NO. 07-11-00122-CV; 07-11-00334-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
OCTOBER 28, 2011
R. WAYNE JOHNSON, APPELLANT
v.
KATHLEEN CLARK AND
MARJORIE JENKINS, APPELLEES
FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;
NO. B-11685-11-01; HONORABLE EDWARD LEE SELF, JUDGE
IN RE R. WAYNE JOHNSON, RELATOR
____________________________
Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J.1
MEMORANDUM OPINION
Appellant R. Wayne Johnson, appearing pro se, appeals from the trial court’s
order dismissing his lawsuit, finding him in contempt of court and imposing a $500 fine.
We affirm the order in part, and in part dismiss the appeal for want of jurisdiction.
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
Johnson also has filed a petition for writ of mandamus challenging the contempt order
against him. We will conditionally grant his petition.
Background
The trial court dismissed Johnson’s civil suit pursuant to Chapter 11 of the Civil
Practices and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 11.101 et
seq. (West 2010). Johnson has been declared a vexatious litigant and the 156th District
Court of Bee County entered a prefiling order requiring that he obtain permission of a
local administrative judge before filing new litigation in a Texas court. See In re R.
Wayne Johnson, No. 07-09-0035-CV, 2009 Tex.App. LEXIS 6831, at *4-5 (Tex.App.—
Amarillo August 27, 2009) (orig. proceeding) (per curiam, mem. op.). The trial court’s
dismissal order found Johnson had not obtained permission from the local
administrative judge to file his petition. See Tex. Civ. Prac. & Rem. Code Ann. §
11.103(a) (West 2010) (clerk may not file suit of vexatious litigant subject to prefiling
order unless litigant obtains order from local administrative judge permitting filing).
The trial court also found Johnson in violation of a court order, issued by a district
court of Harris County, requiring that he pay sanctions in the amount of $300 to the
Texas Attorney General’s Office as a prerequisite to filing suit. The court found him in
contempt and imposed a $500 fine.
Johnson filed notice of appeal from the trial court’s order, and later filed a petition
for writ of mandamus also challenging the trial court’s order.
2
Analysis
Direct Appeal
We apply an abuse of discretion standard to review of the trial court’s dismissal,
under Chapter 11, of Johnson’s suit. Scott v. Tex. Dep't of Crim. Justice-Institutional
Div., No. 13-07-00718-CV, 2008 Tex.App. LEXIS 8941, at *5 (Tex.App.-- Corpus Christi
Nov. 20, 2008, no pet.) (mem. op.). A trial court abuses its discretion if it acts in an
arbitrary or unreasonable manner or without reference to guiding rules or principles.
Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999).
Johnson argues the initial order declaring him a vexatious litigant is void because
the Texas Attorney General participated in defending the Bee County suit without
statutory authority. The argument has no merit. See Johnson v. Tex. Dep’t of Crim.
Justice, No. 07-08-00478-CV, 2010 Tex.App. Lexis 9891 (Tex.App.—Amarillo Dec. 14,
2010, no pet.) (mem. op.); In re R. Wayne Johnson, No. 07-07-0431-CV, 2009 Tex.App.
LEXIS 5795 (Tex.App.--Amarillo July 27, 2009) (orig. proceeding) (rejecting same
argument).
We lack jurisdiction to consider Johnson’s complaints concerning the order
finding him in contempt and imposing a fine. Courts of appeal generally do not have
jurisdiction to review contempt orders2 by way of direct appeal. Texas Animal Health
Comm’n v. Nunley, 647 S.W.2d 951, 952 (Tex. 1983); In re A.M., 974 S.W.2d 857, 861
2
The Texas Supreme Court has broadly defined contempt as “disobedience to or
disrespect of a court by acting in opposition to its authority,” Ex parte Chambers, 898
S.W.2d 257, 259 (Tex. 1995) (orig. proceeding), and observed that contempt is a broad
and inherent power of a court, see Ex parte Browne, 543 S.W.2d 82, 86 (Tex. 1976)
(orig. proceeding).
3
(Tex.App.--San Antonio 1998, no pet.); Metzger v. Sebek, 892 S.W.2d 20, 54
(Tex.App.--Houston [1st Dist.] 1994, writ denied). This is true even when the contempt
order is appealed along with an appealable judgment. In re Gonzalez, 993 S.W.2d 147,
157 (Tex.App.--San Antonio 1999, no pet.); Metzger, 892 S.W.2d at 54. Contempt
orders are reviewable by original proceedings. If a contempt order does not involve
confinement, it is reviewable by petition for writ of mandamus; if it involves confinement,
it is reviewable by petition for writ of habeas corpus. In re Long, 984 S.W.2d 623, 625
(Tex. 1999) (orig. proceeding) (per curiam).
