Ex Parte Krupps

CLINTON, Judge,

dissenting.

Since they are unique the problems in this cause may not be resolved routinely by trying to find the right light of classification of kind and nature of contempt to focus on the several scenarios that one or more applicants played out an afternoon and some again the following morning. The notion seems to be that once the proper light is turned on given active and passive conduct, one will know he is seeing a particular type of contumacious conduct and then is enabled to critique it according to its narrow contextual classification and surrounding traditional trappings. Sometimes, however, a problem defies classification by label, and thus may not be resolved by rote. Of first impression in Texas, this cause surely presents just such an occasion.

At the threshold it is observed that although some applicants did not rise when respondent judge left the courtroom the first afternoon, that particular “act” is not in issue here, for the judge did not remotely suggest that any applicant was held in contempt for that behavior. Thus, we are not presented with the bare question of whether just an “act” of not rising when a bailiff intones “all rise” is in itself “an affront to the dignity of the court or disruptive conduct in the courtroom,” Ex parte Gordon, 584 S.W.2d, 686, 688 (Tex.1979).

Here, however, the initial failure to rise triggered what followed, commencing with a prompt admonition from the bailiff, response of some applicants and the bailiff’s reporting those developments to respondent judge. Thus the stage was set for the players, but a script had not yet been written. And from the record before this Court we are unable to identify all the players, to determine their respective role or how each played his own. There are serious factual conflicts and some sensitive matters lurking about in this particular cause — not the least of which is an asserted religious belief.

Nevertheless, unless performing an act of respect to the court is to be at will of every person in the courtroom according to his own lights, this Court must require of applicants that which we demand in our own courtroom or recognize a justification for not rising the next morning.

Since the statutes do not define contempt of court, except in certain instances, Texas courts are relegated to the common law in *154 determining meaning, scope and extent of the doctrine, in the light of our constitutional safeguards and the spirit and genius of our institutions. As pertinent here, one is guilty of contempt when one’s conduct is an affront to the dignity of the court or is disruptive in the courtroom, Ex parte Gordon, supra; Ex parte Landry, 65 Tex.Cr.R. 440 , 144 S.W. 962 (1912); Ex parte Wolters, 64 Tex.Cr.R. 238 , 144 S.W. 531 (1911), or “tends to bring the authority and administration of the law into disrespect or disregard ... or to impede, embarrass, or obstruct the court in the discharge of its duties.” 13 Tex.Jur.3rd 182, Contempt § 1; Ex parte Norton, 144 Tex. 445 , 191 S.W.2d 713, 714 (1946).

Article 1911a, V.A.C.S., provides that a court “has the duty to require that proceedings shall be conducted with dignity ...” Under a statute granting power to punish for contempt “misbehavior [that] obstruct[s] the administration of justice,” Federal courts have found that because “the traditional rising in unison of persons present in a court can reasonably be thought to contribute to the functioning of the court ..., the court may require such rising, in the interest of facilitating its functions” and, therefore, may enforce that requirement — though against a claim of religious freedom vouchsafed by the First Amendment they lack unanimity. United States ex rel. Robson v. Malone, 412 F.2d 848, 850 (CA7 1969); In re Chase, 468 F.2d 128, 133 (CA7 1972); see United States v. Seale, 461 F.2d 345, 371 (CA7 1972) and Comstock v. United States, 419 F.2d 1128 (CA9 1969). Contra: United States v. Snider, 502 F.2d 645, 657-660 (CA4 1974); see also In re Dellinger, 461 F.2d 389, 401 (CA7 1972).

Pointing out that acts of applicants occurred in the presence of the court, respondent judge argues from Ex parte Norton, 610 S.W.2d 512, 513 (Tex.Cr.App.1981) and Ex parte Supercinski, 561 S.W.2d 482, 483 (Tex.Cr.App.1977), that he was empowered summarily and without a hearing to hold applicants in contempt. The rationale is that since the court sees or hears actual misbehavior in the courtroom the judge “knows of all the facts which constitute the contempt,” Supercinski, supra; Ex parte Ratliff, 117 Tex. 325 , 3 S.W.2d 406 (1928).

Although in his brief respondent judge insists that “in the direct contempt proceedings before [him], no such consitutional rights were asserted,” p. 7, “in a reasonable and intelligent manner,” p. 9, the majority has found otherwise; it says that he “offered applicants, through Krupp, the alternative of remaining outside the courtroom until court had convened.” But Judge Campbell correctly points out, “The record is silent as to whether Krupps conveyed any message from the judge to any of the other six applicants.”

Ordinarily purpose or intent is irrelevant in determining whether an offensive act is contemptuous; the nature of the act itself is determinative. 13 Tex.Jur.3rd 182, Contempt § 1. The judge may convict and punish summarily on his own personal knowledge and observations taking into consideration “all the circumstances of aggravation, provocation, or mitigation,” 13 Tex.Jur.3rd 248, Contempt § 50. However, where — as the majority has found here — a judge is aware that an alleged contemnor claims his quiet and peaceful behavior is protected by the First Amendment or Article I, § 6 of our Bill of Rights, the court does not “know of all the facts.” Requisites of due process and due course of law dictate a hearing be held to determine whether that claim is founded on a sincerely held religious belief, and to what extent it may excuse otherwise contemptuous behavior or mitigate against punishment. See United States v. Snider, supra, 502 F.2d at 657-658 . 1

*155 Accordingly, I would vacate the commitment orders without prejudice to respondent’s holding a proper hearing should he be advised to pursue the matter of contempt.

. Holding such a hearing might then present “a very serious constitutional question ... not unlike that in West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943)," viz:

“It is not easy to distinguish the rising requirement from the flag salute. Both seem to require affirmation, if not a belief, at least of ‘an attitude of mind.' 319 U.S. at 633 , 63 S.Ct. [at 1183].”

*155 Snider, supra, at 660 . That the majority may find it "difficult to understand what religious tenet was being expressed" when applicants "chose to remain and refused to rise” will not justify a denial of due process and due course of law by refusing each an opportunity to explain "an attitude of mind," Ibid.