Petition for Writ of Certiorari — Krupps v. Texas

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86-59) | FEY

Supreme Court of the United States

OcTOBER TERM, 1986 |

CHARLES EDWARD Krupps, HAROLD O. EDGINGTON,

HowarD D. MATHEWS, SR., VINCENT ROSE, LATTIE JO

DARBY ROSE, ROSIE HENLEY, AND JOHN ELLIS HENLEY,

Petitioners.

Vv.

STATE OF TEXAS,

Respondent.

On Petition For Writ of Certiorari

To The Texas Court Of Criminal Appeals

PETITION FOR WRIT OF CERTIORARI

JAMES C. HARRINGTON

Counsel of Record

TEXAS CIVIL LIBERTIES

UNION FOUNDATION, INC.

1611 East First Street

Austin, Texas 78702-4455

(512) 477-5849

Ropric B. SCHOEN

Texas Tech University

School of Law

Lubbock, Texas 79409

October 9, 1986

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

Whether a trial judge may constitutionally imprison

a defendant and his supporters who, because of sin-

cere religious beliefs, peacefully decline to stand when

the judge enters or leaves the courtroom but who

otherwise participate in the trial proceedings without

obstruction and without lack of respect or deference?

Whether a trial judge may constitutionally imprison

a defendant and his supporters who peacefully decline

to engage in symbolic speech and fail to stand when

the judge enters or leaves the courtroom but who

otherwise participate in the trial proceedings with re-

spect?

Whether the Due Process Clause of the Fourteenth

Amendment prohibits a trial judge from summarily

imprisoning for thirty days a defendant and his sup-

porters who peacefully decline to rise for the judge

but who otherwise participate in the proceedings with-

out obstruction or lack of respect?

TABLE OF CONTENTS

Page

RPCMEROUNS TRIM on cscskcsccecicncseccsentesmiceannuices i

ee CP CI: .,..,,.. scsionsdaisanisveiedicenadibinaiammanmet ii

ee CF DCI ni wich csc ttnKisdeies iii

n= a 1

ERUIIININN ci:c.cccxecinsicusseenats caiasterectencts ellie ieaanilianatieabtaatiale Cia 1

CONSTITUTIONAL PROVISIONS INVOLVED ...........cc000 2

Bravest Or TR CAR caidicsdatscticvtstitisicie 2

REASONS FOR GRANTING THE WRIT .............secceeees 7

I. THE FIRST AMENDMENT PROTECTS

PETITIONERS FROM BEING JAILED

FOR PEACEFULLY DECLINING TO RISE

WHEN THE JUDGE ENTERS OR

LEAVES THE COURTROOM ..................... 8

A. Standards for Evaluating a Free Exercise

CARN dunia cincccicadccermtacunibie eine nea 8

B. Applying the Free Exercise Test .......... 9

C. Petitioners Were Also Protected by the

First Amendment from Comr. led Sym-

CS CI | siiicnssenicsconconnsssnsuniiiteesithiancieasiens 14

II. THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT PROTECTS

PETITIONERS FROM BEING SUMMAR-

ILY JAILED FOR THIRTY DAYS ........... 18

eR CORED SS an eS NT EO 25

APPENDIX A (OPINION OF THE TEXAS COURT OF

CRIMINAL APPEALS) ..........cccccssscceceees la

APPENDIX B (CONTEMPT ORDER OF JEFFERSON

COUNTY COURT AT LAW) ..........-0000 39a

_ prt EA AL A th Ne IK Nil eS kt Bisa.

iii

TABLE OF AUTHORITIES

CASES: Page

Abington School District v. Schempp, 374 U.S. 203

RETR ED ROSIE oe ORT SS oe 12

Anderson v. Dunn, 19 U.S. (6 Wheat.) 204

aa lida cchdeimnaeesvenevergecners 19

Aptheker v. Secretary of State, 378 U.S. 500

Ce as a scsenennsoreves 12

Bloom v. Illinois, 391 U.S. 194 (1968)... 19

Bowen v. Roy, 106 S.Ct. 2147 (1986)... 13

Bowers v. Hardwick, 106 S.Ct. 2841 (1986) _....... 18

Coker v. Georgia, 433 U.S. 584 (1977) ......... eee 18

Commonwealth v. Cameron, 462 A.2d 649 (Pa.

SESE TERIOR AE AE 24

Comstock v. United States, 419 F.2d 1128 (9th Cir.

aa ate iid hid enh esibseebacaieeoesescoeses 21

Cooke v. United States, 267 U.S. 517 (1925) ....... 19, 20

Ex parte Hudgings, 249 U.S. 378 (1919)... 21

Gillette v. United States, 401 U.S. 487 (1971) ....... 9, 14

Goldman v. Weinberger, 106 S.Ct. 1310 (1986)

BOE SSR ESE RES Sd OR oO 9, 10, 13

Harris v. United States, 382 U.S. 162 (1965) ..... 20

In re Chase, 468 F.2d 128 (7th Cir. 1972) ... 17, 21, 22

In re Dellinger, 461 F.2d 389 (7th Cir. 1972) _.... 24

In re Gustafson, 650 F.2d 1017 (9th Cir. 1981) 24

In re McConnell, 370 U.S. 230 (1962) .................. 20, 21

In re Michael, 326 U.S. 224 (1945) _........... lecbiiiaetus 21

In re Oliver, 333 U.S. 257 (1948) ............cccccceeeees 19, 21

Jacobson v. Massachusetts, 197 U.S. 11 (1905)... 14

Nye v. United States, 313 U.S. 33 (1980) ........... 21

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

as sueneppnnepeccos 12

Sherbert v. Verner, 374 U.S. 398 (1963) ............. 8

Taylor v. Hayes, 418 U.S. 488 (19738) ou... 19

Table of Authorities Continued

Page

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969) ............ 12

Thomas v. Review Board, 450 U.S. 707 (1981)... 8

United States v. Abascal, 509 F.2d 752 (9th Cir.)

cert. denied, 422 U.S. 1027 (1975) ............000 23, 24

United States v. Flynt, 756 F.2d 1352 (9th Cir.

IIE isishccineacistinjalaicciat tached eden hg a a, 24

United States v. Lee, 455 U.S. 252 (1982) ............. 9, 14

Umited States v. Snider, 502 F.2d 645 (4th Cir.

RPT atnkerveisiteaesiacabs sania sDasinegeiiusdieisets 17, 22, 28

United States v. Wilson, 421 U.S. 309 (1975) _.... 19

West Virginia State Board of Education v. Bar-

CERR, BED Ci. GO TI associ eniad cacccscncsness passim

Wisconsin v. Yoder, 406 U.S. 205 (1972) .............. 8, 14

Wooley v. Maynard, 430 U.S. 705 (1977) © ........... 16

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

CHARLES EDWARD KRUPPS, HAROLD O. EDGINGTON,

HowarRD D. MATHEWS, SR., VINCENT ROSE, LATTIE

JO DARBY ROSE, ROSIE HENLEY, AND JOHN ELLIS

HENLEY,

Petitioners.

On Petition For Writ of Certiorari to the Texas

Court of Criminal Appeals

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

This Petition seeks review of a divided decision of

the Texas Court of Criminal Appeals, which is re-

ported at 712 S.W.2d 144 (Tex. Crin.. App. 1986) and

reprinted as Appendix A.

The decision and judgment of the Court of Criminal

Appeals was entered on June 11, 1986. Subsequently,

this Court granted an extension until October 9, 1986

to file this Petition sub nom. Lattie Jo Rose.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(3). Petitioners urge that the Texas

court’s use of criminal contempt power in this case

is repugnant to the First and Fourteenth Amend-

ments.

Further, the Texas Court of Criminal Appeals, a

court of last resort, has decided a federal questior in

a way in conflict with the decisions of different fed-

eral courts of appeals (the Fourth, Ninth, and Seventh

Circuits); the issues decided below are important ques-

tions of federal law which have not been, but should

be, decided by this Court, especially in view of conflict

of the Texas appellate ruling with applicable decisions

of this Court. Rules of the Supreme Court of the

United States, Rule 17.1(b) and (ec).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the free-

dom of speech ....

The Fourteenth Amendment:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property without due process of law ....

STATEMENT OF THE CASE

This case involves five men and two women who

were sentenced to thirty days in jail for contempt of

court for refusing, because of their sincere religious

beliefs, to rise when the trial judge entered the court-

room.

le ea NA SOR i ec al el

The seven Petitioners were held in contempt on the

second day of a trial, for which one of them, Charles

Edward Krupps, was charged with the misdemeanor

offense of driving without proof of liability insurance,

punishable by a minimum fine of $75. Tex. Ann. Civ.

Stat. art. 6701h, § 1C (Vernon Supp. 1986).

Petitioners were summarily sentenced to jail with-

out an attorney and without a hearing. The confine-

ment order is reprinted in Appendix B.

Before being released from jail on bond, six

Petitioners spent fifteen days in confinement; fifteen

days remain io be served. One Petitioner still has all

thirty days to serve. Three Petitioners are in their

early to mid-sixties. Some have minor children for

whom they could not care while they were jailed, and

one son was ordered imprisoned with his mother.

When they were confined, Petitioners were subjected

to the humiliating jail procedures of being stripped,

searched, and imprisoned in cells with persons charged

with criminal offenses.

Petitioners sought a writ of habeas corpus in the

Texas Court of Criminal Appeals, the highest criminal

appeals court in Texas, which, on a 5-4 vote, denied

the writ and issued the opinion reprinted in Appendix

From that judgment, Petitioners have come to this

Court.

Because the trial court held no contempt hearing

and made virtually no record, the case was essentially

decided by the Texas appeals court on the affidavits

of the Petitioners, the trial judge, the bailiffs, and

the assistant district attorney.

The facts are simple and uncontested in the main.

Petitioner Krupps was charged in the municipal

court of Port Neches, Texas, for driving an auto-

mobile without proof of liability insurance. During that

first trial, Mr. Krupps and other Petitioners, because

of their religious beliefs, declined to stand when the

municipal judge entered or left the courtroom at the

beginning and end of the proceedings.

After being found guilty in the municipal court on

the lack of insurance charge, Petitioner Krupps ex-

ercised his right to a de novo jury trial in Jefferson

County Court at Law (Judge Donald J. Floyd, pre-

siding).

As he did in municipal court, Krupps represented

himself pro se in county court. There, after voir dire

of the jury panel and adjournment for the day, the

bailiff noticed that Krupps and the others did not rise

when the judge exited; he told Krupps that he had

to rise for the judge. Krupps replied, in the bailiff’s

words, that his religion and interpretation of the Bible

prohibited him from rising on such occasion, that he

could not bow to any man, but only to God, and that

he would die before violating his religious beliefs. The

bailiff warned Krupps that, if he did not stand when

the judge entered the courtroom the next day, he

would be held in contempt. Statement of Deputy Ben

C. Collins (pages 1-2); Affidavit of Deputy Ben Col-

lins, dated July 2, 1985 (pages 1-2); Affidavit of Har-

old Everett Skiles, Assistant Jefferson County District

Attorney, dated July 1, 1985.

In his discussion with the bailiff, Krupps empha-

sized that, although his religious beliefs precluded him

from rising for a symbol of human authority, he meant

no disrespect to the court.

The bailiff then relayed Krupps’ comments and fail-

ure to stand to the judge who until then was unaware

of Petitioners’ failure to rise. Affidavit of Collins,

supra; Affidavit of Donald J. Floyd, dated July 2,

1985 (pages 1-2).

On the next day, June 14, 1985, before trial, Judge

Floyd met in chambers and talked with Petitioner

Krupps who renewed his religious objection to rising

for the judge. The judge urged him to stand or remain

outside the courtroom until after the judge had en-

tered. Krupps declined Judge Floyd’s suggestion.

The record is very unclear as to whether the re-

maining six Petitioners ever received actual notice of

their potential citation for criminal contempt.

On June 14, when Judge Floyd entered the court-

room, he observed that Petitioners did not stand and

summarily sentenced them to thirty days in jail. All

this happened outside the presence of the jury. Cf.

Transcript of Trial Proceedings (June 14, 1985); Ap-

pendix B.

The record contains absolutely no suggestion that

Petitioners’ conduct was anything but peaceful, or-

derly, and otherwise respectful. Petitioners spoke no

speech and took no action that would demonstrate

either obstruction or inclination toward disruption of

the judicial proceedings.

In fact, the record reflects the opposite. The record

shows that the Port Neches municipal judge was able

to proceed through trial without disruption by ignor-

ing Petitioners’ failure to rise and that later Judge

Floyd in fact conducted the first day of trial, the jury

selection, without obstruction and had not noticed that

Petitioners remained seated when he entered and left

the room, until so informed by the bailiff.

