IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 73,986


EX PARTE MICHAEL DOTSON, Applicant






ORIGINAL APPLICATION FOR

A WRIT OF HABEAS CORPUS

FROM NUECES COUNTY


Womack, J., filed a concurring opinion.





           I join the Court's judgment granting relief under our writ of habeas corpus. I reach that result on a different basis.

          I agree with the Court that Rule of Civil Procedure 176.8(a) does not authorize a contempt action in a criminal case. This seems obvious.

        Although the district court specified Rule 176.8(a) as its authority, any law that authorized the court's order would require us to deny relief to this applicant. The law that comes closer to authorizing the judgment of contempt is Section 21.002(a) & (b) of the Government Code. (1) Section 21.002 is not limited to civil cases as Rule 176.8(a) is. This statute, in its pre-codification form, (2) came before us in Ex parte Wilkinson, 641 S.W.2d 927 (Tex. Cr. App. 1982).

        Wilkinson and another person refused to testify before a grand jury. A district court held them in contempt, fined them $500, and ordered them imprisoned for 6 months. We issued the writ of habeas corpus.

        The witnesses argued that Article 20.15, not the general contempt statute that is now codified as Section 21.002, controlled the district court. We agreed.

                If it can be argued, however, that said [statutes] are in pari materia, then under the rules of statutory construction the special statute, Article 20.15, would govern over the general statute.

                    The two statutes are not, however, in pari materia. Article 20.15 and its forerunners have long been a part of our criminal procedural laws. The procedure involves only the district court and a witness who may be held in contempt for refusing to testify before the grand jury. [The general statute], enacted in 1971, deals with the contempt power of all courts concerning witnesses, officers of the court and others in a variety of situations. It is clear the two statutes are contained in different legislative acts, provide for different penalties, and are designed to serve different purposes and objectives. The provisions of the statutes are irreconcilable and the special statute, Article 20.15, must prevail under the rules of statutory construction. Although [the general statute] is the latter enactment, there is no manifest intent that the general provisions thereof relating to any act of contempt before any court control. (3)



The Court uses similar reasoning today and reaches the same result. (4) I agree, on the basis of Wilkinson.



En banc.

Filed June 5, 2002.

Publish.

1. "(a) Except as provided by Subsections (g) and (h), a court may punish for contempt.

"(b) The punishment for contempt of a court other than a justice court or municipal court is a fine of not more than $500 or confinement in the county jail for not more than six months, or both such a fine and confinement in jail.

(c) The punishment for contempt of a justice court or municipal court is a fine of not more than $100 or confinement in the county or city jail for not more than three days, or both such a fine and confinement in jail.

"(d) An officer of a court who is held in contempt by a trial court shall, on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence. The presiding judge of the administrative judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the judge of the offended court to determine the guilt or innocence of the officer of the court.

"(e) This section does not affect a court's power to confine a contemner to compel him to obey a court order.

"(f) Article 42.033, Code of Criminal Procedure, and Chapter 157, Family Code, apply when a person is punished by confinement for contempt of court for disobedience of a court order to make periodic payments for the support of a child.

"(g) A court may not punish by contempt an employee or an agency or institution of this state for failure to initiate any program or to perform a statutory duty related to that program:

"(1) if the legislature has not specifically and adequately funded the program; or

"(2) until a reasonable time has passed to allow implementation of a program specifically and adequately funded by the legislature.

"(h) [This subsection, the subject of which was justice and municipal courts' dealing with the acts of juveniles, was repealed by the act of June 16, 2001, 77th Leg., R.S., ch. 1297, 71(4), 2001 Tex. Gen. Laws 2978, 3009.]" Tex. Gov't Code 21.002.

2. Act of June 9,1971, 62nd Leg., R.S., ch. 831, 1-3, 1971 Tex. Gen. Laws 2535, 2535, as amended by Act of June 16, 1973, 63rd Leg., R.S., ch. 657, 1, 1973 Tex. Gen. Laws 1784, and Act of June 16, 1977, 65th Leg., R.S., ch. 827, 2, 1977 Tex. Gen. Laws 2076, 2076, and Act of June 16, 1981, 67th Leg., R.S., ch. 674, 4, 1981 Tex. Gen. Laws 2563, 2537.

3. Wilkinson, 641 S.W.2d at 932.

4. See ante at 4.