In the Court of Criminal Appeals

of Texas

NO. 73,986






Keller, P.J., filed a dissenting opinion in which KEASLER, J. joined.

I believe that the district court had inherent power to punish contempt, and that power is in no way circumscribed by the statutory scheme. Alternatively, to the extent the statutory scheme might be said to circumscribe this power, it violates the Separation of Powers Clause of the Texas Constitution.

I. The Texas Constitution vests "[t]he judicial power" in the courts, including the district courts of this state. (1) The compulsion of witnesses and the punishment of contempt are both aspects of this power. In the federal system the United States Supreme Court has recognized their judicial character. (2) The Supreme Court has also recognized that federal courts have inherent power - power that exists even absent statutory authorization - to punish contempts. (3)

In Chambers, the Supreme Court addressed a federal district court's inherent power to impose financial sanctions for abuses of the judicial process. (4) The district court had assessed attorney's fees for bad faith conduct. (5) Although a scheme for assessing sanctions was provided by both statute and rule, the Court held that the scheme did not displace the trial court's inherent power to assess sanctions. (6) While Congress has the authority to limit the exercise of the inherent power of lower federal courts because those courts were created by act of Congress, the Supreme Court does "not lightly assume that Congress" has intended to do so. (7) Significantly, the Court held that a district court could resort to inherent power to punish abuse of the judicial system even when there existed statutory mechanisms for imposing punishment for the specific type of abuse in question:

There is, therefore, nothing in the other sanctioning mechanisms or prior cases interpreting them that warrants a conclusion that a federal court may not, as a matter of law, resort to its inherent power to impose attorney's fees as a sanction for bad-faith conduct. This is plainly the case where the conduct at issue is not covered by one of the other sanctioning provisions. But neither is a federal court forbidden to sanction bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under the statute or the Rules. A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees. Furthermore, when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power. But if in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power. (8)

We have recognized that courts possess inherent powers in criminal cases (9) and that these powers date back to early English common law. (10) We have defined inherent powers as "those powers required for the judiciary to perform its constitutional duties, preserve its jurisdiction, and preserve it[s] independence and integrity as a co-equal department of government." (11) In some cases we have recognized the trial court's inherent power to control how evidence is presented (12) and to assess conditions of bail (13) or probation. (14) In these cases, we also recognized that legislatively enacted procedures did not preclude other procedures adopted by the trial court pursuant to its inherent power. We found that a statutory method for providing closed-circuit televised testimony did not preclude the use of closed-circuit television for witnesses who did not qualify under the statute, that a statute authorizing a trial court to set conditions of bail in a felony case did not defeat a trial court's inherent power to set conditions of bail in a misdemeanor case, and that the Legislature's creation of a Community Rehabilitation Center, with strict guidelines, did not prevent a trial court from creating a "Court Residential Treatment Center" that did not adhere to those guidelines. (15)

And our courts have long recognized that the power of contempt is inherent in the judicial department. (16) This Court has described the power as "broad and plenary" in the judiciary. (17) Another court has stated, "[a]lthough the exercise of this authority should be tempered with common sense and sound discretion, nevertheless we accord the judge's contempt power wide latitude because it is essential to judicial independence and authority." (18)

At first glance, another line of Texas cases may seem at odds with the assertion of inherent power with regard to contempt proceedings, at least insofar as subpoenas are involved. While, the Legislature has codified the ability to punish contempt generally in Section 21.002 and has provided specific penalties, (19) it has also enacted Chapter 24 of the Code of Criminal Procedure to deal specifically with the matter of subpoenas. Even more specifically, Article 24.05 provides that "[i]f a witness refuses to obey a subpoena, he may be fined at the discretion of the court, as follows: in a felony case, not exceeding five hundred dollars; in a misdemeanor case, not exceeding one hundred dollars." (20)

Some of our earlier cases, although not squarely addressing the issue in the instant matter, are consistent with the view that Article 24.05 and Section 21.002 are irreconcilable. In Ex Parte Wilkinson, the trial court held a witness in contempt for failing to testify before a grand jury in violation of Article 20.15 of the Code of Criminal Procedure, which provides penalties, including jail, for refusing to testify after being compelled to appear before a grand jury. (21) There we held that the more specific statute, Article 20.15, prevailed over the more general contempt statute, Article 1911a of the Civil Statutes (now Section 21.002 of the Government Code). (22)