The record indicates that, apart from declining to

rise at the beginning and end, Petitioners otherwise

participated in the trial to the extent called upon to

do so.

The sincerity of Petitioners’ religious beliefs was

not disputed in the slightest by either of the Texas

courts which considered their claims. As Petitioners’

affidavits demonstrate, their refusal to rise rests upon

strict, literal interpretation of various sections from

at least twelve books of the Bible (such as Exodus,

Daniel, Proverbs, and Corinthians, for example).

Petitioners sought a writ of habeas corpus below

on three grounds: (1) that they were denied due proc-

ess by being summarily convicted of contempt; (2)

that there was no evidence to support their contempt

convictions; and (8) that the First Amendment created

an exemption to the rising requirement.

The Court of Criminal Appeals overruled each issue.

The Texas court acknowledged that it was applying

a common law rule of criminal contempt, less limited

than the federal contempt statute. Appendix A, pp.

lla-12a; 712 S.W.2d at 150.

With respect to the Free Exercise claim, the court’s

analysis is rather sparse, essentially failing to apply

any of the Free Exercise tests developed by this Court

and deciding that the burden on Petitioners’ religious

freedom was ‘“‘self-imposed.”” Appendix A, page 13a;

712 S.W.2d at 151.

REASONS FOR GRANTING THE WRIT

The first substantive issue is whether the First

Amendment guarantee of religious free exercise and

protection from coerced symbolic speech can be de-

nied in the peaceful context in which it arose.

One of the cornerstones that has made American

society strong is its guarantee of religious diversity.

The accommodation of religious belief not only re-

flects the tolerance of a strong democracy, but also

provides the believers of a religious community with

a tool with which to fashion and shape their identity

and morality. The pragmatism of America society has

lead it to adapt with the free exercise of religious

belief and dissent and thus fashion a vital, long-stand-

ing society.

The imposition of a month-long jail term for ex-

ercising a very simple, peaceful, and not necessarily

disrespectful religious tenet or symbolic gesture, that

is, refusing to stand for another human being, clearly

violates the First Amendment.

ei case is important not only for the seven people

ddle-aged parents) who face thirty days in an East

Texas county jail because of their religious beliefs,

but also for others who, for sincere reasons, feel com-

pelled not to rise for a symbol of human authority,

even though they otherwise peacefully comply with

the requirements of judicial process.

Courts surely need to enforce order and decorum;

but that authority is not without limit and is subject

to the general restraint on governmental power found

in the First Amendment.

The second issue is whether a trial judge, consistent

with due process guarantees, can summarily imprison

people for thirty days simply because they peacefully

fail to rise.

I. THE FIRST AMENDMENT PROTECTS

PETITIONERS FROM BEING JAILED FOR

PEACEFULLY DECLINING TO RISE WHEN A

JUDGE ENTERS OR LEAVES THE COURTROOM

A. Standards for Applying a Free Exercise Claim

The Texas Court of Criminal Appeals applied no

recognized test in evaluating Petitioners’ claim that

their religious belief was burdened by the rising re-

quirement.

Generally, this Court has applied a two-pronged test

concerning the state’s interest and the accommoda-

tion required.

In Sherbert v. Verner, 374 U.S. 398 (1963), and

Thomas v. Review Board, 450 U.S. 707 (1981), the

Court expressed the test as requiring the state to

demonstrate that its challenged policy was ‘“‘the least

restrictive means of achieving some compelling state

interest.’’ Thomas, supra, at 718. Sherbert, supra, at

406-408. Sherbert and Thomas allowed claimants to

receive unemployment benefits when their refusal to

work was based on sincere religious beliefs.

Wisconsin v. Yoder, 406 U.S. 205, 215 (1972), for-

mulated the test as: “only those interests of the high-

est order and those not otherwise served can

overbalance legitimate claims to the free exercise of

religion.”” Yoder ruled that the Amish were exempt

from a Wisconsin requirement that children attend

school through age 16.

In United States v. Lee, 455 U.S. 252, 257-258

(1982), this Court held that Amish employers could

not exempt themselves from the Social Security sys-

tem on religious grounds, the test in that case being

that the ‘“‘state may justify a limitation on religious

liberty by showing that it is essential to accomplish

an overriding governmental interest.” See also Gillette

v. United States, 401 U.S. 487 (1971) (conscientious-

objector status only for those opposed to war gen-

erally).

As Justice O’Connor noted in Goldman v. Wein-

berger, 106 S.Ct. 1810, 1325 (1986) (dissenting), the

tests, although not identical, are similar, comprising

two consistent themes:

First, when the government attempts to deny

a Free Exercise claim, it must show that an

unusually important interest is at stake,

whether that interest is denominated ‘‘com-

pelling,” ‘‘of the highest order,” or “‘over-

riding.”” Second, the government must show

that granting the requested exemption will

do substantial harm to that interest, whether

by showing that the means adopted is the

“least restrictive’’ or “‘essential,’’ or that the

interest will not ‘‘be otherwise served.”

B. Applying the Free Exercise Test

In this case, the Court of Criminal Appeals ne-

glected to analyze either requirement in a coherent

fashion.

First, the appellate court did not show that, what-

ever opposing interest the trial judge asserted, it was

one of such compelling importance that it had to ov-

erride or prevail against Petitioners’ sincere Free Ex-

ercise claim.

Nor did the Texas court show that the state’s in-

terest in this case would have been substantially

harmed by granting a religious exemption from the

rising requirement and that its interest could not oth-

erwise be served in a less restrictive fashion. This

second prong is required of the government because

the Bill of Rights ‘is expressly designed to protect

the individual against the aggregated and sometimes

intolerant powers of the state ....” Goldman, supra.

The record in this case does not show any break-

down of courtroom decorum. It does not show that

Petitioners acted in any but a respectful manner (one

can respectfully decline to rise for a judge); nor does

it reflect any disorder, disturbance, or interruption of

court business, or any malicious speech, antagonism,

or belligerence either to the judge or to anyone else.

In fact, the record shows the contrary; and it shows

the depth and sincerity of Petitioners’ religious be-

liefs.

The Court of Criminal Appeals did articulate two

reasons to support the summary contempt convic-

tions.

The Texas court decided that Petitioners’ refusal

to rise “disregard[ed] the formality and seriousness

of a court’s function, and directly conflict[ed] with the

‘imperative need of the community in having an es-

tablished forum in which controversies ... may be

decided in a calm, detached, neutral atmosphere.’ ”’

Appendix A, p. 12a; 712 S.W.2d at 150-151 (citation

omitted).

The criminal appeals court decided that the mere

failure to rise obstructed the proper administration of

justice, even though the record shows absolutely noth-

ing but a calm, detached, and neutral atmosphere.

Indeed, the judge himself was not aware of

Petitioners’ declining to rise until so informed after

the first day of trial.

A court does have the need to signal the beginning

and end of its proceedings and to bring about quiet,

but those interests do not satisfy the high standards

established by this Court in Free Exercise claims. The

rising requirement is itself not a “compelling” or

“overriding” interest or one “‘of the highest order.”’

As to the second prong of the Free Exercise test,

there are many ways of accommodating Petitioners’

religious scruples with the court’s legitimate interests.

(The record shows that the court’s interests were in-

deed served and unimpaired on the first day of trial,

despite Petitioners’ failure to rise)

As Presiding Judge Onion noted in his concurring

vote to make up the majority below, the rising re-

quirement is relatively new in Texas, less than 32

years old. For more than 118 years, Texas courts

functioned well without the rising requirement.

There is no reason why a court cannot come to

order while accommodating seven people whose sin-

cere religious belief causes them to respectfully de-

cline to stand.

Obviously, the bailiff intoning ‘the court is in ses-

sion’ or similar phrases signals a beginning to the

proceedings and the need for quiet.

If Judge Floyd felt the need to offer an explanation

So as preserve his authority, he could have simply

advised others in the courtroom that Petitioners’ re-

ligious belief caused them not to stand and that an

important tenet the American system is to recognize

and accommodate that belief. Such a statement to the

others protects the dignity and integrity of the court,

without infringing upon Free Exercise.

Solely advising Petitioners that they could stay out-

side the courtroom until the judge entered was an

unsatisfactory attempt at accommodation: ‘Freedom

of expression would not truly exist if the right could

be exercised only in an area that a benevolent gov-

ernment has provided ....”’ Tinker v. Des Moines

Independent Community School District 393 U.S. 503,

513 (1969). Cf Abington School District v. Schempp,

374 U.S. 203, 224-225 (1963) (rejecting argument that

students could avoid mandatory school prayer by ab-

senting themselves from classroom).

Besides, Petitioner Krupps, as a defendant, had a

right to participate in the entire trial proceeding; he

could not be compelled to yield one constitutional right

in order to exercise another. Cf. Aptheker v. Secretary

of State, 378 U.S. 500 (1964).

The other six Petitioners would also have a First

Amendment right to be present for the proceedings,

particularly when they were there in support of

Krupps and might even be witnesses for him and

assist him, as they did on appeal, while proceeding

pro se in his own defense. Cf. Richmond Newspapers,

Inc. v. Virginia, 448 U.S. 555 (1980).

As the dissent below noted, the municipal judge

was able to accommodate the religious belief of

Petitioners without incident, simply by ignoring their

refusal to stand. Appendix A, p. 21a; 712 S.W.2d at

155.

The mere act of rising is not the only index of

respect. There are many other indicia, such as how

one talks to the judge, the tone of voice, whether the

person stands during other parts of proceedings, and

so on. Nothing in the record shows that Petitioners

were anything but respectful. In fact, their pro se

pleadings all show utmost respect for the courts; and

they just as strongly reflect Petitioners’ religious be-

liefs.

Nor do the two Free Exercise cases which this

Court decided last term compel a different result.

Goldman v. Weinberger, 106 S.Ct. 1310 (1986), up-

holding an Air Force regulation against wearing a

yarmulke while on duty, was decided, over vigorous

dissents, on the unique standards of deference given

to military discipline under the Constitution.

Bowen v. Roy, 106 S.Ct. 2147 (1986), essentially

held that, where public benefits were voluntarily

sought, the government could dictate its own internal

administrative procedures for such benefits by re-

quiring use of Social Security numbers assigned by

the government, despite Free Exercise claims. The

two concurring Justices were troubled by the possible

mootness of the case (Id. at 2159-2160, 2162-2164);

and the three remaining Justices in the majority spe-

cifically noted, in Section III, that Bowen was not a

case of “affirmatively compel[ling] appellees, by threat

of sanctions, to refrain from religiously motivated

conduct” and that the statute in question was of a

‘less intrusive nature than affirmative compulsion or

prohibition, by threat of penal sanctions, for conduct

that has religious implications.’ Jd. at 2154, citing,

inter alia, United States v. Lee, supra, at 259, Wis-

consin v. Yoder, supra, Gillette v. United States, su-

pra, West Virginia State Board of Education v.

Barnette, 319 U.S. 624 (1948), and Jacobson v. Mas-

sachussetts, 197 U.S. 11 (1905).

C. Petitioners Were Also Protected by the First Amend-

ment from Compelled Symbolic Speech

Finally, we must consider, and disregard, the Texas

court’s attempt to distinguish the flag saluting ex-

emption in West Virginia Board of Education v. Bar-

nette, supra, from the rising requirement, as a

“functional justification.” Appendix A, p. 13a n. 10;

712 S.W.2d 151 n. 10.

Even though those objecting to mandatory flag sa-

luting did so because of their belief as Jehovah’s Wit-

nesses (they, in fact, relied on some of the same

passages of the Bible as do Petitioners here), Barnette

did not turn on “particular religious views or the

sincerity with which they are held’’ but focused first

on the state’s ‘‘power to make the salute a legal duty’”’

because “‘many citizens who do not share these re-

ligious views hold such a compulsory rite to infringe

constitutional liberty of the individual.”’ Supra, at 634,

635, 634-635 (footnote omitted)

Justice Jackson’s majority opinion for Barnette is

one of the most poignant and poetic tributes to the

exercise of dissent in a democracy, addressing not

only objection to compelled saluting of the flag but

also the philosophical roots of the First Amendment:

... the refusal of these persons to participate in

the ceremony does not interfere with or deny

rights of others to do so. Nor is there any ques-

tion in this case that their behavior is peaceable

and orderly. The sole conflict is between author-

ity and rights of the individual ....

os 42 2.8 4 $2 OD

There is no doubt that, in connection with the

pledges, the flag salute is a form of utterance.

Symbolism is a primitive but effective way of

communicating ideas. The use of an emblem or

flag to symbolize some system, idea, institution,

or personality, is a short cut from mind to mind.

