Ex Parte Tucci

HECHT, Justice,

dissenting.

I agree that the district court’s temporary restraining orders impermissibly infringed upon relators’ First Amendment rights for the reasons explained by Chief Justice Phillips in his concurring opinion. I do not agree, however, that relators were entitled to violate those orders with impuni *65 ty without first exhausting all available efforts to have them set aside. Relators chose a course of action which they expected would land them in jail. I would not disappoint them; I would remand them into the custody of the Sheriff of Harris County until they served their full punishment. Accordingly, I dissent.

Relators hardly deny that they intentionally violated the district court’s orders. Their sole, and very feeble, disclaimer is that they could not be completely sure that their public protests in the vicinity of abortion clinics were “demonstrations” restricted by the orders. This belated disclaimer is belied by the fact that five of the seven relators were videotaped in front of clinics tearing up copies of court orders and proclaiming their intention to violate them. The record proves, in my view, that they were successful in accomplishing their stated intent.

Although the district court’s orders limiting relators’ freedom to protest are more restrictive than the First Amendment allows, they are not transparently invalid. Far to the contrary, as every Member of this Court recognizes, if the facts were slightly different, or even perhaps if the actual circumstances were more fully described in the record, the restrictions the district court imposed would be justified. Relators made no attempt to obtain review of the orders before they violated them, either by asking the trial court to dissolve them or by seeking relief from an appellate court. Relators do not contend that such attempts were impossible, futile, or frustrated. Indeed, there is ample evidence to the contrary. Plaintiffs and the district court were prepared to proceed on whatever schedule defendants elected. Relators, on the other hand, appeared more anxious to violate the district court’s orders than to contest them.

Despite relators’ flagrant disregard of arguably valid orders issued to preserve peace while allowing relators an opportunity to express their views in a public forum, the Court excuses their conduct entirely for the reason that the orders, after careful analysis, should have been narrower. The Court thus adopts a blanket exception to the rule — often referred to as the collateral bar rule — which ordinarily requires that judicial orders be obeyed until set aside. This exception allows a person to violate a court order and yet escape all punishment whenever it can be shown that the order excessively restricted the person’s constitutional free speech rights. This broad exception to the collateral bar rule presents too great an impediment to the orderly administration of justice which the rule is meant to protect, as this case illustrates.

The record before us reflects that on August 5,1992, the district court conducted a hearing on applications for injunctive relief in three lawsuits to restrict relators’ public protests of abortion clinics in Houston planned to occur at the- time of the Republican National Convention. 1 The convention was to begin thirteen days later, on August 17, although some of the participants were meeting prior to that date. At the time of the hearing, plaintiffs had already notified several of the defendants of the suits, including Rescue America, Operation Rescue (through its California and Houston offices), and three of the relators (Tucci, Terry and Jewitt). An attorney appeared on behalf of Rescue America at the hearing. 2 The hearing was devoted to argument of counsel representing plaintiffs and some of the defendants concerning whether any relief should be granted, and it lasted the entire day. The district court inquired of the parties how soon the temporary injunction should be heard if a temporary restraining order issued. Plaintiffs indicated that they were willing to proceed promptly with a hearing on their request for a temporary or permanent injunction, if *66 defendants were ready. Plaintiffs suggested August 12, a week later, as a possible date for a hearing that would give defendants time to prepare. Defendants' counsel indicated that because of deadlines in other cases, he would prefer to delay the hearing until August 13. On August 6, the district court issued a temporary restraining order in each case and set the hearing on the applications for temporary injunction for August 12. 3

Our record contains only two of the court’s orders. 4 Both prohibited demonstrating within 100 feet of plaintiffs’ property. One of the orders also prohibited demonstrating within a defined area. 5 Each of the relators was found to have knowingly violated at least one of the orders by demonstrating within a restricted area. There is no doubt that relators were aware of the orders. Tucci, Benham, Ma-honey, Jewitt, and Wright were videotaped tearing up copies of the orders and announcing their intention to violate them. A constable actually read the order on the street, twice, in the presence of defendants Benham, Mahoney, Jewitt and Wright. The district court held each relator in contempt and as punishment ordered them each to pay a $500 fine and to be jailed for up to six months or until they purged themselves of contempt by paying the fine and swearing that they would abide with the court’s orders. 6 Relators refused to pay their fines and were incarcerated. They petitioned the court of appeals for relief by habeas corpus, which that court denied. They then filed their petitions in this Court.