In Ex Parte Marek, (23) a witness appeared before a grand jury to testify but failed to bring with him certain documents as required in a subpoena duces tecum that he received. We concluded that the trial court erroneously held the witness in contempt under Article 20.15 because the witness actually appeared and testified before the grand jury. (24) We explained that Chapter 24, not Chapter 20, of the Code of Criminal Procedure treats subpoena matters and provides various fines for failure to comply. (25) Nothing in the Code of Criminal Procedure, however, permitted confinement in jail until subpoenaed material is brought before a grand jury. We noted, moreover, that the trial court erroneously found a "direct contempt" of the court where the court itself had issued an order directing the witness to produce the documents. (26) The command, we said, was "to bring materials to the grand jury, not to the court," and thus the court's general contempt power under Article 1911a was not implicated.

However, the holdings in these cases have been undercut by our subsequent holding in Ex Parte Edone. (27) In that case, we overruled an earlier decision holding that violation of a court order to answer grand jury questions was a contempt of the grand jury and not of the court itself. (28) It logically follows that violating a court order to produce documents in a grand jury would likewise constitute contempt of court, and not merely of the grand jury, contrary to Marek's holding. In supporting its position, Edone characterized the grand jury as "an appendage of the court, powerless to perform its investigative function without the court's aid, because powerless itself to compel the testimony of witnesses. It is the court's process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so." (29) With this language, Edone characterized the subpoena power as a power of the court and not merely a ministerial function performed by the clerk.

Edone also indicated that a district court's punishment options for contempt were limited because the court's power to supervise the grand jury was specifically conferred by statute, and Article 20.15 was the method the Legislature conferred upon the trial court in exercising its supervision. (30) This conclusion seems flawed because, under the Texas constitution, grand juries are a part of the judicial system, (31) and therefore the courts have inherent power to supervise them. Regardless of the status of grand juries, trial courts must have the inherent power to subpoena witnesses for trial, as the power to subpoena witnesses is necessary for the trial court to exercise its constitutional duties. And that subpoena power, to be effective, must not require a subsequent court order for its enforcement. As the Supreme Court so eloquently stated:

A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. (32)

And the Supreme Court has also recognized the contempt power to be so important an aspect of the judicial system that it requires federal courts to abstain from decisions that would interfere with state contempt proceedings. (33)

Given a trial court's inherent powers to subpoena witnesses and punish contempt of its own proceedings, and the importance of those powers to the functioning of the judiciary, we should follow the Supreme Court's admonition to not lightly hold that the Legislature has abrogated such power through its statutory enactments. Here, the Legislature has simply assessed a penalty for failing to comply with a subpoena of any kind. Chapter 24 authorizes subpoenas in numerous situations, which are not necessarily confined to court proceedings. (34) The penalty provided by the Legislature for failing to obey subpoenas generally should not be held to displace the trial court's inherent power to punish by contempt the failure to obey a court subpoena.

One final reason for declining to interpret the Legislative scheme as displacing the trial court's inherent power is the possibility that such a scheme would violate the Separation of Powers provision of the Texas Constitution. This Court has a duty to narrowly construe statutes to avoid a constitutional violation. (35) The Separation of Powers issue is addressed in detail in part II of this opinion.


The venerable principle of separate and distinct powers has a distinguished history in American public law. (36) Long have we recognized that, as Madison observed, the "accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." (37) To prohibit the ambitious encroachments of one branch upon another, the Texas Constitution, like the federal Constitution, divides power into three separate branches. Unlike the federal Constitution, Article II of the Texas Constitution further provides that each of the departments

shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. (38)

For our purposes here, it is also notable that the state Constitution says specifically that, "[t]he Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled, 'The Legislature of the State of Texas'" (39) and that, "[t]he judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law." (40) In elaborating upon the constitutional text, this Court has stated that Article II may be violated in either of two ways: "it is violated when one branch of government assumes, or is delegated, to whatever degree, a power that is more 'properly attached' to another branch," or it "is also violated when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers." (41)