Causes and nations, political parties, lodges and

ecclesiastical groups seek to knit the loyalty of

their followings to a flag or banner, a color or

design. The State announces rank, function, and

authority through crowns and maces, uniform and

black robes; the church speaks through the Cross,

the Crucifix, the altar and shrine, and clerical

raiment. Symbols of State often convey political

ideas just as religious symbols come to convey

theological ones. Associated with many of these

symbols are appropriate gestures of acceptance

or respect: a salute, a bowed or bared head, a

bended knee ....

... To sustain the compulsory flag salute we are

required to say that a Bill of Rights which guards

the individual’s right to speak his own mind, left

it open to public authorities to compel him to

utter what is not in his mind ....

_.. Hence validity of the asserted power to force

an American citizen publicly to profess any state-

ment of belief or to engage in any ceremony of

assent to one, presents questions of power that

must be considered independently of any idea we

may have as to the utility of the ceremony in

question.

Id. at 630, 632, 6384.

Just as saluting a flag symbolizes ‘‘adherence to

government as presently organized’’, so does the ris-

ing requirement compel ‘‘the individual to communi-

cate by ... sign his acceptance of the political ideas

it thus bespeaks. Objection to this form of commu-

nication when coerced is an old one, well known to

the framers of the Bill of Rights.” Jd. at 633 (footnote

omitted).

An historical example of this compelled orthodoxy,

Justice Jackson noted, was the punishment which the

Quakers (and William Penn) suffered rather than un-

cover their heads in deference to civil authority. Jd.

n. 13.

The Barnette test for justifying government com-

pulsion is also greater for the state than in the Free

Exercise cases: “It is now a commonplace that cen-

sorship or suppression of expression of opinion is tol-

erated by our Constitution only when the expression

presents a clear and present danger of action of a

kind the State is empowered to prevent.” Id. at 633.

Surely, no “clear and present danger” emerged in

this case to justify the trial judge’s summary jailing

of the seven people who refused to rise as a gesture

of symbolic speech. Cf. Wooley v. Maynard, 430 U.S.

705 (1977) (invalidating as impermissible coerced

speech the requirement of showing the New Hamp-

shire state motto on auto license plates). Cf. also Dor-

sen and Friedman, Disorder in the Court (New York:

Pantheon Books, 1973), pp. 111-113 (an overview of

law and a survey of judges showing that very few

felt that contempt was appropriate even in cases of

“passive disrespect’”’).

Justice Stevens, then a Circuit Judge, dissenting in

In re Chase, 468 F.2d 128 (7th Cir. 1972), viewed

refusing to rise as protected by Barnette:

I think the district court correctly de-

scribed the real reason why courts generally

command or request those present to stand

when a session commences or concludes. Ris-

ing is a traditional demonstration of respect

“for the courts which are a part of our whole

system of government within this country.”’

I share the district judge’s respect for that

tradition .... But if we recognize that tra-

dition for what it is, we must also acknowl-

edge that the sovereign’s power to require

its free citizens to perform symbolic acts of

respect for authority is not unlimited.

Id. at 136-137 (footnote omitted).

The Fourth Circuit, in United States v. Snider, 502

F.2d 645 660 (4th Cir. 1974), also found difficulty in

‘‘distinguish[ing] the rising requirement from the flag

salute,” citing Barnette, supra, at 633 (footnote omit-

ted). (The Circuit discussed in greater detail the ci-

tations of William Penn and William Mead for not

removing their hats in court. Id. at 648 n. 7A ff).

Ii. THE DUE PROCESS CLAUSE OF THE FOUR-

TEENTH AMENDMENT PROTECTS PETITON-

ERS FROM BEING SUMMARILY JAILED FOR

THIRTY DAYS

There are also significant substantive and proce-

dural due process questions raised by the summary

criminal contempt levied against Petitioners.

The substantive question is whether the thirty-day

confinement assessed is cruel and unusual punishment

under the facts of this case. Cf. Bowers v. Hardwick,

106 S.Ct. 2841, 2847 (1986) (Powell, J., concurring);

Coker v. Georgia, 433 U.S. 584, 592 (1977) (two-prong

test of “purposeless and needless imposition of pain

and suffering” and “grossly out of proportion to the

severity of the crime’’).

As to procedural due process, the record does not

show that the other six Petitioners were admonished

by the judge that they would be held in contempt if

they did not rise. Only Krupps was so advised; and,

since the judge held no contempt hearing, the record

does not reflect that he knew whether Krupps had

communicated that warning to the others. (Even were

this Court not disposed to grant a writ, Petitioners

would suggest that the judgment below should at least

be vacated and the case remanded for an evidentiary

hearing.)

There was no attorney present, or appointed, for

Petitioners when they were held in contempt.

Petitioners, proceeding pro se, should have been care-

fully warned of the seriousness of the situation, that

they were about to be imprisoned, and given the

chance to seek, or request, counsel.

Given the lack of hearing and counsel, the criminal

penalty is shocking and unconscionably disproportion-

ate. Confining people in jail for thirty days is surely

excessive, especially when there was no disruption of

court by Petitioners who were respectful and who

otherwise participated in the trial proceedings.

This Court long ago recognized that summary con-

tempt power is a significant departure from accept-

able due process standards.

In re Oliver, 333 U.S. 257, 275 (1948), set out six

criteria for those limited situations in which summary

contempt may be invoked without running afoul of

due process requirements:

The narrow exception to these due process re-

quirements includes only . .. misconduct, in open

court, in the presence of the judge, which disturbs

the court’s business, where all of the essential

elements of the misconduct are under the eye of

the court, are actually observed by the court, and

where immediate punishment is essential to pre-

vent “‘demoralization of the court’s authority’ be-

fore the public.

If any of the six “essential elements ... are not

personally observed by the judge ... due process re-

quires ... that the accused be accorded notice and a

fair hearing.”’ Id. at 275-276, citing Cooke v. United

States, 267 U.S. 517, 536 (1925). Cf. Bloom v. Illinors,

391 U.S. 194 (1968); Taylor v. Hayes, 418 U.S. 488,

497-500 (1974); United States v. Wilson 421 U.S. 309,

319 (1975), citing Anderson v. Dunn, 19 U.S. (6

Wheat.) 204, 231 (1821).

In this case, at least two of the essential criteria

(disrupting the court’s business and the need for im-

mediate punishment to prevent demoralization of au-

thority) were clearly lacking.

Due process protections proscribe summary con-

finement without a hearing in situations where there

is not “such an open, serious threat to orderly pro-

cedure that instant and summary punishment ... was

necessary.” Harris v. United States, 382 U.S. 162,

165 (1965), citing Cooke v. United States, supra. Cf.

Dorsen and Friedman, supra, at pages 232-238 (‘‘The

Summary Contempt Power’’).

At the very least, then, this Court should vacate

the appellate judgment below and remand the case

for a due process hearing.

The Court of Criminal Appeals’ summary disposal

of In re McConnell, 370 U.S. 230 (1962), as a con-

struction of federal statutory contempt power, ignores

the constitutional underpinnings which McConnell

found in 18 U.S.C. § 401:

. while this statute undoubtedly shows a pur-

pose to give courts summary powers to protect

the administration of justice against immediate

interruption of court business, it also means that

before the drastic procedures of the summary

contempt power may be invoked to replace the

protections of ordinary constitutional procedures

there must be an actual obstruction of justice

‘The exercise . . . of any broader contempt power

than this ... would permit too great inroads on

the procedural safeguards of the Bill of Rights,

since contempts are summary in their nature, and

leave determination of guilt to a judge rather

than a jury.”’

In re McConnell, supra, at 234, citing In re Michael,

326 U.S. 224, 227 (1945); Cf Ex parte Hudgings, 249

U.S. 378, 383 (1919); Nye v. United States, 313 U.S.

33, 53 (1980).

In re Oliver and In re McConnell and their under-

lying due process safeguards have been consistently

observed by the Circuits.

Because the Texas Court of Criminal Appeals de-

cision on this federal question conflicts with those of

the different federal courts of appeals and of at least

one state Supreme Court [Rules of the Supreme

Court, Rule 17.1(b)], Petitioners would briefly point

to the conflicting federal appellate decisions. Some of

the cases concern the symbolic speech discussed in

Barnette; and others, due process.

The Texas court’s reliance on Comstock v. United

States, 419 F.2d 1128 (9th Cir. 1969), would seem

misplaced. There, the Circuit upheld a fifteen-day con-

tempt sentence of the appellant who not only did not

rise but refused to approach the bench when ordered

by the judge, went limp after being led to the judge,

and lay prostrate on the floor when addressed by the

court. Petitioners did not engage in egregious behav-

ior like Comstock’s.

In re Chase, supra, is also quite distinguishable.

Chase was found guilty of ninety-nine acts of con-

tempt and assessed three days’ confinement for each.

His conduct and colloquies with the judge and his

counsel about refusing to stand “‘interrupt{ed] the trial

proceedings sufficiently to amount to obstructions of

judicial administration.” Id. at 129, 182.

The Seventh Circuit nevertheless refused to adopt

a per se rule that simply refusing to rise constituted

contempt: “The contempt statute requires something

more tangible, though not always physical, in the way

of an obstruction.” Id. at 133.

Justice Stevens, then a Circuit Judge, vigorously

dissented in favor of a stronger rule:

It does not follow ... that if any individual

were permitted to disobey the command to rise,

a crack would form in the judicial edifice which

would ultimately cause the entire structure to

crumble. The edifice rests on a stronger foun-

dation than its ceremonies; the real respect of

the citizenry for the judiciary is earned, not com-

manded ....

Insofar as the rising custom serves the purpose

of marking the beginning or the end of a session,

or of reminding those present to be quiet and to

pay attention, it matters not one whit whether

the defendant also rises .... The real question

is whether his failure to perform the traditional

symbolic gesture of respect for the court is such

a distraction that the orderly conduct of the pro-

ceedings may be materially impaired. Unless the

defendant’s action—or ... his inaction—consti-

tutes a material ‘“‘obstruction ...” it is not pun-

ishable as criminal contempt.

Id. at 137-138 (dissenting) (footnotes omitted).

In the same way, United States v. Snider, supra,

argues against the Texas court. There, the Fourth

Circuit specially held “that the mere failure to rise

... does not constitute criminal contempt. ... To so

hold will not, we think, tend to diminish respect for

the judiciary and for the administration of justice.’’

Id. at 660.

Although Snider’s failure to stand was prompted

by his religious faith, the Circuit did not rely on his

Free Exercise claim, but treated the case as involving

symbolic speech as in Barnette:

... the custom of rising contributes to the func-

tioning of the court by ‘“‘marking the beginning

and end of the session” and by “serv(ing] to re-

mind all that attention must be concentrated upon

the business before the court. ...’”” But the words

of the clerk or the judge may serve this function

as well. The rising requirement seems to us not

essential to the functioning of the court; as-such,

the failure to rise does not constitute a material

obstruction. If the failure to rise ... causes ‘a

failure to become silent or focus attention on the

business before the court”... the fault may bet-

ter be resolved by compelling silence and atten-

tion than by coercing a gesture of respect.

Never was [appellants’] conduct anything but

quiet and respectful. Neither by word nor sign

did they do anything “to obstruct the adminis-

tration of justice’’—except they would not stand.

When ordered to do so, their response was a

simple “I cannot, in good conscience, stand” or

words of similar content.

Id. at 659 (citations omitted), 658.

(It is on the dissent in Snider, not the majority hold-

ing, that the Court of Criminal Appeals relies).

Three other cases deserve mention.

United States v. Abascal, 509 F.2d 752 (9th Cir.),

cert. denied, 422 U.S. 1027 (1975), upheld a contempt

citation of a man who had remained slouched in his

seat during proceedings, refused to rise at the end,

and would not step forward when ordered by the

judge. The Circuit only focused on Abascal’s ‘‘diso-

bedience,” his refusal to step forward, as the con-

temptuous conduct. Jd. at 756. The Circuit, moreover,

faulted the lower court for ordering “immediate in-

carceration” when “[ljess drastic alternatives were

available.”” If there was to be incarceration, there

should have been a due process hearing. Accordingly,

the Circuit reduced the ninety-day sentence to the

two weeks already served before appeal. Id. at 756,

757. Cf. also United States v. Flynt, 756 F.2d 1352,

1362 (9th Cir. 1985), citing In re Gustafson, 650 F.2d

1017, 1022 (9th Cir. 1981).

In Commonwealth v. Cameron, 462 A.2d 649 (Pa.