Habeas corpus is a collateral attack on a contempt judgment. 7 It is used to review whether the relator has been unlawfully imprisoned. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979); Ex parte Ellis, 37 Tex.Crim. 539 , 40 S.W. 275, 276 (1897). Habeas corpus has also been used to challenge the enforceability of the order, the violation of which is the basis for contempt. 8 The cases have not been entirely *67 consistent as to when this broader relief by habeas corpus is permitted. Some have taken an expansive view, allowing a collateral attack of any injunction which violates constitutional free speech rights. See, e.g., Tucker, 220 S.W. at 76; Henry, 215 S.W.2d at 596. Other cases have espoused a stricter view, limited to determining the trial court’s jurisdiction. See, e.g., George, 364 S.W.2d 189 ; Rhodes, 352 S.W.2d 249, 250-51 ; Lipscomb, 239 S.W. 1101, 1103-04 . Some cases restrict their consideration of the lower court’s jurisdiction to subject matter and personal jurisdiction. See, e.g., Ex parte Kimberlin, 126 Tex. 60 , 86 S.W.2d 717, 720 (1935) (injunction against enforcement of allegedly unconstitutional tax law, even if in error on the law and the facts, was within the trial court’s jurisdiction). Others, however, rely upon a broader concept of “jurisdiction,” using a three-prong test to determine whether contempt was justified, inquiring into: (1) jurisdiction of the subject-matter; (2) jurisdiction of the person; and (3) authority of the court to render the particular judgment. Ex parte Duncan, 127 Tex. 507 , 95 S.W.2d 675, 679 (1936), citing Ex parte Britton, 127 Tex. 85 , 92 S.W.2d 224 (1936); Tinsley, 40 S.W. at 307 (if court is without jurisdiction of the subject-matter, or of the parties, or lacks power to make the order in the particular case, it cannot punish for contempt or disobedience of such order). Still other cases have concluded that the touchstone is whether relator was afforded due process. See, e.g., Ex parte Genecov, 143 Tex. 476 , 186 S.W.2d 225 (Tex.1945), cert, denied, 326 U.S. 733 , 66 S.Ct. 41 , 90 L.Ed. 436 (1945) (principles of due process “included” the question of the trial court’s jurisdiction to issue the order); Lipscomb, 239 S.W. at 1104 (issue is whether a citizen is restrained of his liberty without due process, “by which is meant his restraint is the result of a hearing before a competent tribunal, having jurisdiction of the subject matter, after notice, and an opportunity to be heard”). One case pragmatically combined the standards, concluding that a judgment may be attacked because of a “lack of jurisdiction in the court to render it, or because the contemner was deprived of his liberty without due process of law”. Ex parte Helms, 152 Tex. 480 , 259 S.W.2d 184, 186 (1963).

Although various standards have been used to judge the enforceability of the order relator violated, the cases consistently recognize that the review afforded by habe-as corpus is a collateral attack upon a judgment which should not be permitted in every instance. This is the basic premise of the collateral bar rule. See, e.g., Richard E. Labunski, The “Collateral Bar” *68 Rule and the First Amendment: The Constitutionality of Enforcing Unconstitutional Orders, 37 Am.U.L.Rev. 323 (1988); Joel L. Selig, Regulation of Street Demonstrations by Injunction: Constitutional Limitations on the Collateral Bar Rule in Prosecutions for Contempt, 4 Harv.Civ. Rights-Civ.Lib.L.Rev. 135, 141 (1968); see also Walker v. City of Birmingham, 388 U.S. 307 , 87 S.Ct. 1824 , 18 L.Ed.2d 1210 (1967). The rule, in its most general terms, was expressed by the United States Supreme Court in Howat v. Kansas, 258 U.S. 181, 189-90 , 42 S.Ct. 277, 280-81 , 66 L.Ed. 550 (1926): “An injunction duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them however erroneous the action of the court may be.” Essentially the same rule was articulated in Ex parte Warfield, 40 Tex.Crim. 413 , 50 S.W. 933, 934 (1899):