As I discussed earlier, our courts have long recognized that the powers to issue subpoenas and punish contempt are inherent in the judicial department. Furthermore, we have described contemptuous acts themselves broadly, explaining that contempt is conduct that obstructs or tends to obstruct the proper administration of justice. (42) The act itself must amount to contemptuous conduct, regardless of the purpose or intent of the actor. (43)

"The judicial power" does not (and cannot, in light of Article II) mean some of the judicial power. Rather, it means all of the judicial power, unless the Constitution itself gives a specific judicial power to another branch of the government. (44) Because the contempt power inheres in the judicial department, the Legislature may not assume that power by statute unless the Constitution expressly permits it to do so. The Constitution, however, does no such thing. True, the Constitution enables either chamber of the Legislature to imprison those who commit disrespectful or disorderly conduct in the presence of the chamber, or who obstruct legislative proceedings. (45) But we have held that, while the Legislature may punish such contemptuous or disruptive conduct, this power is limited to those circumstances in light of Article II and the judicial nature of the contempt power. (46) The Legislature also has general authority to define and punish crimes and other acts contrary to good civil order where a wrong requires a legal remedy. (47) As the cases demonstrate, however, contempt is a singular offense in the law (note that it does not appear in the Penal Code, where one would expect to find a legislatively defined criminal offense), and its execution and punishment are unique to the judiciary. (48) The Constitution also permits the Legislature to prescribe the jurisdiction of the courts it creates (49) and to delegate rule-making authority to this Court or the Supreme Court, subject to limitations for which the Legislature may provide by law. (50) That authority, however, cannot displace the substantive powers of the judiciary. As we have said, giving the Legislature authority to infringe upon the substantive power of the judicial department by establishing procedural guidelines for judicial administration would "render[] the separation of powers doctrine meaningless." (51)

If Article 24.05 does in fact limit a trial court's ability to punish disobedience to subpoenas under its inherent authority to punish contempt, then the statute is constitutionally infirm because it fails both elements of our separation of powers jurisprudence: it amounts to the legislative exercise of a power reserved exclusively to the courts (the power to identify contemptuous conduct and to punish it in the court's discretion consistent with the Constitution, common sense and good judgment), and it unduly interferes with the court's ability to effectuate the judicial power, of which contempt is a necessary element. In some situations, the failure to comply with a subpoena may be so egregious, or so infect the truth-seeking process, that confinement is both appropriate and necessary. So interpreted, Article 24.05 strips the court of the authority to determine the appropriate and necessary punishment for failure to comply with a subpoena, leaving that determination in the hands of the Texas Senate and House of Representatives, though the Constitution commits no such power to those chambers.

Were Article 24.05 merely a codification of the notion - which seems fairly implicit in our cases - that failure to comply with a subpoena is a contemptuous act (52) punishable by the court's inherent powers of contempt, it would pose no constitutional difficulty. Indeed, failure to comply with a subpoena is contemptuous precisely because it "obstructs the proper administration of justice" (53) by compromising substantially the truth-seeking process. But affirmatively imposing a statutory limitation on the court's inherent power to punish a contemptuous act by providing only for a fine deprives the court of exclusive control over an inherent judicial function.

This is not to say that the judiciary possesses, or should possess, unlimited authority to exercise its contempt powers. The federal and state Constitutions provide ample security for the contemnor, who has the protection of the Due Process and Due Course of Law clauses, (54) the Equal Protection Clause and the Texas Equal Rights Amendment, (55) the double jeopardy clauses, (56) and the constitutional prohibitions on excessive fines and cruel and unusual punishments. (57) These are the protections that the common law and our constitutional law have traditionally afforded the people against irrational or unwarranted state conduct in the administration of justice. The Legislature, however, may not supplement those constitutional limitations on judicial authority with statutory ones, as well, absent a specific constitutional grant of power to do so.

Madison shrewdly observed that, although "in republican government, the legislative authority necessarily predominates," (58) it remains necessary to provide mechanisms for checking legislative power and thus preventing its encroachment upon other, coequal departments in order to protect against "the legislative department everywhere extending the sphere of its activity and drawing all power into its impetuous vortex." (59) Article II of the Texas Constitution provides this Madisonian antidote by explicitly prohibiting the Legislature from intruding upon judicial ground, absent the support of constitutional text. (60) I respectfully dissent.