1983), the Pennsylvania Supreme Court, largely re-

lying on federal precedents, reversed two criminal

contempt convictions for refusing to rise because of

religious reasons. Cameron, however, did not consider

“the constitutional implications that may be raised by

the assertion that appellant’s actions were inspired

by his religious beliefs’’ but simply held that a “‘re-

fusal to rise, without more,”’ which “did not result in

a significant disruption in the court proceedings,” did

not constitute criminal conduct. Jd. at 652.

Finally, the Seventh Circuit has acknowledged that

failure to rise, if done as “‘symbolic acts, when not

coupled with further disturbance or disruption, some-

times might not rise to the level of an actual and

material obstruction of the judicial process.” In re

Dellinger, 461 F.2d 389, 401 (7th Cir. 1972).

CONCLUSION

Whether the Court views this case as one concern-

ing imprisonment for compelled free speech or for

religious Free Exercise, or as the unjustified summary

denial of due process, Petitioners’ constitutional rights

were clearly and impermissibly violated; and the Texas

Court of Criminal Appeals erred grievously in up-

holding Petitioners’ thirty-day jail sentence.

Barnette’s admonition is a fitting close to this

Petition:

Government of limited power need not be ane-

mic government. Assurance that rights are secure

tends to diminish fear and jealousy of strong gov-

ernment, and by making us feel safe to live under

it makes for its better support. ... To enforce

those rights today is not to choose weak govern-

ment over strong government. It is only to ad-

here as a means of strength to individual freedom

of mind in preference to officially disciplined uni-

formity for which history indicates a disappoint-

ing and disastrous end.

The subject now before us exemplifies this prin-

ciple.

West Virginia Board of Education v. Barnette, supra,

at 636-637.

For all of these reasons, a Writ of Certiorari should

be granted and this case should be set for argument.

Alternatively, the judgment below should be vacated

and the case remanded for an evidentiary, due process

hearing.

Dated: October 9, 1986.

Respectfully submitted,

JAMES C. HARRINGTON

Counsel of Record

TEXAS CIVIL LIBERTIES

UNION FOUNDATION, INC.

1611 East First Street

Austin, Texas 78702-4455

(512) 477-5849

Ropric B. SCHOEN

Texas Tech University

School of Law

Lubbock, Texas 79409

Attorneys for Petitioners

APPENDIX

APPENDIX A

EX PARTE CHARLES E. Krupps, HAROLD O. EDGINGTON,

H.O. MATHEWS, VINCENT ROSE, LATTIE ROSE, ROSE

a HENLEY & JOHN HENLEY,

Applicants.

No. 69491.

Court of Criminal Appeals of Texas,

En Banc.

June 11, 1986

OPINION

W. C. DAVIS, Judge.

This is an original application for writ of habeas corpus

in which seven applicants seek relief from a judgment

holding them in contempt of County Court at Law No. 3

of Jefferson County. Applicants (Charles Edward Krupps,

Harold O. Eddington, Howard D. Matthews, Sr., Vincent

Rose, Lattie Jo Darby Rose, Rosie Henley, and John Ellis

Henley) were summarily held in contempt of Respondent

Donald J. Floyd on June 4, 1985 for ‘‘being disrespectful

by failing to rise upon the entrance of the Court after

being duly admonished and warned of consequences of their

failure to do so.’’ Applicants’ punishment was fixed at

thirty days confinement in the county jail.

Applicants urge three grounds for relief. First, appli-

cants claim that the order of contempt is void because the

trial court failed to provide them with due process. Second,

applicants claim that there is no evidence which would

support a contempt conviction. Third, applicants claim that

the First Amendment’s Free Exercise Clause creates an

exemption to the “rising’’ requirement.

The record is presented to this Court largely in the form

of affidavits. Although the use of affidavits presents this

Court with the unusual circumstance of an informal record,

such informality is not without precedent in a direct con-

tempt. See Ex parte Herring, 488 S.W.2d 801, 803 (Tex.

1969); Ex parte Hosken, 480 S.W.2d 18, 22, n. 4 (Tex. Civ.

App. - Beaumont 1972). As the Supreme Court has noted:

“A contempt holding depends in a very special way

on the setting, and such elusive factors as the tone of

voice, the faciai expressions, and the physical gestures

of the contemnor; these cannot be dealt with except

on full ventilation of the facts. Those present often have

a totally different impression of the events from what

would appear even in a faithful transcript of the re-

cord.” In re Little, 404 U.S. 558, 556, 92 S.Ct. 659,

aren 661, 30 L.Ed.2d 708 (1972) (Burger, C.J., concurring).

This is especially true where, as here, this Court must

review the trial court’s decision based on affidavits. There-

fore, we review the affidavits with caution and restraint.

On June 13, 1985, Applicant Krupps appeared as a pro

se defendant in County Court at Law No. 3 in Jefferson

County before Respondent Judge Donald J. Floyd. The pur-

pose of the appearance was to proceed upon a trial de novo

from a conviction in Justice of the Peace Court for operating

a motor vehicle without liability insurance. The other appli-

cants had accompanied Krupps and were present as spec-

tators. Upon completion of voir dire, court was recessed and

the bailiff, Deputy Ben Collins, advised every one to rise.

As Judge Floyd exited the courtroom, the bailiff noticed that

the applicants did not stand. The bailiff advised the appli-

cants that in the future they were to stand whenever a

judge entered or exited a courtroom. The applicants re-

sponded that they would continue to remain seated. The

bailiff notified Judge Floyd of the applicants’ intentions. The

trial remained recessed until the following morning.

On June 14, 1985, before court convened, Judge Floyd

instructed applicants, through the bailiff, that they would

be held in contempt if they continued to refuse to rise.

Several spectators left the courtroom at this point, decid-

ing to stay outside until after court had convened. How-

ever, applicants again informed the bailiff that they would

not rise. The bailiff informed Judge Floyd that the appli-

cants had indicated they would continue to refuse to rise

upon entrance of the judge. Judge Floyd then had the

bailiff bring Krupps to his chambers. In the presence of

Deputy Collins, Deputy Pat Pilgrim and Judge Floyd,

Krupps made it clear that he would continue to refuse to

stand. He explained to the judge that, as a “follower of

Christ,” he could not rise upon the entrance or exit of a

judge. Judge Floyd offered applicants, through Krupps, the

alternative of remaining outside of the courtroom until

court had convened.' Krupps again refused. Judge Floyd

continued to advise Krupps that such a refusal was con-

temptuous. Krupps then returned to the courtroom.

When court convened, the bailiff advised everyone to

rise. The applicants did not stand, and Judge Floyd held

them in contempt of court.

Applicants initially argue that they were not accorded

due process in their contempt adjudication. The due proc-

ess required for a particular contempt adjudication depends

upon the type of contempt which has occurred. Contempts

in Texas are divided into two types: direct and construc-

tive. 18 Tex.Jur.3d, Contempt, § 2, p. 183.

In Ex parte Supercinski, 561 S.W. 2d 482

(Tex.Cr.App.1977), this Court describes acts constituting

i Judge Floyd stated in his affidavit:

I explained that I did not want to hold them in contempt and

place them in jail so why couldn’t they step outside until Court

convenes and then return once the proceedings started. He stated

they would not do that.

direct contempt as those in which the court knows all of

the secondary facts. Direct contempt is further defined in

Black’s Law Dictionary as “‘[t]hose [acts] committed in the

immediate view and presence of the court or so near the

presence of the court as to obstruct or interrupt the due

and orderly course of the proceedings.’ Black’s Law Dic-

tionary (Fifi: Ed. 1983), 168.

Direct contempt adjudications satisfy the demands of

due orocess through summary conviction and punishment

without the need for prior notice or a hearing. Ex parte

Harvill, 415 S.W.2d 174 (Tex.1967); Ex parte Norton, 144

Tex. 445, 191 S.W.2d 713 (1946). “Direct contemnors are

not entitled to notice of the contempt charge or a hearing

because there is no factual dispute arising from contemp-

tuous behavior that occurs in the court’s presence.” Ex

parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979).

The United States Supreme Court has recognized the

power of Texas courts to use summary procedures in cases

involving direct contempt. Fisher v. Pace, 336 U.S. 155,

69 S.Ct. 425, 93 L.Ed. 569 (1949). In Fisher, supra 69

S.Ct. at 427, the Court reasoned:

“Historically and rationally the inherent power of

courts to punish contempts in the face of the court

without further proof of facts and without aid of jury

is not open to question. This attribute of courts is

essential to preserve their authority and to prevent

the administration of justice from falling into disre-

pute. Such summary conviction and punishment ac-

cords due process of law.’

The Court, in a footnote, added that “[tJhis rule is well

established in Texas.” Id., 69 S.Ct. at 427 n. 4.

Constructive contempt has been defined as relating to

“acts which require testimony to establish their existence.”

Ex parte Cooper, 657 S.W.2d 435, 487 (Tex.Cr.App.1983).

Constructive contempt is further defined in Black’s Law

Dictionary as “[t]hose [acts] which arise from matters not

occurring in or near the presence of the court, but which

tend to obstruct or defeat the administration of justice,

...” Black’s Law Dictionary (Fifth Ed.1983), 167.

In Cooper, supra, the Court found the failure of an

attorney to appear in court to be an example of construc-

tive contempt. Such an occurrence constitutes an act which

happened outside the presence of the court and upon which

testimony will be required in order to discover the relevant

facts.

Constructive contempt adjudications satisfy the demands

of due process by requiring that the contemnor be given

notice, a hearing and the opportunity to obtain an attorney.

Ex parte Hodge, 389 S.W.2d 463 (Tex.1965); Ex parte

Flournoy, 159 Tex. 425, 312 S.W.2d 488 (1958). These due

process requirements are necessary because all of the ele-

ments of the offense are not personally observed by the

court. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed.

682 (1948); Ex parte Pyle, 134 Tex.148, 133 S.W.2d 565

(1939).

With this understanding of the due process differences

in direct and constructive contempt adjudications, we now

must determine whether the facts of the instant case war-

rant a direct or constructive contempt proceeding, or both.

In the instant case Bailiff Collins instructed the six ap-

plicants to rise. They refused to do so. Judge Floyd,

through Bailiff Collins, instructed the six that, should they

refuse to rise, they would be held in contempt. The affi-

davit of Bailiff Collins makes clear that the six applicants

understood that the threat of contempt originated with

Judge Floyd. Applicants again refused to rise. Bailiff Col-

lins informed Judge Floyd that the applicants would refuse

to rise upon his entrance into the courtroom. When Judge

Floyd entered he saw that the applicants had not risen

and held them in contempt.

Bailiff Collins, as an officer of the court,? admonished

the applicants at the behest of Judge Floyd.? He made

clear to the applicants that the admonition originated with

Judge Floyd. The judge was advised that the applicants

intended to refuse to rise when he entered. The applicants

did in fact remain seated when Judge Floyd entered the

courtroom and were consequently held in contempt and

sentenced to thirty days in jail. Therefore, the admonish-

ment was made in the presence of a court officer acting

under direct instruction from the judge. The act which

constituted the contempt, the applicants’ failure to rise

after being admonished, occurred in the presence of the

judge. Thus, the entire act of contempt occurred in the

presence of the court‘ making this direct contempt. Under

these circumstances, the use of summary direct contempt

proceedings were proper and did not violate applicants’

due process rights.

Krupps, relying upon Taylor v. Hayes, 418 U.S. 488, 94

S.Ct. 2697, 41 L.Ed.2d 897 (1974) and Ex parte Avila,

659 S.W.2d 443, (Tex.Cr.App.1983), argues that this Court

has extended the requirements of notice and hearing to

? Article 36.24, V.A.C.C.P. reads in relevant part:

The sheriff of the county shall furnish the court with a bailiff

during the trial of any case to attend the wants of the jury and

to act under the direction of the court.

* Black’s Law Dictionary defines bailiff as:

A court officer or attendant who has charge of the court session

in the matter of keeping order, custody of the jury and custody

of prisoners while in court.

See also United States v. McCabe, 129 Fed. 708 (1st Cir.1904); People

v. Robarge, 41 Cal.2d 628, 262 P.2d 14 (concurring opinion).

‘In Ex parte Aldridge, 169 Tex.Cr.R. 395, 334 S.W.2d 161, 165

(app.1959), this Court said:

[t]he wording ‘in the presence of the court’ does not necessarily

mean ‘in the presence of the judge of the court. The court is

present whenever any of its constituent parts are engaged in the

prosecution of the business of the court ...

direct contempt proceedings. Neither Taylor nor Avila

supports such a conclusion.