[wjherever the court has authority to grant the writ of injunction, no matter what irregularities may attend the granting thereof, or however erroneously the court may have acted in granting the same, as long as the injunction exists, undissolved, it must be obeyed, and for a violation thereof the party will be held in contempt. If, however, the court has no jurisdiction over the subject-matter involved, or if it has exceeded its power, by granting an injunction in a matter beyond its jurisdiction, the injunction will be treated as absolutely void, and defendants in such case cannot be punished for contempt for its alleged violation.

The rule has been used to bar collateral attacks even when the challenge is to the court's jurisdiction and the constitutionality of its order. See Wright, Federal Practice and Procedure: Criminal 2nd § 702. See also Maness v. Meyers, 419 U.S. 449 , 95 S.Ct. 584 , 42 L.Ed.2d 574 (1975); Walker v. City of Birmingham, 388 U.S. 307 , 87 S.Ct. 1824 , 18 L.Ed.2d 1210 (1967); United States v. United Mine Workers, 330 U.S. 258 , 67 S.Ct. 677 , 91 L.Ed. 884 (1947). Several Texas contempt cases, however, do not address the principles of the collateral bar rule — only the merits of relators’ free speech claims. See Henry, Tucker, McCormick, and Foster (discharging rela-tors), and Pierce and Thomas (refusing to discharge relators).

The collateral bar doctrine is based on: a belief that in the fair administration of justice no man can be a judge in his own case, however exalted his station, however righteous his motives, irrespective of his race, color, politics, or religion.... One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedoms.

Walker v. City of Birmingham, 388 U.S. 307, 320-21 , 87 S.Ct. 1824, 1832 , 18 L.Ed.2d 1210 (1967).

Walker upheld a contempt citation for violation of an ex parte temporary restraining order which ordered a group of civil rights protesters to obey an ordinance which required that a permit be obtained in advance of any parade or march. Contem-nors argued that the temporary restraining order violated the First Amendment, and the Supreme Court acknowledged that there were "substantial constitutional questions” about the validity of the order. Id. Even the ordinance which the order enforced was later determined to be unconstitutional. Nevertheless, the Court held that in appeal from a judgment of contempt, the collateral bar rule precluded contemnors from challenging the constitutionality of the order they had violated.

The collateral bar rule cannot be applied without exception. For example, the rule is generally deemed to apply only in “criminal” or “punitive” contempt actions, as opposed to “civil” actions. “Civil” contempt is used to procure future compliance with an order. If the order is improper, it would be purposeless to insist upon continued compliance. Thus, review of the propriety of the order should not be barred. 9 “Crimi *69 nal” contempt punishes a violation of an order. When violation of an order justifies punishment even if the order was improper in some respect, the collateral bar rule precludes review of the order.

Other exceptions may be constitutionally required. A collateral challenge may be allowed, for example, in a case where there was no opportunity for effective review of the order before it was violated. See Walker, 388 U.S. at 315 n. 6, 87 S.Ct. at 1829 n. 6 (distinguishing In re Green, 369 U.S. 689 , 82 S.Ct. 1114, 8 L.Ed.2d 198 (1962)); Wright, at § 702. As Walker suggests, a case may be in a “different constitutional posture” if petitioners attempted to challenge the injunction in state courts before violating it, but were met with delay or frustration of their constitutional claims. 388 U.S. at 318 , 87 S.Ct. at 1830 . See also United States v. Ryan, 402 U.S. 530, 532, n. 4 , 91 S.Ct. 1580, 1582, n. 4 , 29 L.Ed.2d 85 (1971) (proceedings to enforce a burdensome or otherwise objectionable jury subpoena). Another exception may apply if an order is “transparently invalid.” See Martin v. Wilks, 490 U.S. 755 , 790 n. 28, 109 S.Ct. 2180, 2199 , 104 L.Ed.2d 835 (1989) (Stevens, J., dissenting); Matter of Providence Journal Co., 820 F.2d 1342 (1st Cir.1986), ce rt. dism’d, 485 U.S. 693 , 108 S.Ct. 1502 , 99 L.Ed.2d 785 Wright § 702 n. 19. This rule may account for several of the Texas free speech cases. Walker also implies, to some extent, that too sudden a turn on the procedural highway might run afoul of additional constitutional guarantees, if, e.g., a rule in contravention of earlier practice is suddenly adopted without notice. 10 Other exceptions might arise from state law. There may be cases in which the order sought to be enforced is so patently outside the court’s authority to act, under any set of facts, that a collateral attack is permitted. See, e.g., Ex parte Castro, 115 Tex. 77 , 273 S.W. 795 (1925) (order prohibiting remarriage within one year of original divorce was without authority, and therefore void); Warfield, 50 S.W. at 936-37 (indicating that collateral attack is appropriate only if it may at once be perceived that ■ no condition of facts could confer jurisdiction).

