satisfied either of these sanctions, nor


      5
         In other contexts we have held that showing a paper was filed with a district
clerk is not sufficient to show that the trial judge was aware of its contents. In re
Chavez, 62 S.W.3d 225, 228 (Tex.App.—Amarillo 2001)(orig. proceeding).

                                            7
does Mr. Johnson allege in his petition that he paid those fines or that he obtained leave

from a judge to proceed with this suit as required by the vexatious litigant statute.” That

the Attorney General, by its notice, made the court aware it “ha[d] no indication”

Johnson had paid the sanctions did not give Judge Self “direct knowledge” of the facts

asserted in the Attorney General’s notice.6

       It might be said that Judge Self would have direct knowledge that Johnson did

not seek the permission of the local administrative judge, if Judge Self was the local

administrative judge. But Swisher County is served by two district courts, the 242nd

District Court and the 64th District Court. Tex. Gov’t Code Ann. §§ 24.166; 24.419

(West 2011). The record does not show which of the two judges was serving as

administrative judge when Johnson filed his suit, and we have no basis on which to take

judicial notice of that fact.   See Tex. R. Jud. Admin. 9 (West 2011) (providing for

selection of local administrative judge).

       The facts that Johnson filed his civil suit in Swisher County without paying the

sanctions required by the Harris County order and without seeking local administrative

judge permission, asserted in the Attorney General’s motion and found by the trial court

to support its contempt finding, were perhaps easily proven.          But, on this record,

establishing their existence required proof. “Constructive contempt refers to acts which




       6
           The Attorney General correctly notes section 11.101(b) of the Civil Practice and
Remedies Code subjects a person who disobeys an order under section 11.101(a) to
contempt of court. Tex. Civ. Prac. & Rem. Code Ann. § 11.101(b) (West 2010). The
statute, however, does not address whether such contempt is direct or constructive.


                                              8
require testimony or the production of evidence to establish their existence.” Ex parte

Daniels, 722 S.W.2d at 709.

      Johnson’s contemptuous conduct was constructive contempt of court, not direct.

Because the record demonstrates the contempt order was issued without notice or

hearing, it is void. Ex parte Blanchard, 736 S.W.2d at 643.

      As noted, mandamus is the proper mechanism to review a contempt order that

does not impose incarceration as a punishment. In re Long, 984 S.W.2d at 625; In re

Garza, 126 S.W.3d 268, 270 (Tex.App.--San Antonio 2003) (orig. proceeding).

Mandamus relief may be afforded where the trial court’s order is void, In re Acceptance

Ins. Co., 33 S.W.3d 443, 448 (Tex.App.—Fort Worth 2000) (orig. proceeding), or to

correct an abuse of discretion in imposing sanctions without notice or meaningful

hearing in violation of due process. See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997)

(court of appeals abused its discretion by issuing mandamus directing trial court to

vacate sanctions order where sanctioned counsel afforded due process by notice of trial

court's intent to consider sanctions and opportunity to respond).

      Accordingly, we will conditionally grant Johnson’s petition for writ of mandamus

seeking relief from the void contempt finding and fine.

                                           Conclusion

      The trial court’s order dismissing Johnson’s suit is affirmed, and his appeal of the

contempt order is dismissed for want of jurisdiction.      Johnson’s petition for writ of

mandamus directing the trial court to vacate its finding of contempt and imposition of a



                                            9
$500 fine is conditionally granted. The writ will issue only if the trial court does not

vacate its contempt finding and fine.7




                                                      James T. Campbell
                                                           Justice




      7
         On September 8, 2011, Johnson filed a motion entitled in part “Motion to Adhere
to Code [of] Judicial Conduct.” It does not seek relief beyond that already addressed in
this opinion. The motion is dismissed as moot.

                                          10