In Taylor, supra, the Supreme Court reversed a direct

contempt conviction of an attorney because the trial judge

denied the attorney notice and a hearing, waiting until the

conclusion of the trial for sentencing. The Court held:

“This procedure does not square with the Due Proc-

ess Clause of the Fourteenth Amendment. We are not

concerned here with the trial judge’s power, for the

purpose of maintaining order in the courtroom, to pun-

ish summarily and without notice or hearing contemp-

tuous conduct committed in his presence and observed

by him. [Citation omitted] The usual justification of ne-

cessity [citation omitted] is not nearly so cogent when

final adjudication and sentence are postponed until after

trial. [footnote omitted] Our decisions establish that

summary punishment need not always be imposed dur-

ing trial if it is to be permitted at all. In proper cir-

cumstances, particularly where the offender is a lawyer

representing a client on trial, it may be postponed until

the conclusion of the proceedings. [citation omitted)’

Taylor, supra, 94 S.Ct. at 2703-2704.

In the instant case, the trial judge adjudicated the con-

tempt and sentenced applicants in one act. He did not

postpone his sentencing unt] after Krupps’ trial. In ad-

dition, the instant case did not involve the sensitive issue

of an attorney being placed in the position of defending

himself against a contempt charge while also attempting

to defend his client_in trial. The Court in Taylor, supra,

did not expand the due process requirements in a direct

contempt adjudication beyond the summary proceeding

present in the instant case where the trial judge adjudi-

cates the contempt and sentences a contemnor immedi-

ately.

In Avila, supra, the trial court held an attorney in con-

structive contempt without providing notice or hearing.

We held that such summary proceedings violated the spe-

cific statutory requirements of Art. 191la § 2(c), V.A.C.S.5

and the general due process required in constructive con-

tempt adjudications. Id. |

[2] The instant case is markedly different from Avila,

supra, because, in the instant case, applicants were held

in direct contempt. In addition, the contempt conviction

in the instant case was not directed at an officer of the

court; therefore, the broader due process requirements of

Article 191la, § 2(c), supra, are inapplicable. Both Taylor,

supra, and Avila, supra, therefore, are distinguishable.

We find that, in applicants’ adjudication, ‘the trial court

acted consistent with the due process required in a direct

contempt proceeding.

Applicants also argue that a conviction for contemptuous

conduct in Texas can only be upheld if the conduct “ob-

structs, or tends to obstruct, the proper administration of

justice.” Ex parte Jacobs, 664 S.W.2d 360

(Tex.Cr.App.1984); Ex parte Salfen, 618 S.W.2d 766 (1981).

He then argues that the evidence in the instant case is

insufficient to support a finding of contempt; therefore,

the judgment of contempt is void. See Deramus v. Thorn-

ton, 160 Tex. 494, 333 S.W.2d 824, 830 (1960).

We noted earlier that contempts are classified as either

direct or constructive when deciding the due process re-

quired in their adjudication. A similar decision is required

when deciding what grounds for contempt are available to

a court in a contempt adjudication.

“In Avila, supra 659 S.W.2d at 445, we observed “that a common

sense reading of Art. 191la, Sec. 2(c), supra, requires, in essence, a

trial de novo once its provisions have been invoked by a contemnor.

That is, once the offended judge has made a determination that an

officer of the court is in contempt of court, and the contemnor invokes

his mandatory right to a hearing before another judge, the statute

requires that *he guilt or innocence shall be determined by a judge

other than the offended judge.”

Contempts are either criminal or civil in nature. 13 Tex.

Jur., Contempt, § 3, p. 186; 17 C.J.S., Contempt, § 5(2),

p. 12. Criminal contempt results from doing that which

the court has prchibited; civil contempt generally results

from failing to follow an order of the court. Texas Pet

Foods Ine. v. State, 529 S.W.2d 820 (Tex. Civ. App. - Waco

1975), writ ref’d n.r.e. In addition, a proceeding which has

as its purpose to punish a contemnor through fine or im-

prisonment is classified as criminal; the contempt is con-

sidered civil if the purpose of the sentence is coercive or

remedial. Id.

[3] In the instant case, Judge Floyd clearly held appli-

cants in contempt for conduct which was prohibited. The

sentence of thirty days in jail had as its purpose to punish

applicants for refusing to stand. The contempt proceeding,

therefore, was criminal in nature.

Common law criminal contempt is not restricted only to

conduct that obstructs, or tends to obstruct, the proper

administration of justice.’ “{C]riminal contempts are all

those acts in disrespect of the court, or of its process, or

which obstruct the administration of justice, or tend to

bring the court into disrespect, etc.’”’ Ex parte Robertson,

27 Tex.App. 628, 11 S.W. 669 (1889). “‘Generally speaking,

he whose conduct tends to bring the authority and admin-

istration of the law into disrespect or disregard, interferes

with or prejudices parties or their witnesses during a lit-

igation, or otherwise tends to impede, embarrass, or ob-

‘The only Texas statute relevant to direct criminal contempt pro-

vides:

‘A court possesses inherently all powers necessary for the exercise

of its jurisdiction and the enforcement of its lawful orders, in-

cluding the authority to issue such writs and orders as may be

necessary or proper in aid of its jurisdiction. It has the duty to

require that proceedings shall be conducted with dignity and in

an orderly and expeditious manner and to so control proceedings

that justice is done. A court has the power to punish for con-

tempt.” V.A.C.S., art. 191la, §1(a).

10a

struct the court in discharge of its duties is guilty of

contempt.”” Ex parte Norton. 144 Tex. 445. 191 S.W.2d

713, 714 (Tex.1946), quoting 12 Amer.Jur., Contempt, § 2,

p. 389. See also 13 Tex.Jur.3d, Contempt, § 3, p. 187.

While these notions are stated broadly, they can be bro-

ken into two specific acts: 1) an act which is disrespectful

of the court and 2) an act which obstructs, or tends to

obstruct, the proper administration of justice. In Salfen,

supra, and Jacobs, supra, we noted the importance of the

second type of act as a ground for contempt. However,

this Court has never excluded disrespectful conduct from

the common law, as a ground for contempt. With this in

mind, we will now determine whether refusing to rise when

a judge enters a courtroom is conduct which can be found

contemptuous under common law.

We can find no Texas case which deals with the question

of whether refusal to rise when a judge enters the court-

room is contemptuous conduct. In the Federal judiciary,

one federal circuit court has held that refusal to rise fol-

lowing a trial court’s insistence that a contemnor comply

with the “rising requirement is sufficiently related to main-

taining order in the actual presence of the court that an

infraction can be dealt with summarily. ...’”’ In re Chase,

468 F.2d 128, 132 (7th Cir.1972), quoting United States

ex rel Robson v. Malone, 412 F.2d 848, 850 (7th Cir.1969).

Cf. United States v. Snider, 502 F.2d 645 (4th Cir. 1974);

Com. v. Cameron, 501 Pa. 572, 462 A.2d 649 (1983). Al-

though distinguishable, see also United States v. Abascal,

509 F.2d 752 (9th Cir. 1975); Comstock v. United States,

419 F.2d 1128 (9th Cir. 1969).

In Chase, supra, the defendant, along with ten co-

defendants, was tried on numerous federal charges. At the

start of the trial, the defendant refused to stand when the

trial judge entered the courtroom. He continued to refuse

to stand throughout the trial, despite repeated admonish-

ments and warnings by the court. The trial court found

lla

defendant in contempt of court on 99 separate occasions.

In upholding the contempt convictions, the circuit court

stated:

“As we pointed out, ‘the traditional rising in unison

of persons present in a court can reasonably be

thought to contribute to the functioning of the court.

It is a way of marking the beginning and end of the

session, and probably serves to remind all that atten-

tion must be concentrated upon the business before

the court, the judge’s control of the court room must

be maintained with as little burden on him as possible,

and there must be silence, except as the orderly con-

duct of business calls for speech.’ ”’ Chase, supra, at

132, quoting Malone, supra, at 848.

[4, 5] It is important to note that Chase, supra, involved

the more restrictive statutory contempt power of federal

courts.” “Congress has limited the summary contempt

power vested in [federal] courts to the least possible power

adequate to prevent actual obstruction of justice.’ In re

McConnell, 370 U.S. 230, 235, 236, 82 S.Ct. 1288, 1292,

8 L.Ed. 2d 434 (1962). Contempt powers of Texas courts

are not similarly restricted. Therefore, contemptuous con-

duct under federal law has only limited applicability in

Texas.* Common law allows a conviction for contempt un-

7 The federal contempt statute relevant in Chase, supra at 132 n. 4,

provides:

“A court of the United States shall have power to punish by fine

or imprisonment, at this discretion, such contempt of its authority,

and none other, as—

(1) Misbehavior of any person in its presence or so near thereto,

as to obstruct the administration of justice.” 18 U.S.C. § 401(1).

8 The difference in federal and state law provides a critical distinction

between our holding in the instant case and the holding in Snider,

supra. The court in Snider, supra, reached the opposite conclusion of

the court in Chase, supra, but both were interpreting the same federal

statute. Therefore, as the Justice Widener noted, “‘[s]ince [this court’s

12a

der the broader notion of disrespect as well as obstruction,

or tendency to obstruct, the proper administration of jus-

tice. Unlike federal law, or our law has not required that

an actual obstruction of justice be present.

[6] With these differences in contempt law in mind, we

find the circuit court’s opinion in Chase, supra, persuasive.

A direct refusal to rise upon the judge’s entrance inter-

rupts the normal proceedings of the court, disregards the

formality and seriousness of a court’s function, and directly

conflicts with the “imperative need of the community in

having an established forum in which controversies be-

tween man and man and citizen and sovereign may be

decided in a calm, detached, neutral atmosphere.” Snider,

supra at 665 (Widener, J. dissenting). See also, Cameron,

supra 462 A.2d at 652-653 (McDermott, J., dissenting).

Therefore, we find that a refusal to rise after being ad-

monished of the rising requirement constitutes an act of

disrespect toward the court and an act which obstructs

the proper administration of justice.

In the instant case, Judge Floyd found that applicants’

refusal to rise was an act of disrespect toward the court.

Judge Floyd confronted Krupps in chambers and admon-

ished him that he was required to rise upon entrance of

the judge into the court. Applicants ignored Judge Floyd’s

warning and intentionaily refused to rise upon entrance

of the judge into the court. These facts prove beyond a

reasonable doubt Judge Floyd’s conclusion that applicants

were in contempt of court.

ruling] is not based on federal constitutional grounds, it need have no

effect upon the various States in the Circuit.” Snider, supra at 665.

The same reasoning applies for distinguishing Cameron, supra, because

the Pennsylvania contempt statute mirrors the federal contempt statute.

* Lacking any specific statute we will follow the common law of

England provided it is not inconsistent with the Constitution or laws

of this State. V.A.C.S., Art. 1.

13a

Applicants finally argue that the rising requirement un-

constitutionally burdens their religious beliefs. They rely

upon West Virginia v. Barnette, 319 U.S. 624, 63 S.Ct.

1178, 87 L.Ed. 1628 (1943), for the argument that this

Court should recognize a religious exception to the rising

requirement. In Barnette, supra, the Supreme Court held

that, in limited circumstances, a sincere religious belief

can create an exception to the practice of saluting the

flag. 10

[7] However, it is unnecessary for this Court to decide

whether the First Amendment requires such an exception.

Even if the rising requirement created a burden on ap-

plicants’ religious freedom, Judge Floyd removed the bur-

den by giving them the option of remaining outside until

after court convened. Applicants mooted whatever First

Amendment claim that he might have had when they re-

jected that alternative. Any burden on their religious free-

dom at that point was self-imposed. Judge Floyd did not

demand that they remain in the court and comply with

the rising requirement. Instead, showing admirable re-

straint, Judge Floyd gave them a choice, and they decided

to remain. Once applicants chose to remain and refused

to rise, it became difficult to understand what religious

tenet was being expressed.

Accordingly, the relief requested is denied.

McCORMICK and WHITE, JJ., concur in the result.

ONION, Presiding Judge, concurring.

This Court should not have, contrary to longstanding

policy, granted leave to file this application for writ of

habeas corpus seeking to invoke its original jurisdiction.

10 We note that the court in Chase, supra, commented that “[tJhe

functional justification for the judge’s entitlement to require rising,

unlike, perhaps, the flag salute, is not something completely devoid of

functional significance and solely designed to signify a certain set of

beliefs.”

l4a

Of course the Court of Criminal Appeals has the power

to issue the writ of habeas corpus, subject to such regu-

lations as may be prescribed by law. Article V, § 5, Texas

Constitution; Article 11.05, V.A.C.C.P. The Court has gen-

eral and unlimited jurisdiction to issue original writs of

habeas corpus in all cases, including those of a civil nature.

