concurring.
In this proceeding, the State Commission on Judicial Conduct has charged Justice of the Peace Betty Brock Bell with violating the Code of Judicial Conduct by three actions: (1) “customarily not being personally present to commence court with the calling of the docket”; (2) “responding to a personal criticism, voiced outside the courtroom and when court was not in session, with a finding of direct contempt of court, jail sentence, and fine”; and (3) “stat[ing], in her original Judgment and Commitment for Direct Contempt, that Court was in session, engaged in its regular business of hearing and determining causes pending before it, when in fact the confrontation occurred in a hallway and court was not in session.” The majority acquit Judge Bell of the first charge and convict her of the last two. I write separately because I would acquit Judge Bell of the second charge as well as the first. Because I agree with the majority’s conclusion as to the third charge, however, I concur in the result.
The majority find that Mr. Caress “made an assertive statement in a normal tone of voice, neither loud nor threatening.” Nonetheless, because the evidence describing the exact nature of the confrontation between Mr. Caress and Judge Bell was conflicting, the majority assume that Mr. Caress’s actions could properly be characterized as contemptuous if they had taken place in the courtroom while court was in session. I agree with this characterization of Mr. Caress’s actions, especially in light of the fact that the only truly disinterested witness to recount the confrontation, attorney Ronald Mock, described Mr. Caress as “belligerent” and as “shouting” at Judge Bell. Indeed, even Mr. Caress himself testified that “to some degree” he was “angry” and “speaking in a loud manner.” Accordingly, I think it is appropriate that we assume that Mr. Caress’s words and actions were of a contemptuous nature.
The majority conclude, however, that because the confrontation took place in the hallway between the courtroom and the jury room rather than in the courtroom itself, and because court had not been formally announced into session, Judge Bell violated the *132Code of Judicial Conduct by failing to conduct a hearing before holding Mr. Caress in contempt. It is with this conclusion that I disagree. •
The majority opinion contains an extensive discussion of the law of direct and constructive (or “indirect”) contempt, and I agree with much of it. Our task in this proceeding, however, is not to determine if Judge Bell lacked authority to hold Mr. Caress in contempt without a hearing, but to determine if Judge Bell violated the Code of Judicial Conduct. Based on the standard set forth in the majority opinion, with which I also agree, that determination entails deciding if Judge Bell acted “wilfully” and “in bad faith.” In the present context, that decision necessarily turns on whether the law of direct and constructive contempt is sufficiently clear that Judge Bell must have known that she lacked power to hold Mr. Caress in contempt without a hearing or must have exhibited gross indifference to whether she had such power or not.
The problem is that the law of direct and constructive contempt is anything but clear. An expert in the area of contempt law, Mr. Charles Fiscus, testified that the aspect of contempt law at issue in this case was “somewhat confused.” My own research confirms that assessment as accurate, if not an understatement. The most cogent and lucid analysis of this area of contempt law I have found is contained in Wendell A. Odom & Lang A. Baker, Direct and Constructive Contempt, An Attempt to Clarify the Confused History of a Confused Distinction in the Jurisprudence of Texas, 26 Baylor L.Rev. 147 (1974). Judge Odom and Mr. Baker emphasize that there are two separate distinctions within the law of contempt: (1) direct contempt vs. constructive contempt; and (2) contempt for which notice and hearing are required vs. contempt for which notice and hearing are not required. A large part of the confusion, both in Texas and elsewhere, stems from the tendency of courts and commentators to improperly identify the direct/constructive distinction with the procedural distinction, i.e., to improperly conclude that direct contempt is synonymous with contempt for which a prior hearing is not required, and that constructive contempt is synonymous with contempt for which a prior hearing is required. In fact, the two distinctions do not coincide.
The authors approve the following distinction between direct contempt and constructive contempt:
[A] direct contempt rests upon the fact that the offending conduct is a direct affront to the authority, justice or dignity of the court, and is contemptuous independently of the existence of any order or decree of the offended court. In contrast, constructive contempt is only constructively contemptuous: but for the order or decree violated, the allegedly contemptuous conduct would not constitute contempt.