Petition for Writ of Mandamus
Johnson filed a petition for writ of mandamus on August 19, 2011, while this
appeal involving the same issues was pending. In its order dismissing Johnson’s civil
suit, the trial court found Johnson did not obtain permission from a local administrative
judge before filing the suit, in violation of prefiling orders requiring that he do so. The
court also found Johnson “is in violation of a court order requiring that he pay sanctions
in the amount of $300.00 to the Texas Attorney General’s Office as a prerequisite to
filing. Thus, for all of the above reasons, it is FURTHER ORDERED that plaintiff is held
in CONTEMPT OF COURT pursuant to Tex. Civ. Prac. & Rem. Code § 11.101(b) and
shall be subject to the following penalty: $500.00 fine.”
Johnson’s mandamus petition requests we direct the trial court, the Honorable
Edward Self, to rescind the order of contempt because Judge Self abused his discretion
4
by holding Johnson in constructive, rather than direct, contempt without notice and a
hearing.3 We agree with Johnson’s contention.4
Contemptuous conduct is direct contempt of court if it occurs within the presence
of the court and constructive contempt if it occurs outside the court’s presence. Ex parte
Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding). To constitute direct
contempt of court, “the court must have direct knowledge of the facts which constitute
contempt.” In re Bell, 894 S.W.2d 119, 127 (Tex. Spec. Ct. Rev. 1995). Because the
contemptuous actions have occurred in the presence of the court and the judge has
personal knowledge of the events, direct contempt may be punished in a summary
proceeding without additional notice to the contemnor or a hearing. Ex parte Daniels,
722 S.W.2d 707, 709 (Tex.Crim.App. 1987). But due process entitles a constructive
contemnor to notice and a hearing, to give the opportunity for defense or explanation of
the charges. See Ex parte Gordon, 584 S.W.2d at 688; Ex parte Werblud, 536 S.W.2d
542, 546 (Tex. 1976) (observing that constructive contempt entitles the contemnor to
more procedural safeguards than those afforded direct contemnors); see also Ex parte
3
Johnson also argues the trial court lacked jurisdiction over his civil suit because
he filed it in a county other than its mandatory venue. See Tex. Civ. Prac. & Rem. Code
Ann. § 15.019 (West 2010) (mandatory venue for inmate litigation). Johnson is
mistaken; the trial court had jurisdiction. See Johnson v. Cornelius, No. 07-11-00091-
CV, 2011 Tex.App. LEXIS 7762 (Tex.App.—Amarillo Sept. 28, 2011, no pet.) (mem.
op.).
4
The office of the Attorney General of Texas represents appellees Clark and
Jenkins, and filed a brief on their behalf in Johnson’s appeal of the trial court’s order.
Although the Attorney General elected not to file a response to Johnson’s mandamus
petition, its appellees’ brief addressed the merits of Johnson’s contentions regarding the
contempt finding. The arguments we have attributed to the Attorney General in our
discussion of Johnson’s mandamus petition are those asserted in its appellees’ brief.
5
Krupps, 712 S.W.2d 144, 147 (Tex.Crim.App. 1986) (explaining that constructive
contempt adjudications satisfy due process if the contemnor is given notice, a hearing,
and the opportunity to obtain an attorney). Due process requires that full and
unambiguous notice of an accusation of contempt be served on the alleged contemnor
in a motion for contempt, show cause order, or equivalent legal process stating how,
when, and by what means the party has been guilty of the alleged contempt. Ex parte
Chambers, 898 S.W.2d at 262. Absent such notification, a contempt order for
constructive contempt is a nullity. Ex parte Blanchard, 736 S.W.2d 642, 643 (Tex.
1987).
The violation of a court order generally is described as constructive, not direct,
contempt. See, e.g., Ex parte Chambers, 898 S.W.2d at 259 (contempt alleged,
violation of written court order outside presence of court, was constructive contempt);
Ex parte Gordon, 584 S.W.2d at 688 (giving as example of constructive contempt “the
failure or refusal to comply with a valid court order”).
Relying on the holding of Ex parte Aldridge, 334 S.W.2d 161 (Tex. 1959), that the
phrase “in the presence of the court” may extend beyond the judge’s immediate
presence, the Attorney General argues Johnson’s filing his civil suit in the 242nd District
Court without seeking local administrative judge approval and without paying $300 to
the Attorney General gave Judge Self, the presiding judge of that court, “direct
knowledge of the facts” supporting the finding of contempt. We cannot agree. Another
of the cases the Attorney General cites, Ex parte Powell, 883 S.W.2d 775 (Tex.App.—
Beaumont 1994, no writ), dealt with a contemnor who filed false documents with a court.
Based on Ex parte Ratliff, 3 S.W.2d 406 (Tex. 1928), the court in Ex parte Powell
6
determined the contemptuous conduct was constructive in nature. Ex parte Powell, 883
S.W.2d at 777.