Ex parte Japan, 36 Tex.Cr.R. 482, 38 S.W. 43 (App.1896);

Ex parte Norvell, 528 S.W.2d 129 (Tex.Cr.App. 1975); Ex

parte Powell, 558 S.W.2d 480 (Tex.Cr.App. 1977). “How-

ever, it is the policy of the court of criminal appeals not

to entertain jurisdiction to grant original writs of habeas

corpus, except in extraordinary cases . . . the court of crim-

inal appeals will not issue original writs of habeas corpus

in cases where other courts have jurisdiction to do so. For

example, the court of criminal appeals will not exercise

its original habeas corpus jurisdiction in attacks on the

validity of a misdemeanor conviction, since the county

courts and district courts and judges thereof have juris-

diction to grant such relief and an appeal lies from any

such court’s order denying relief.” 38 Tex.Jur.3rd, Ex-

traordinary Writs, § 62, pp. 124-126, and cases there cited.

In Ex parte Fitzpatrick, 167 Tex.Cr.R. 376, 320 S.W.2d

683 (App. 1959), it was held that while the Court of Crim-

inal Appeals has original jurisdiction to grant writs of

habeas corpus it will do so only when relator has been

unsuccessful in obtaining relief from trial court having sim-

ilar jurisdiction.

This Court does not take testimony. Ex parte Rodriquez,

169 Tex.Cr.R. 367, 334 S.W.2d 294 (App. 1960). All we

have before this Court as to what happened in County

Court at Law No. 3 of Jefferson County are “statements”

of applicants attached to the pleadings and affidavits from

the respondent judge, bailiff, etc., filed with the response

requested by this Court. Upon these conflicting versions

this Court tries, though badly divided, to write on the

proper law applicable.

15a

I would deny the application for writ of habeas corpus

seeking to invoke involving our original jurisdiction with-

out prejudice to the applicants seeking habeas corpus relief

from a trial court where the witnesses can be subjected

to examination, direct and cross, and the facts fully de-

veloped. If the applicants do not get the relief requested

an appeal lies therefrom. The applicants have other rem-

edies without this court of last resort getting involved in

every case of contempt in every court in this state.

This Court should not abandon its longstanding policy

of exercising its original habeas corpus jurisdiction with

care in cases where other courts have habeas corpus ju-

risdiction and where the facts may be properly and fully

developed before a decision on the law is made. And this

is particularly true if the case is one of first impression

in Texas as Judge Clinton states.

Apparently neither the majority nor the dissenters agree.

Since the matter is going to be decided upon

“statements”™ and affidavits, then I would join the well

written opinion of Judge W.C. Davis. From the meager

evidence it is apparent the applicants came ready for con-

frontation. What occurred was contempt, direct contempt

and nothing but direct contempt. In my opinion, to suggest

the same was constructive contempt is absurd.

What Justice McDermott of the Pennsylvania Supreme

Court wrote in his dissenting opinion in Commonwealth v.

Cameron, 501 Pa. 572, 462 A.2d 649, 38 A.L.R.4th 555

(1983), is here pertinent.

“The rising in unison is not a token of respect for

the person of the judge. For all, including the judge,

stand. The ceremony is simply an admonition to put

aside all other matters and direct and center attention

1 The applice~t«’ statements as to what occurred are not sworn to

by them. Each states he does not take oaths. Most conclude “I will

let my Yea be Yea and my Nea be Nea as is written.”

16a

to the business before the court. It separates the cor-

ridor from the courtroom, giving notice that the re-

cord is open and no distractions from the defendant’s

business can be allowed. Analyzed to its clearest pur-

pose, it is the authority of the court being exercised

in the interest of the concentration and attention to

which the defendant’s business is entitled. No one,

including the defendant, should be allowed to alter or

dilute that purpose.

“T have said that the refusal to stand when court

is convened is both an abuse of process and an ob-

struction. It is an abuse of process because it allows

a statement to be made to the court, jury, and other

parties, before any statement is allowed by the rules.

The statement may indeed be more forceful by action

than words. It does not matter what is intended by

the action. It may be threat, warning, or absurdity.

Whatever is intended, it is out of order and, for what-

ever it is worth, it is done for an advantage that

cannot be answered.

“Refusal to stand, or refusal to sit, is also an ob-

struction to orderly process, for it is intended, and

does in fact, defeat the purpose of concentration and

attention by rendering the defendant’s person the cy-

nosure of all present, if only because he is out of

order. When one is permitted to make statements by

word or action, not permitted by the rules, all present

lose their commitment to the need for quiet and order.

Indeed, some are frightened. Not always an unin-

tended side effect.

“The majority undertakes a careful analysis of the

criminal contempt statute. They err, however, in con-

cluding that conduct such as this does not obstruct

the proceedings. It is an obstruction; of a silent, pas-

sive nature, doubtless, but a powerful, undeniable per-

nicious obstruction nonetheless.”’

17a

I fully agree with Justice McDermott. When this writer

commenced his judicial career almost 32 years ago, there

was no formal commencement of a trial court session, no

traditional rising in unison of persons present in a court.

All that came a few years later in Texas. There can be

no doubt that rising in unison of persons present contrib-

utes to the functioning of the court. It marks the beginning

and ending of each session and serves to remind all that

attention must be concerned upon the business before the

court. The judge’s control of the courtroom must be main-

tained with as little burden on him as possible. The rising

requirement serves both substantive and procedural inter-

ests and constitutes an integral part of the judicial process.

Persons do not rise in respect of the judge, a temporary

office holder, but in respect of the governmental institu-

tion, the court.

Although I would deny the applications without preju-

dice as stated, I would concur in the action taken.

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. Some-

times, 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 ap-

plicants did not rise when respondent judge left the court-

room the first afternoon, that particular ‘‘act’’ is not in

18a

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 dis-

ruptive conduct in the courtroom,” Hx 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 re-

porting 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, ex-

cept in certain instances, Texas courts are relegated to

the common law in 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,

19a

Contempt § 1; Ex parte Norton, 144 Tex. 445, 191 S.W.2d

713, 714 (1946).

Article 191la, 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 re-

ligious 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 pres-

ence 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 court-

room 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 con-

stitutional rights were asserted,” p. 7, “in a reasonable

and intelligent manner,’ p. 9, the majority has found oth-

erwise; it says that he ‘‘offered applicants, through Krupp,

the alternative of remaining outside the courtroom until

20a

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 ap-

plicants.”’

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, Con-

tempt § 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 pun-

ishment. See United States v. Snider, supra, 502 F.2d at

657-658.

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.

‘2 Holding such a hearing might then present ‘‘a very serious con-

stitutional 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)’

Snider supra, at 660. That the majority may find it “difficult to un-

derstand 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.

2la

TEAGUE, Judge, dissenting.

I first point out that this is not an active disorderly

trial or courtroom case, as the majority opinion implicitly

tries to make it out to be. It is instead a passive disres-

pectful courtroom case in which several persons refused

to adhere to the ancient, traditional, ceremonial, or sym-

bolic act of persons in a courtroom rising or standing in

unison upon command of the court bailiff at the com-

mencement of the court session. I further point out that

my research reflects that dignity and decorum in a court-

room are not achieved, nor do they turn on, whether a

defendant, a spectator, or a witness refuses to stand or

rise or does not refuse to rise or stand in a courtroom

when commanded to do so. Given the facts and circum-

stances of this cause, there is, very simply, insufficient

reason to invoke in this cause the awesome power of direct

contempt to cope with the petty form of disrespect that

the applicants exhibited in the trial court. See Dorsen and

Friedman, Disorder in the Courtroom: Report of the As-

sociation of the Bar of the City of New York, Special Com-

mittee on Courtroom Conduct (Pantheon Books, 1973

edition), at page 113.

Concerning the applicants’ refusal to rise or stand, I

am in agreement with the approach that the Justice of

the Peace in this cause took when the applicant Krupps’

criminal case, for operating a motor vehicle without lia-

bility insurance, was pending in that court. I believe, as

the record reflects or indicates that the Justice of the

Peace apparently believed, that this kind of problem is

best handled much in the same way as you deal with young

children. There are just a lot of things you don’t see. In

that kind of situation, I believe that it is just better that

one not see it. It is obvious to me that the applicants in

this cause, for whatever reason, are seeking attention,

much like a young child craves attention. Given the facts

and circumstances of this cause, I, for one, would not give

the applicants the attention they seek, by putting this

22a

Court’s seal of approval on their contempt convictions—

let them go elsewhere, if they can, to get their attention.

Those who join the majority opinion, however, do not

subscribe to my kind of thinking, but trudge onward and

try to give legal reasons why the applicants’ convictions

for direct contempt of court must be sustained. The ma-

jority opinion totally fails to justify sustaining the con-

tempt orders of the trial court. Therefore, I must, like

Judge Campbell has done, see the dissenting opinion that

he has filed in this cause, because the majority opinion

presents such an inviting target, dust off my hunting li-

- cense and don one of those marvelous British safari hats

for the occasion, and a hunting I shall go.

Because of one of the issues in this cause, Ben Milam

of Texas history fame’s declaration that ‘Texans do not

stand for any man, but only for their God’’ is applicable

to this cause. What Henry Thoreau declared in A Week

on the Concord and Merrimack Rivers, which I have care-

fully reworded to fit this cause, ‘“‘All men are partially

buried in the grave of custom, and of some we see only

the crown of their heads and the robes that they wear,”

may also be applicable to this cause.

The record reflects that Charles Edward Krupps and

six other persons were held in direct contempt of court

by Hon. Donald J. Floyd, the duly elected judge of County

Court at Law No. 3 of Jefferson County, only because

they did not rise or stand when ordered to do so after

Judge Floyd entered his courtroom on the day in question.

Judge Floyd assessed punishment for each person at 30

days’ confinement in the Jefferson County Jail. The ma-

jority opinion affirms the orders of contempt. I respectfully

dissent to such decision.

In dissenting, I first point out that there is not a scintilla

of evidence in the record before us that would indicate or

reflect that the applicants’ act of not rising or standing

23a

was accompanied by any disorder, disturbance, or inter-

ruption of the court’s business. At no time did any of the

applicants ever speak maliciously, antagonistically, or bel-

ligerently either to Judge Floyd or his bailiff, or anyone

else for that matter, either inside or outside of the court-

room. Notwithstanding these facts, a majority of this Court

sustains Judge Floyd’s orders of contempt. I suppose it

does so on the feeble reasoning that not to uphold Judge

Floyd’s orders would somehow destroy order in all of our

courtrooms, which argument I find closely resembles the

one that if a trial judge does not wear a robe when he

is on the bench he will not get the respect and attention

of those in attendance, and chaos will then reign in our

courtrooms. And Judge Pete, we all know that the latter

is a bunch of poppeycock, don’t we?

I believe that if one will carefully give the ancient sub-

ject of rising and standing in the courtroom, which my

research has yet to reveal its real source, a little thought,

he will conclude, as I have done, that the ancient, tradi-

tional, ceremonial, or symbolic act of persons in a court-

room rising or standing in unison upon command of the

court bailiff, or some other person who is directed by the

judge to give the command, is not necessary to the car-

rying out of the court’s business in an orderly fashion."

The usual reasons given why persons must rise or stand

after a trial judge or an appellate court judge enters his

13 In the concurring opinion that Presiding Judge Onion has filed in

this cause, he states that ‘When this writer commenced his judicial

career almost 32 years ago, there was no formal commencement of a

trial court session, no traditional rising in unison of persons present

in court. Ail that came later in Texas.” If rising or standing in unison

of persons in a courtroom is so extremely important to preserve our

court system, then I must ask the following questions: In the preceeding

118 years, how on earth did our courts manage to function without

persons in the courtroom not rising or standing upon command? Does

this mean that from 1836 until 1954, for 118 years, we were a civilized

society, and not a barbaric society which the majority opinion implies

that we are today?

24a

courtroom are the following: It is a way of marking the

beginning of the court’s session; it probably serves to re-

mind all that attention must be concentrated upon the

business before the court; it reminds those present that

the judge’s control of the courtroom must be maintained

at all times with as little burden on the judge as possible;

and it probably instructs all persons present that there

must be silence, except as the orderly conduct of business

calls for speech. See U.S. ex rel. Robson v. Malone, 412

F.2d 848, 850 (7th Cir.1969). If there was no other way

than to require those in the courtroom to rise or stand in

unison upon command in order to accomplish the court’s

orderly conduct of its business, I might agree with the

majority opinion. However, there is another and very sim-

ple way to accomplish the above objectives.

If the per se act of refusing to stand or rise in a court-

room actually obstructs or tends to obstruct the proper

administration of justice, constitutes disrespect for the

court, or its process, interrupts the normal proceedings of

the court, causes the formality and seriousness of the

court’s business to be disregarded, and directly conflicts

with the ‘‘imperative need of the community in having an

established forum in which controversies between man and

man and citizen and sovereign may be decided in a calm,

detached, neutral atmosphere,” as the majority claims, I

must ask the author of the majority opinion, and those

who join his opinion, whether they have actually ever been

in a courtroom filled with persons, where the bailiff de-

clares in a rather loud voice, “All rise,” with the trial

judge then ascending the bench, and thereafter the court-

room sounding much like a stampeding herd of cattle?