KELLER, Presiding Judge

DATE FILED: June 5, 2002


1. TEX. CONST., Art. 5, 1.

2. Blair v. United States, 250 U.S. 273, 280 (1919)("At the foundation of our federal government the inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial power of the United States"); Juidice v. Vail, 430 U.S. 327, 335 (1977)("The contempt power lies at the core of the administration of a State's judicial system"); see also Freytag v. C.I.R., 501 U.S. 868, 891 (1991)(federal judicial power includes the authority to punish contempts with fine or imprisonment and to subpoena witnesses).

3. Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).

4. Id. at 44-45.

5. Id. at 40.

6. Id. at 46.

7. Id. at 47.

8. Id. at 50 (emphasis added).

9. Matchett v. State, 941 S.W.2d 922, 932-933 (Tex. Crim. App. 1996), cert. denied, 521 U.S. 1107 (1997).

10. Id. at 932 n. 11.

11. Id.

12. Marx v. State, 987 S.W.2d 577, 582-583 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1034 (1999).

13. Dallas v. State, 983 S.W.2d 276, 277 (Tex. Crim. App. 1998).

14. Fielder v. State, 811 S.W.2d 131, 134 (Tex. Crim. App. 1991).

15. See Marx, Dallas, and Fielder, respectively.

16. See, e.g., Ex Parte Robinson, 86 U.S. 505, 510 (1873); Ex Parte Pryor, 800 S.W.2d 511 (Tex. 1990); Ex Parte Browne, 543 S.W.2d 82 (Tex. 1976); Ex Parte Davis, 353 S.W.2d 29 (Tex. Crim. App. 1961); Ex Parte West, 132 S.W. 339 (Tex. Crim. App. 1910).

17. Ex Parte Taylor, 807 S.W.2d 746, 748 (Tex. Crim. App. 1991).

18. In re Bell, 894 S.W.2d 119, 127 (Tex. Spec. Ct. Rev. 1995).

19. See Tex. Gov't Code 21.002.

20. Tex. Code Crim. Proc. Art. 24.05.

21. 641 S.W.2d 927, 932-33 (Tex. Crim. App. 1982).

22. Id. We said in Wilkinson that the two competing statutes were not in pari materia because they were "contained in different legislative acts, provide for different penalties, and [were] designed to serve different purposes and objectives." Id. at 932. For an explanation of the in pari materia rule, see Alejos v. State, 555 S.W.2d 444, 449-50 (Tex. Crim. App. 1977)(explaining that "statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things are considered as being in pari materia though they contain no reference to one another"). See also Cheney v. State, 755 S.W.2d 123, 126-27 (Tex. Crim. App. 1987) (holding that the "felony theft" statute and the "false statement to obtain property or credit" statute were not in pari materia where the latter statute was more specific and thus controlling, and where the statutes dealt with different subject matter."). Under Cheney's analysis, if Article 24.05 and 21.002 are in pari materia, then Article 24.05 prevails as the more specific statute. Id. at 126. Even if the two are not in pari materia, then Article 24.05 still prevails because its plain wording applies more directly to the instant matter, id. at 127, and, under Wilkinson, it prevails as a special statute. Wilkinson, 641 S.W.2d at 932.

23. 653 S.W.2d 35 (Tex. Crim. App. 1983).

24. Id. at 37.

25. Id.

26. Id. at 37 n. 5.

27. 740 S.W.2d 446 (Tex. Crim. App. 1987).

28. 740 S.W.2d at 449 (overruling Ex Parte Port, 674 S.W.2d 772 (Tex. Crim. App. 1984)).

29. Id. at 448 (emphasis added).

30. Id. at 448.

31. TEX. CONST., Art. V, 13 & 17.

32. United States v. Bryan, 339 U.S. 323, 331 (1950).

33. Juidice, 430 U.S. at 334-337 (applying Younger abstention doctrine to state contempt proceedings).

34. The statute authorizes the issuance of a subpoena for proceedings before a court in a criminal action, before an examining court, at a coroner's inquest, before a grand jury, at a habeas corpus hearing, and in any other proceeding in which the person's testimony might be required in accordance with the Code of Criminal Procedure. TEX. CODE CRIM. PROC., Art. 24.01(a).