The reasons for the collateral bar rule, however, are as compelling as the reasons for the exceptions. As Walker eloquently expresses, the idea that a person may intentionally violate a court order without consequence, even if there are grounds for reversing that order, strikes at fundamental notions of order in a free society. This is no less true when constitutional rights are in issue. A blanket exception to the rule whenever free speech rights are claimed to be infringed makes it very difficult for trial courts to enforce order in volatile situations, such as the one which is the setting for the present proceedings.

The circumstances of this case do not fall within any warranted exception to the collateral bar rule. It is true that relators were afforded only a short time in which to present their defense to plaintiffs’ suits and, if necessary, to seek relief from the court of appeals. The temporary restraining orders were issued less than a week before the first planned protests. The timing of the protests — to coincide with the Republican National Convention — was integrally linked to their content. In some cases, the delay occasioned by undertaking a direct attack on an order could potentially deprive the party of his opportunity to speak without any effective remedy. 11 *70 This is not such a case. Relators could have requested a full evidentiary hearing; they did not. After relators received notice that the orders had issued, they made no serious attempt to have them dissolved or modified. They made no attempt to seek review by appeal. 12 Relators, in fact, were uninterested in seeking review of the orders, as evidenced by their declared intent to violate the orders without regard to legal process.

Relators’ circumstances are similar to those we described in a habeas corpus case arising over a half century ago:

[I]nstead of moving to modify or dissolve the [order], and instead of seeking to have a hearing on same, relator appears to have fully acquiesced in the action of the court until [the time at which he violated the order]. If the restraining order was too broad and included matters of doubtful validity, it was clearly the duty of relator to obey same and to seek a modification or dissolution.

Ex parte Kimberlin, 86 S.W.2d at 721 . Relators’ free speech claims in this proceeding should be precluded by the collateral bar rule. 13

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The cases before the district court required it to balance conflicting claims of right. To protect the rights of one group, the court was constrained to limit the rights of the other. The district court may not have struck the precise balance required by the First Amendment, but it attempted to do so, it afforded relators every opportunity to challenge its decision, and that decision was flawed only because it was too restrictive and not because no restrictions were justified. In these circumstances, relators should not be allowed to publicly spurn the court’s orders and escape all punishment.

I would deny relators relief and remand them to the custody of the sheriff.

ENOCH, J., joins in this Dissenting Opinion.

. The three lawsuits were Planned Parenthood of Houston, et al., v. Operation Rescu e—Nation al, et al., Cause No. 92-34008, Houston Women 's Clinic, Inc., et al., v. Operation Rescue — Nation al, et al., Cause No. 92-34123, and Jerry Edwards, M.D., et al. v. Operation Rescu e—Nation al, et al., Cause No. 92-34158, consolidated in the 190th District Court of Harris County, Texas.

. Other defendants, not parties to this habeas proceeding, appeared at the hearing by counsel or pro se.

. The August 12 hearing was delayed in part because by then plaintiffs had already moved to hold certain relators in contempt based on events of August 10, and in part at the request of defendants’ counsel. The hearing was never conducted.

. We have the temporary restraining orders issued in Cause No. 92-34008 and Cause No. 92-34123.