And, after the bailiff declares in another rather loud voice,

‘*All please sit,” the courtroom’s sound repeats itself? Hav-

ing witnessed such sights many times in my legal career,

in both rural and urban courtrooms, I must state that if

the per se act of failing to rise or stand upon command

constitutes an obstruction of the proper administration of

25a

justice, the rising or standing in unison by persons in the

courtroom, upon the command of the bailiff or some other

authorized person, equally constitutes an obstruction of the

proper administration of justice. The majority opinion’s

dog might have been a good hunting dog many years ago,

but I find that today, if one carefully examines him, he

will easily find that the dog has gotten too old and will

no longer hunt as he once did.

If one also places the majority opinion under the mi-

croscope, in order to find valid reasons that might justify

its holding that the applicants are guilty of direct or crim-

inal contempt of court, he will not find any valid reasons

therein why the mere act of the applicants refusal to stand

or rise “interrupted the normal proceedings of the for-

mality and seriousness of the court’s function’; or that

their mere act of not standing or rising ‘‘directly conflicted

with the imperative need of the community in having an

established forum in which controversies between man and

man and citizen and sovereign may be decided in a calm,

detached, neutral atmosphere.”

The majority opinion also makes the ludicrous statement

that if the rising or standing requirement that was imposed

in this cause created a burden on Krupps’ religious beliefs,

that burden was removed when Judge Floyd gave him the

option of remaining outside the courtroom until after court

convened. Would this Court hold that a state statute which

authorizes a minute “for meditation or voluntary prayer”

in public schools would be a valid statute provided that

the statute also contained a provision that those persons

who did not wish or desire to participate were given the

option of leaving the classroom? Cf. Wallace v. Jaffree, -

U.S.__, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). Would this

Court uphold a law that made it mandatory that a person

in attendance at a public school must salute the American

flag if the statute also contained a provision that those

persons who did not wish or desire to salute the flag were

26a

given the option of leaving? Cf. West Virginia v. Barnett,

319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). I do

not believe that even the present United States Supreme

Court would sustain these kinds of state statutes.

In holding that if the rising or standing requirement

created a burden on the religious beliefs and freedoms of

the applicant Krupps, because he was a party litigant in

court that day, the majority opinion overlooks the fact that

the Constitutional right to a public trial does not mean

one in which a party litigant is permitted to be present

in the courtroom part of the time, but not all of the time,

as the majority opinion implicitly holds; he is entitled to

be present all of the time—provided he behaves himself.

Cf. Allen v. Illinois, 397 U.S. 3387, 90 S.Ct. 1057, 25

L.Ed.2d 353 (1970). Also see Antieau, Vol. 1, Modern Con-

stitutional Law, Section 5:57. I emphasize the fact there

is not a scintilla of evidence that the applicant Krupps

ever misbehaved when he was in Judge Floyd’s courtroom.

Futhermore, the record is totally absent of any evidence

that any applicant made or attempted to make Judge

Floyd’s courtroom a forum or circus in order to make their

religious beliefs known, or to solicit converts, nor is there

any evidence that any applicant ever caused any actual

interruption, interference, or obstruction of the judicial

process or the operation of Judge Floyd’s courtroom.

Trial judges do not have the untrammeled discretion to

punish every act that they might find to be personally

offensive as a criminal contempt. Futhermore, summary

contempt procedure is to be invoked and applied only as

a last resort. Taylor v. Hayes, 418 U.S. 488, 94 S.Ct.

2697, 41 L.Ed.2d 897 (1974); In re Oliver, 333, U.S. 257,

68 S.Ct. 499, 92 L.Ed. 682 (1948); United States v. Flynt,

756 F.2d 1352 (9th Cir. 1985); In re Gustafson, 650 F.2d

1017 (9th Cir. 1981); Ex parte Elmore, 161 Tex. 585, 342

S.W.2d 558 (Tex.Sup.Ct. 1961).

27a

The use of the summary contempt power by a trial judge

must be consistent with the reasons for criminal or direct

contempt, and the bare fact that an individual’s behavior

might be offensive to a particular trial judge’s personal

sensibilities does not necessarily render it contumacious

behavior. See Brown v. United States, 356 U.S. 148, 153,

78 S.Ct. 622, 625, 2 L.Ed.2d 589 (1958).

I return to the question that Judge Campbell in the

dissenting opinion that he has filed in this cause partly

answers as to the applicants except Krupps, whether the

applicants’ conduct in intentionally or knowingly failing or

refusing to rise or stand when Judge Floyd entered his

courtroom is sufficient without more to sustain a direct or

criminal contempt conviction?

Notwithstanding my views toward the ancient, tradi-

tional, ceremonial, or symbolic act of persons in a court-

room rising or standing in unison upon command of the

court bailiff, or some other authorized person, at the com-

mencement of the court session, before the power of sum-

mary contempt may be invoked and applied it is universally

held that the conduct must interfere with and disrupt the

orderly process of a court before it will constitute direct

contempt.

The majority opinion states that it finds the Federal

Seventh Circuit Court of Appeals’ opinion of In re Chase,

468 F.2d 128 (7th Cir. 1972), “persuasive.” Although a

number of federal courts have determined that under the

federal statutory counterpart to our contempt statute, the

rising or standing requirement may be enforced with crim-

inal contempt, they also hold that this kind of contempt

power may be exercised only when the failure or refusal

to rise or stand is accompanied by a disruption of the

proceedings. See, for example, United States v. Wilson,

421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975); United

States v. Flynt, 756 F.2d 1352 (9th Cir. 1985); In re Chase,

supra; United States v. Abascal, 509 F.2d 752 (9th Cir.

28a

1975), cert. denied 422 U.S. 1027, 95 S.Ct. 2621, 45

L.Ed.2d 684 (1975); In re Dellinger, 461 F.2d 389 (7th

Cir. 1972); United States ex rel Robson v. Malone, 412 F.2d

848 (7th Cir. 1969); Comstock v. United States, 419 F.2d

1128 (9th Cir. 1969). Also see Commonwealth v. Reid, 494

Pa. 201, 481 A.2d 218 (1981).

In finding that In re Chase, supra, is “persuasive” au-

thority to sustain the contempt convictions of the appli-

cants, the majority opinion overlooks the fact that the

Seventh Circuit in Chase, supra, rejected out of hand the

government’s argument that the failure to rise or stand

im itself created a per se obstruction of judicial adminis-

tration punishable by criminal contempt. In affirming the

defendant’s contempt conviction, the Chase court found it

significant that the deputy marshal had to assist the

defendant Chase to his feet and that the trial was inter-

rupted at least four times in order for the judge to read

the contempt citations. Jt was these interruptions, and not

the mere refusal to rise or stand, that were found to con-

stitute an “actual, material obstruction” contemplated by

the federal contempt statute. The Chase court was also

careful to point out that the failure or refusal to rise or

stand in the courtroom may amount to an actual and ma-

terial obstruction of judicial administration if it distracts

others in the courtroom or provokes a reaction on the part

of others in the courtroom or is accompanied by a failure

to become silent or focus attention on the business before

the court. In re Chase, supra, 468 F.2d at 133.

In our cause, there is not any evidence that might war-

rant the inference that the act of the applicants not rising

or standing provoked a reaction on the part of those other

persons who were then in the courtroom or that the ap-

plicants were noisy or boisterous when they did not choose

to rise or stand after Judge Floyd entered his courtroom

on the day in question.

29a

Just recently, the Supreme Court of Pennsylvania, in

Commonwealth v. Cameron, 501 Pa. 572, 462 A.2d 649

(Pa.Sup.Ct. 1983), also see 38 A.L.R. 4th 555, answered

the question whether a defendant’s refusal to rise or stand,

without more, is. sufficient to sustain a direct contempt

conviction in the negative. The Pennsylvania Supreme

Court held that although the rising or standing require-

ment may constitute “‘misbehavior in the presence of the

court,” it is the resulting obstruction of the proceedings

that is critical to sustaining a criminal contempt citation.

The annotation in 38 A.L.R. 4th 563, entitled ‘Failure

to rise in state courtroom as constituting criminal con-

tempt,”’ points otit that “The relatively few state cases

considering the propriety of punishing any person for fail-

ing or refusing to stand in a courtroom when required to

do so appear to indicate that such misconduct, standing

alone, is not sufficient to justify a citation for criminal

contempt, and that there must be some active disruption

of court proceedings before such a penalty may be im-

posed.’’ (564). (My emphasis.) I pause to state the follow-

ing: Just last week, see Chambers v. State, 711 S.W.2d

240 (Tex.Cr. App. 1986), an aggressive and assertive ma-

jority of this Court found an A.L.R. annotation “persu-

asive’’ as authority to support its holding that unobjected

to hearsay has probative value in judging the sufficiency

of the evidence. However, this week it does not even ac-

knowledge that work. What’s going on here? If that work

was authoritative last week, should it not also be author-

itative this week? Or, is the reason the author of the

majority opinion ignores it this week because what is stated

herein is not to his and those judges who join his opinion’s

likings?

If one carefully analyzes the majority opinion, I believe

that he or she will conclude, as I have done, that the

bottom line in the opinion represents nothing less than the

fact that the author of the majority opinion, and those

30a

members of this Court who join his opinion, believe that

the applicants were discourteous to the trial judge in this

cause by refusing to rise or stand after he entered his

courtroom on the day in question, and that such was both

an abuse of process and an obstruction of the administra-

tion of justice, and because of this they should be sum-

marily punished for such act, which is, in the view of those

who vote for the majority opinion, an act that is apparently

“honored only by civilized and sensible men.” In short,

they believe that without this ancient, traditional, cere-

monial, or symbolic act, chaos would reign in our court-

rooms. If there was no other way to mark the beginning

of the court’s session; if there was no other way to remind

all that attention must be concentrated upon the business

before the court; if there was no other way to remind all

that the judge’s control of the courtroom must be main-

tained with as little burden on the judge as possible; and

if there was no other way to impress upon persons in the

courtroom that at all times there must silence, except as

the orderly conduct of business calls for speech, I might

agree with the majority opinion. However, if one sub-

s to the agency theory, as the majority opinion ap-

parently does, see the dissenting opinion filed by Judge

Campbell in this cause, why cannot the above be reduced

to writing and have the agent, whoever that might be,

such as the bailiff, court reporter, clerk, court coordinator,

probation officer, prosecuting attorney, defense attorney,

or perhaps all doing it in unison, utter these admonitions

loudly to those in attendance in the courtroom? If this is

done, and after the trial or appellate court judge takes

his bench, a member of the audience violates one or more

of the admonitions, and that person is held in direct or

criminal contempt of court, then the majority opinion might

make a little sense. However, given the facts and circum-

stances of this cause, it presently makes no sense at all.

Because the majority opinion erroneously holds that a

person’s mere refusal to rise or stand upon command after

3la

the trial judge enters his courtroom, without more, is suf-

ficient to sustain a direct criminal contempt conviction, I

am compelled to respectfully dissent. I believe that opin-

ions like this one do not cause our trial courts to gain

respect from our citizenry, but, to the contrary, such opin-

ions can actually breed disrespect for our courtrooms and

our trial judges, and cause disturbances where before there

were none.

CAMPBELL, Judge, dissenting.

This writer derives no particular pleasure from engaging

in the “sport” of dissent writing, but the majority opinion

in the instant case presents such an inviting target that

I felt compelled to dust off my hunting license and don

one of those marvelous British safari hats for the occasion.

I begin this sojourn by stating that I am in complete

agreement that “the traditional rising in unison of persons

present in a court can reasonably be thought to contribute

to the functioning of the court,” and that “it is a way of

marking the beginning and end of the session and probably

serves to remind all that attention must be concentrated

upon the business before that court, the judges control of

the courtroom must be maintained with as little burden

on him as possible, and there must be silence, except as

the orderly conduct of business calls for speech.’”’ In re

Chase, 468 F.2d 128, 132 (7th Cir. 1972), quoting from

United States ex rel Robson v. Malone, 412 F.2d 848 (7th

Cir. 1969).

But the majority opinion with both its writing and re-

search style strikingly, nay hauntingly, deja vu, elevates

the ‘failure to rise in unison requirement’”’ to per se con-

tumacious conduct, and ultimately, direct contempt. This

conclusion defies the dearth of case law in this area, and

in doing perhaps the most mischief, defies one of those

fundamental tenets of a free society which separates us

from other mammals—the due process of law.