We recognize that Judge Self punished Johnson for contempt not because his
civil suit pleadings were false but because he filed them without seeking local
administrative judge permission or paying the Attorney General the $300 ordered by the
Harris County district court. However, even if a litigant’s conduct of filing a pleading by
mail with the district clerk could be considered conduct occurring “in the presence of the
court,” a conclusion we need not reach,5 we are unable to see how Judge Self can be
said to have had “direct knowledge” of Johnson’s contemptuous actions. The clerk’s
record before us contradicts the notion that Judge Self had such direct knowledge. The
record in Johnson’s direct appeal contains the “Notice that Plaintiff is Vexatious and
Motion for Sanctions” filed in the civil suit by the Attorney General. Appended to that
pleading are copies of the 2006 judgment dismissing a suit Johnson filed in Harris
County and of a 2009 order issued in another Harris County suit Johnson filed. Both
those documents make reference to a 2004 order of the 133rd District Court of Harris
County, sanctioning Johnson $300 and ordering that he not file any lawsuit in Texas
without first producing a signed release showing that he has paid the $300 to the
Attorney General. Referring to the $300 sanction and another $100 sanction imposed
against Johnson in 2010, the Attorney General advised the court in this present suit,
“This Office has no indication that Mr. Johnson satisfied either of these sanctions, nor
5
In other contexts we have held that showing a paper was filed with a district
clerk is not sufficient to show that the trial judge was aware of its contents. In re
Chavez, 62 S.W.3d 225, 228 (Tex.App.—Amarillo 2001)(orig. proceeding).
7
does Mr. Johnson allege in his petition that he paid those fines or that he obtained leave
from a judge to proceed with this suit as required by the vexatious litigant statute.” That
the Attorney General, by its notice, made the court aware it “ha[d] no indication”
Johnson had paid the sanctions did not give Judge Self “direct knowledge” of the facts
asserted in the Attorney General’s notice.6
It might be said that Judge Self would have direct knowledge that Johnson did
not seek the permission of the local administrative judge, if Judge Self was the local
administrative judge. But Swisher County is served by two district courts, the 242nd
District Court and the 64th District Court. Tex. Gov’t Code Ann. §§ 24.166; 24.419
(West 2011). The record does not show which of the two judges was serving as
administrative judge when Johnson filed his suit, and we have no basis on which to take
judicial notice of that fact. See Tex. R. Jud. Admin. 9 (West 2011) (providing for
selection of local administrative judge).
The facts that Johnson filed his civil suit in Swisher County without paying the
sanctions required by the Harris County order and without seeking local administrative
judge permission, asserted in the Attorney General’s motion and found by the trial court
to support its contempt finding, were perhaps easily proven. But, on this record,
establishing their existence required proof. “Constructive contempt refers to acts which
6
The Attorney General correctly notes section 11.101(b) of the Civil Practice and
Remedies Code subjects a person who disobeys an order under section 11.101(a) to
contempt of court. Tex. Civ. Prac. & Rem. Code Ann. § 11.101(b) (West 2010). The
statute, however, does not address whether such contempt is direct or constructive.
8
require testimony or the production of evidence to establish their existence.” Ex parte
Daniels, 722 S.W.2d at 709.
Johnson’s contemptuous conduct was constructive contempt of court, not direct.
Because the record demonstrates the contempt order was issued without notice or
hearing, it is void. Ex parte Blanchard, 736 S.W.2d at 643.
As noted, mandamus is the proper mechanism to review a contempt order that
does not impose incarceration as a punishment. In re Long, 984 S.W.2d at 625; In re
Garza, 126 S.W.3d 268, 270 (Tex.App.--San Antonio 2003) (orig. proceeding).
Mandamus relief may be afforded where the trial court’s order is void, In re Acceptance
Ins. Co., 33 S.W.3d 443, 448 (Tex.App.—Fort Worth 2000) (orig. proceeding), or to
correct an abuse of discretion in imposing sanctions without notice or meaningful
hearing in violation of due process. See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997)
(court of appeals abused its discretion by issuing mandamus directing trial court to
vacate sanctions order where sanctioned counsel afforded due process by notice of trial
court's intent to consider sanctions and opportunity to respond).
Accordingly, we will conditionally grant Johnson’s petition for writ of mandamus
seeking relief from the void contempt finding and fine.
Conclusion
The trial court’s order dismissing Johnson’s suit is affirmed, and his appeal of the
contempt order is dismissed for want of jurisdiction. Johnson’s petition for writ of
mandamus directing the trial court to vacate its finding of contempt and imposition of a
9
$500 fine is conditionally granted. The writ will issue only if the trial court does not
vacate its contempt finding and fine.7
James T. Campbell
Justice
7
On September 8, 2011, Johnson filed a motion entitled in part “Motion to Adhere
to Code [of] Judicial Conduct.” It does not seek relief beyond that already addressed in
this opinion. The motion is dismissed as moot.
10