. The restricted area was described as bounded by the west side of that part of Fannin street which is west of Planned Parenthood’s facility and construction side and one intervenor’s property; the east side of that part of San Jacin-to Street that is east of Planned Parenthood's Berry Street parking lot and a second interve-nor’s property; and any portion of the sidewalks or the street along this one block of Berry Street. The boundaries were shown in an attached exhibit.

. The trial court required that the fines either be paid or "served out" at the rate of $5.00 per day as one condition for purging the contempt. The other conditions varied somewhat. Tucci was to swear that he would obey the court’s lawful orders; Terry and Slovenic were to swear to obey the temporary restraining order; and Ben-ham, Mahoney, Jewitt, and Wright were to announce in court their intentions to abide by the temporary restraining order. But while the conditions for purging contempt were similar, the consequences varied: Tucci, Terry, and Slo-venic were ordered jailed until they purged themselves of contempt, but "in no event” for more than six months; the sheriff was to release them when they served their "punishment period” or when they purged themselves of contempt. In contrast, the sheriff was ordered to jail Benham, Mahoney, Jewitt and Wright until they served their punishment periods and they purged themselves of contempt.

. As a collateral attack on a contempt judgment, habeas corpus permits only a limited scope of review. Limited as it is, habeas corpus has been held to be the only remedy available to review an individual’s incarceration for contempt. Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967) (habeas corpus allowed because no remedy by appeal); Wagner v. Warnasch, 156 Tex. 334 , 295 S.W.2d 890, 893 (Tex.1956) (challenge to incarceration for contempt must be by habeas corpus). The rule that no appeal will lie from a judgment of contempt is dubious at best, but firmly entrenched and seldom challenged. This limitation has undoubtedly served to shape the Court’s development of the law of contempt in habeas cases.

. See, e.g., Ex parte Lesher, 651 S.W.2d 734 (Tex. 1983) (temporary restraining order without required bond unenforceable); Ex parte Edmonds, 383 S.W.2d 579 (Tex.1964) (no jurisdiction to enjoin entry on condemned land); Ex parte George, 364 S.W.2d 189 (Tex.1963) (injunction preempted by federal labor law); Ex parte Rhodes, 163 Tex. 31 , 352 S.W.2d 249 (1962) (court had power to order that child remain in county); Ex parte Pierce, 161 Tex. 524 , 342 *67 S.W.2d 424 (1961), cert. denied, 366 U.S. 928 , 81 S.Ct. 1650 , 6 L.Ed.2d 388 (1961) (order barring blocking street upheld); Ex parte Dilley, 160 Tex. 522 , 334 S.W.2d 425 (1960) (injunction preempted by federal labor law); Ex parte Twedell, 158 Tex. 214 , 309 S.W.2d 834 (1958) (injunction preempted by federal labor law); Ex parte Lillard, 159 Tex. 18 , 314 S.W.2d 800 (1958) (custody order issued without jurisdiction); Ex parte Henry, 147 Tex. 315 , 215 S.W.2d 588 (1948) (injunction against constitutionally-protected picketing); Ex parte Thomas, 141 Tex. 591 , 174 S.W.2d 958 (1943), reversed sub nom. Thomas v. Collins, 323 U.S. 516 , 65 S.Ct. 315 , 89 L.Ed. 430 (1945) (statute and injunction barring union organizer from soliciting union members without registering); Ex parte Barrett, 120 Tex. 311 , 37 S.W.2d 741 (1931) (injunction against holding an election was outside the general scope of judicial power); Ex parte Castro, 115 Tex. 77 , 273 S.W. 795 (1925) (order prohibiting remarriage within one year of divorce was without authority); Ex parte Lipscomb, 111 Tex. 409 , 239 S.W. 1101 (1922) (witness jailed over his claim of attorney-client privilege was not enti-tied to review on the merits); Ex parte Tucker, 110 Tex. 335 , 220 S.W. 75 (1920) (injunction attempting to control free speech was beyond the power of the court to issue). See also Ex parte McCormick, 129 Tex.Crim. 457 , 88 S.W.2d 104 (1935) ("gag" orders); Ex parte Foster, 44 Tex.Crim. 423 , 71 S.W. 593 (1903) (same); Ex parte Warfield, 40 Tex.Crim. 413 , 50 S.W. 933, 934 (Tex.Crim.App.1899) (equitable jurisdiction to issue injunction); Ex parte Tinsley, 37 Tex.Crim. 517 , 40 S.W. 306, 307 (1897), aff’d sub nom. Tinsley v. Anderson, 171 U.S. 101 , 18 S.Ct. 805 , 43 L.Ed. 91 (1898) (where the court is without jurisdiction of the subject-matter, or of the parties, or lacks power to make the order in the particular case, it cannot punish for contempt or disobedience of such order); Ex parte Ellis, 37 Tex.Crim. 539 , 40 S.W. 275, 276 (1897) (questioning authority to issue alimony and child support order, but discharging relator on other grounds). Cf. Ex parte Hall, 854 S.W.2d 656 (Tex.1993) (underlying temporary order based upon a premarital contract, not interlocutory support criteria, was unenforceable by con *68 tempt due to constitutional prohibition against imprisonment for debt).