32a

I. The Conduct

A. Applicant Krupps

I am in agreement with the majority’s disposition of the

conduct of applicant, Krupps.* Judge Floyd confronted

Krupps in chambers and admonished him to rise when the

judge entered the courtroom. Krupps, in defiance of this

direct order from the judge, then intentionally refused to

rise when the judge entered the courtroom. According to

the federal case law cited in the majority opinion, this is

clearly direct, contumacious conduct which is summarily

punishable, berause it was “personally observed by the

judge” (In re Oliver, 332 U.S. 257, 275-276, 68 S.Ct. 499,

509, 92 L.Ed. 682) after the judge had personally con-

fronted and admonished Krupps.*

B. The Six Other “‘contemptuous”’ Applicants

The majority opinion begins to unravel like a bad suit

of clothes, when it postulates that court personnel, such

as bailiffs, and implicitly, one imagines, court reporters,

clerks, docket coordinators, probation officers, prosecutors,

etc., may, through some sort of agency theory, observe

contumacious conduct, report said conduct to the unsus-

pecting judge, thereby magically transforming constructive

contempt into direct contempt, all in the name of and by

the authority of being “officers of the court.”

Judge Floyd stated in the documents of commitment

that the applicants were held in contempt for ‘‘being dis-

respectful by failing to rise upon the entrance of the Court

after being duly admonished and warned of consequences

‘The punishment that Krupps received will be discussed, infra.

‘6 All emphasis is supplied throughout by the author of this opinion

unless otherwise indicated.

33a

of their failure to do so.’”"* But the gravamen of contempt

contains two elements which the judge must have person-

ally observed to have found direct contempt: (1) an ad-

monishment and warning of the consequences of failing to

rise and (2) a failure to rise. I now examine the record

to determine whether Judge Flicyd was present and per-

sonally observed both elements for the six applicants.

Judge Floyd clearly observed the second element when

he personally observed all of the applicants fail to rise on

June 14, 1985. However, the record reflects that six of

the applicants (H. Eddington, H. Matthews, V. Rose, L.

Rose, R. Henley and J. Henley) did not receive an ad-

monishment and warning of the consequences of failing to

rise in the presence or hearing of Judge Floyd. See n. 3,

infra. At no time was Judge Floyd present when these

applicants were admonished and warned of the conse-

quences of failing to rise.

The circumstances surrounding the direct contempt con-

viction of the six applicants who were not given an ad-

monishment and warning in the presence of Judge Floyd

are analogous to the circumstances in Johnson v. Missis-

‘6 The trial court did not deliver this warning in person. Nor was he

present when the bailiff delivered this warning. In his affidavit before

this Court, respondent Judge Floyd stated:

“T advised Deputy Collins to inform Mr. [the applicants] that if

they continued to show disrespect for the Court by not standing

when Court convenes, I would hold them in contempt; and place

them in jail for 30 days. Deputy Collins returned to the courtroom

to inform the [the applicants] of my decision. Again, they informed

Deputy Collins they would not stand. Deputy Collins advised me

of their decision and I decided to let them ‘sleep on it’ without

further discussion once we had recessed until 9:00 am on June,

1985. ‘‘... [the next morning,] Deputy Collins advised them that

the Court would hold them in contempt and sentence them to 30

days in jail if they refused to stand when the Judge entered the

courtroom. ...

“Deputy Collins advised the Court again that they would not stand.”

34a

sippt, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971).

See also Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406

(1928). In Johnson, supra, the Supreme Court reversed a

contempt judgment because of due process violations. In

addition to the trial court’s failure to take immediate sent-

encing action, the Court noted:

“Moreover, from this record we cannot be sure that

Judge Perry was personally aware of the contemp-

tuous action when it occurred. The State’s version of

what happened is described as follows in its motion

that petitioner show cause why he should not be pun-

ished for contempt:

‘(TJhe Sheriff and Deputy Sheriff Hayward seized

Robert Johnson and immediately carried him before

the Circuit Judge, Marshall Perry, and related to

the Judge what had transpired. (Italics added)’ [em-

phasis in original]

As we said in In re Oliver, 333 U.S. 257, 275-276,

68 S.Ct. 499, 509, 92 L.Ed. 682,

‘If some essential elements of the offense are not

personally observed by the judge, so that he must

depend upon statements made by others for his

knowledge about these essential elements, due proc-

ess requires ... that the accused be accorded notice

and a fair hearing. ...’”’ Id., 91 S.Ct. at 1780.

Judge Floyd, by relying upon information received from

his bailiff for his knowledge of the contemptuous conduct

of six of the applicants, did not personally observe all of

the elements of the contempt. Therefore, the contempt was

in the nature of a constructive contempt. I believe that

six of the applicants (H. Edgington, H. Matthews, V. Rose,

L. Rose, R. Henley and J. Henley) should have been ac-

corded the due process required in a constructive contempt

adjudication.

35a

C. The Logical Import of Today’s Majority Holding

Significantly, Krupps was at least given the opportunity

to express to Judge Floyd his reason for not rising in the

courtroom. Krupps replied obliquely that he was a “‘fol-

lower of Christ.” The judge requested that Krupps elab-

orate, and implied that something could be worked out by

allowing Krupps to remain outside the courtroom when

the Judge entered. Krupps declined and, in fact, expressed

his intent to defy the judge again, which he subsequently

did.

What of the other six applicants? The majority says that

the judge, through Krupps, offered them the same alter-

native that had been offered to Krupps. Does this make

Krupps an “officer of the court?” The record is silent as

to whether Krupps conveyed any message from the judge

to any of the other six applicants. But even if the record

affirmatively showed that Krupps did convey such a mes-

sage, would the failure of the six applicants to rise in

unison then constitute contempt of Judge Floyd, or would

it constitute contempt of Krupps as an “officer of the

court’?

The majority opinion simply cannot square its reasoning

or holding with any sense of due process. The six appli-

cants other than Krupps were given no admonishment, no

alternative, and no explanation by the judge of the court.

To favor them with the same summary treatment as

Krupps is tantamount to standing the law of contempt on

its bruised and battered ear. The logical conclusion to be

drawn from the majority opinion is that the failure of

spectators to rise in unison in a courtroom when a judge

enters same constitutes direct contempt, punishable sum-

marily without a hearing. To the physically handicapped—

the deaf person, the paraplegic, and to those persons who

have little or no command of the English language, I can

only advise—avoid Texas courtrooms.

36a

II. Was the length of the punishment given to Applicant

Krupps an abuse of discretion?

The Legislature has restricted the sentencing power of

Texas courts in contempt cases by limiting punishment to

a fine of not more than $500, or not more than six months

confinement in county jail, or both. V.A.C.S., art. 1911a,

§ 2(a). However, where the use of direct contempt is in-

volved, the Supreme Court has held:

‘Appellate courts have here a special responsibility

for determining that the power is not abused, to be

exercised if necessary by revising themselves the sen-

tences imposed. This Court has in past cases taken

pains to emphasize its concern with the use to which

the sentencing power has occasionally been put, both

by remanding for reconsideration of contempt sen-

tences in light of factors it deemed important, and

by itself modifying such sentences. [citations omitted]

The answer to those who see in the contempt power

a potential instrument of oppression lies in assurance

of its careful use and supervision, not in imposition

of artificial limitation on the power.”’ Green v. United

States, 356 U.S. 165, 188, 78 S.Ct. 632, 645 (1958).

This Court has broad powers to entertain original writs

of habeas corpus. Art. V, § 5, Tex. Const; Ex parte Davis,

171 Tex. Cr.R. 629, 353 S.W.2d 29, 32 (App. 1962). I

believe that the careful review by this Court of claims of

excessive direct contempt sentences falls within that broad

power.!7 Such supervision in contempt cases is no less

17 While it is true that the Legislature has limited the broad sent-

encing power of trial courts through Article 191la, supra, there are

no standards for determining when a sentence, though within the sta-

tutory range, would be considered excessive. In addition, there is no

direct appeal from a contempt conviction. Jacobs, supra. Therefore, in

reviewing direct contempt sentences, we should adopt the criteria set

forth in Yates, [infra.] Without these criteria, a trial court could sen-

tence a contemnor to six months in jail and a $500 fine and avoid

review, no matter how insignificant the contemptuous conduct.

37a

compelling than the constant review that we give to claims

of excessive bail. See Ex parte Davila, 623 S.W.2d 408

(Tex.Cr.App. 1981); Ex parte Rubac, 611 S.W.2d 848

(Tex.Cr.App. 1981).

The Supreme Court has used several factors to deter-

mine whether a contempt sentence is appropriately within

the discretion of a trial judge. Persistency of the defendant

in repeating the contumacious conduct is an important con-

sideration. Yates v. United States, 355 U.S. 66, 78 S.Ct.

128, 2 L.Ed.2d 95 (1957). “More over, the court should

consider ‘... the extent of the willful and deliberate de-

fiance of the court’s order [and], the seriousness of the

consequences of the contumacious behavior. ...’”’ Id., 78

S.Ct. at 134, quoting United States v. United Mine Work-

ers, 330 U.S. 258, 308, 67 S.Ct. 677, 701, 91 L.Ed. 884

(1947).

Examining Krupps’ conduct in view of the criteria set

forth in Yates, supra, I believe that a sentence of thirty

days is disproportionate to the persistency, willfulness and

seriousness of the conduct and is therefore excessive, and

I would remand to the trial court for reassessment of a

punishment that fits the conduct.'*

MILLER, J. joins.

MILLER, Judge, dissenting.

8 Courts have reduced contempt sentences that resulted from a

defendant’s refusal to rise upon the judge’s entrance on a number of

occasions. In Malone, supra, the court reduced a 30-day sentence to

four hours and a 15 day sentence to two and a half hours. In United

States v. Abascal, 509 F.2d 752 (9th Cir. 1975), the court reduced a

90 day sentence to two weeks, though the conduct there included more

than the mere refusal to rise. In Comstock v. United States, 419 F.2d

1128 (9th Cir. 1969), the court affirmed a sentence of 15 days in jail,

but the conduct included more than the refusal to rise. In Chase, supra,

the court reduced a ten month sentence to 30 days, though the defendant

had refused to rise 99 separate times.

38a

I join Judge Campbell’s dissent and further disagree

with the majority opinion’s handling of appellant’s final

argument by stating:

“Even if the rising requirement created a burden

- on applicants’ religious freedom, Judge Floyd removed

the burden by giving them the option of remaining

outside until after court convened.”’

At 151. I would reach the merits of applicant Krupps’

complaint about burdening his religious freedom and, un-

der these facts, decide against him.

It occurs to me that the majority’s reasoning concerning

alternative choice as a substitute for the exercise of a

constitutional right suffers from the same flaw as “sep-

- arate but equal” thinking or providing that certain people

can ride the bus but only if they sit in the back (I’m not

going to even mention the ‘moment of silence’ as an

alternative to school prayer controversy). Granted, we are

talking about that balance of least intrusive means of infr-

inging on a constitutional right in favor of courtroom de-

corum and the relationship of the balance to the concept

of direct contempt, not just the right to exercise the con-

stitutional right. Still the two are so intertwined that the

mere fact that an alternative was given in this case does

not justify the majority’s cursory dismissal of applicant’s

claim that the balance of right versus decorum should be

tipped in his favor.

I dissent.

39a

APPENDIX B

IN THE COUNTY COURT #3

JEFFERSON COUNTY AT LAW

JEFFERSON COUNTY, TEXAS

THE STATE OF TEXAS

VS.

CHARLES EDWARD KRUPPS, JOHN ELLIS HENLEY, HAROLD

O. EDGINGTON, VINCENT ROSE, LATTIE JO DARBY ROSE,

HowarD O. MATTHEWS, SR. AND RosIE HENLEY

ORDER

On this 14th day of June 1985, Charles Edward Krupps,

John Ellis Henley, Harold O. Edgington, Vincent Rose,

Lattie Jo Darby Rose, Howard O. Matthews, Sr. and Rosie

Henley were held in contempt of court and assessed 30

days in the county jail for being repeatedly disrespectful

to the Court by failing to rise upon the entrance and exit

of the Court after being duly admonished and warned of

the consequences of their failure to do so.

It is therefore Ordered, Adjudged, and Decreed that

without further notice or hearing, pursuant to Ex Parte

Harvill 415 S.W.2d 174 (1967), Charles Edward Krupps,

John Ellis Henley, Harold O. Edgington, Vincent Rose,

Lattie Jo Darby Rose, Howard O. Matthews, Sr. and Rosie

Henley are hereby held in contempt of Court and shall

serve 30 days in this county jail.

/s/ DONALD J. FLOYD

JUDGE PRESIDING

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.