35. Long v. State, 931 S.W.2d 285, 295 (Tex. Crim. App. 1996).

36. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (explaining that "it is emphatically the province of the judicial department to say what the law is" but cautioning courts to avoid involvement in matters properly left to the political branches); The Federalist No. 47, at 301 (James Madison) (Clinton Rossiter, ed., 1961) (explaining the division of powers in the federal Constitution, noting that the distinct departments will have a constitutional control over one another); Paul Verkuil, The American Constitutional Tradition of Shared and Separated Powers: Separation of Powers, the Rule of Law, and the Idea of Independence, 30 Wm. & Mary L. Rev. 301 (1989) (providing an historical account of the idea of the separation of powers).

37. See The Federalist No. 47, at 301 (James Madison).

38. Tex. Const. Art. II, 1 (emphasis added).

39. Id. Art. III, 1.

40. Id. Art. V, 1.

41. Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990) (emphasis added). See also Williams v. State, 938 S.W.2d 456, 458 (Tex. Crim. App. 1997) (recognizing same); State v. Condran, 977 S.W.2d 144, 145 (Tex. Crim. App. 1998)(Keller, J., dissenting)(recognizing same). I agree with the first prong of our separation of powers jurisprudence, that one branch may not assume or be delegated to any degree a power that belongs to another branch. It is not, however, clear to me that the second, functionalist prong of our existing jurisprudence - the "undue interference" prong - is entirely accurate, although, consistent with the principle of stare decisis, I have applied it in past opinions where the difference in the two prongs was neither raised nor of significance to the analysis. Perhaps in a future case we as a Court will have the opportunity to consider whether Article II of the Texas Constitution prohibits any interference with another branch's power, due or undue.

42. Ex Parte Gibson, 811 S.W.2d 594, 596 (Tex. Crim. App. 1991); Taylor, 807 S.W.2d at 748; Lee v. State, 799 S.W.2d 750, 752 (Tex. Crim. App. 1990).

43. Taylor, 807 S.W. 2d at 748-49.

44. The Texas Constitution, does, in fact, vest certain judicial powers in the Legislature. For example, the House and Senate may punish by imprisonment those who behave in a disrespectful or disorderly manner in the chamber's presence or who disrupt legislative proceedings. See Tex. Const. Art. III, 15. The Senate also has the power to try impeachments. See id. Art. XV, 2.

45. Id. Art. III, 15.

46. See Ex Parte Youngblood, 251 S.W. 509, 511-12 (Tex. Crim. App. 1923).

47. Tex. Const. Art. III.

48. See Taylor, 807 S.W.2d at 748 (noting that the contempt power is plenary in the judiciary).

49. Tex. Const. Art. V, 1.

50. Id. Art. V, 31(c).

51. Meshell v. State, 739 S.W.2d 246, 255 (Tex. Crim. App. 1987). Meshell and several prior cases involved controversies over the meaning of former Article V, 25 of the Texas Constitution, which gave the Supreme Court procedural rulemaking authority "not inconsistent with the laws of the State." Id. Our courts consistently found the Legislature's use of that provision to violate the separation of powers. See, e.g., id.; Williams v. State, 707 S.W.2d 40 (Tex. Crim. App. 1986); Lengever v. Miller, 76 S.W.2d 1025 (Tex. 1934). Although Article V, 25 was repealed, Article V, 31 contains similar language.

52. See, e.g., Marek, 653 S.W.2d at 38 (describing failure to comply with a subpoena duces tecum as "contemptuous").

53. See Taylor, 807 S.W.2d at 748.

54. See U.S. Const. amend. XIV; Tex. Const. Art. I, 19.

55. See U.S. Const. amend. XIV; Tex. Const. Art. I, 3a.

56. See U.S. Const. amends. V, XIV; Tex. Const. Art. I, 14.

57. See U.S. Const. amend. VIII; Tex. Const. Art. I, 13.

58. The Federalist No. 51, at 322 (James Madison).

59. The Federalist No. 48, at 309 (James Madison).

60. Tex. Const. Art. II, 1.