. See Wright, at § 702. "Civil” contempt, instead of imposing a fixed sentence for past con *69 tempt, seeks to procure compliance by, for example, imposing indefinite confinement until the contemnor purges the contempt. Ex parte Werblud, 536 S.W.2d 542, 545 (Tex.1976); Wright, § 704.

. The Court observed: "We do not deal here, therefore, with a situation where a state court has followed a regular past practice of entertaining claims in a given procedural mode, and without notice has abandoned that practice to the detriment of a litigant who finds his claim foreclosed by a novel procedural bar. This is not a case where a procedural requirement has been sprung upon an unwary litigant when pri- or practice did not give him fair notice of its existence." Walker, 388 U.S. at 319 , 87 S.Ct. at 1831 (citations omitted).

. See Joel L. Selig, Regulation of Street Demonstrations by Injunction: Constitutional Limitations on the Collateral Bar Rule in Prosecutions for Contempt, 4 Harv.Civ.Rights-Civ.Lib.L.Rev. 135, 141 (1968); Note, Defiance of Unlawful Authority, 83 HarvJL.Rev. 626, 635 (1970); see also Walker, 388 U.S. at 349 , 87 S.Ct. at 1847 *70 (Brennan, J., dissenting) ("[t]he ability to exercise protected protest at a time when such exercise would be effective must be as protected as the beliefs themselves”).

. See generally William Frank Carroll, Review of Temporary Restraining Orders in Texas — An Appealing Prospect, 46 Tex.Bar Journal 1406 (1983). See also Walker, 388 U.S. at 318-19 , 87 S.Ct. at 1830-31 ; see also Richard E. Labunski, The “Collateral Bar" Rule and the First Amendment: The Constitutionality of Enforcing Unconstitutional Orders, 37 Am.U.L.Rev. 323, 374-77 (1988). Cf. In re Providence Journal Co., 820 F.2d 1354 , 1355 (1st Cir.1987) (en banc) (parties wishing to challenge "transparently invalid” court orders collaterally were required to first make a good faith effort to seek emergency relief from appellate court, if available), modifying 820 F.2d 1342 (1st Cir.1986), cert. dism'd, 485 U.S. 693 , 108 S.Ct. 1502 , 99 L.Ed.2d 785 (1988).

. Some federal cases suggest that even if a contempt citation is not set aside by a reviewing court because the order violated is invalid, the court issuing the contempt judgment should have the opportunity to reassess whether punishment should still be imposed, given the invalidity of the order. See United States v. Dickinson, 465 F.2d 496, 513-14 (1972) (vacating and remanding to the trial court to allow it to decide whether the contempt judgment or punishment would still be deemed appropriate), citing Donovan v. City of Dallas, 377 U.S. 408, 414 , 84 S.Ct. 1579, 1583 , 12 L.Ed.2d 409 (1964), and Dunn v. United States, 388 F.2d 511, 513 (10th Cir.1968). This practice allows greater flexibility in applying the collateral bar rule. Our habeas corpus procedure does not permit this practice, however.