Odom & Baker, supra at 150. The authors approve the following distinction between contempt that requires a hearing and contempt that does not require a hearing:
Where the contempt is committed directly under the eye or within the view of the court, it may proceed “upon its own knowledge of the facts, and punish the offender, without further proof and without issue or trial in any form,” Ex parte Terry, [128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888),] whereas, in cases of misbehavior of which the judge cannot have such personal knowledge, and is informed thereof only by the confession of the party, or by the testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished.
Odom & Baker, supra at 154 (quoting from Ex parte Savin, 131 U.S. 267, 277, 9 S.Ct. 699, 702, 33 L.Ed. 150 (1889)).
Obviously, not every affront to a judge or other court officer ought to invoke the court’s contempt power. To describe conduct that was sufficiently “direct” to constitute an affront to the authority, justice, or dignity of “the court” rather than to the person of the judge, courts and commentators have chosen an unfortunate phrase: “in the presence of the court.” Thus, the usual definition of direct contempt requires that if the offending conduct did not violate a prior court order, it had to be committed “in the presence of the court.” This phrase, however, describing what is required for conduct to constitute *133direct contempt, is confusingly close to the phrase used in the procedural distinction to describe the circumstances under which a judge may issue a contempt order without a prior hearing. It is little wonder that the direct/constructive distinction and the procedural distinction have so often been improperly linked by courts and commentators alike. See, e.g., Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406, 406 (1928) (“In the one [direct contempt] the court sees and knows all the acts which constitute the contempt, and needs no testimony to establish their existence, as facts, while in the other [constructive contempt], testimony must be heard to inform the court, and this being so, due process of law demands that this testimony should be heard publicly ... after due notice to the accused”); Ex parte Arnold, 503 S.W.2d 529, 531 (Tex.Crim.App.1974) (adopting the foregoing quote from Ex parte Ratliff); Ex parte Daniels, 722 S.W.2d 707, 709 (Tex.Crim.App.1987) (“Direct contempt is contempt which is committed or occurs in the presence of the court. In direct contempt cases the court has direct knowledge of the facts which constitute contempt. Constructive or indirect contempt involves actions outside of the presence of the court. Constructive contempt refers to acts which require testimony or the production of evidence to establish their existence.”); James M. Magee, Contempt of Court in Texas, 14 S.Tex. L.J. 278, 280 (1973) (“Direct contempts are punishable summarily. No notice or hearing are required. The courts justify summary punishment based on their need to have the power to preserve decorum in the courtroom and the lack of factual dispute because the act occurred before the court.”); Stewart Rapalje, Treatise on Contempt 26 (1884) (“Direct contempts may be summarily punished by order of the presiding judge, after such a hearing as he may deem just and necessary; but constructive contempts, though equally punishable, yet require a different and less summary process.”).
Despite the blurred distinction, the issue of whether offending conduct occurred “within the presence of the court” is different from the issue of whether the conduct occurred “within the immediate view of the judge” (so as to eliminate the need for a hearing to determine the facts). Indeed, whether offending conduct occurred “within the presence of the court” is arguably not even the factor that distinguishes direct contempt from constructive contempt. Rather, it is the factor by which courts determine if offending conduct that is not a violation of a prior court order (i.e., that is not constructive contempt) should be punishable by contempt at all. Thus, the scope of “within the presence of the court” takes on significant public-policy ramifications. In determining its scope, courts have recognized that “within the presence of the court” is not confined to the actual courtroom. See, e.g., Ex parte Aldridge, 169 Tex.Crim. 395, 334 S.W.2d 161, 165 (1959) (“The wording ‘in the presence of the court’ does not necessarily mean ‘in the immediate 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, which constituent parts include the judge, the court room, the jury, and the jury room.”). Judge Odom and Mr. Baker approve the conclusion in Corpus Juris that “ ‘in the presence of the court’ sufficient to constitute direct contempt, exists if the contempt is ‘committed in any part of the place set apart for the use of its officers, jurors, and witnesses, including the hallways of the courthouse, the steps, or the courthouse yard.’ ” Odom & Baker, supra at 151-52 (quoting Corpus Juris, Contempt, § 40 (1917)).
I agree with the scope of “in the presence of the court” described by Judge Odom and Mr. Baker. Accordingly, I disagree with the majority that a judge necessarily loses the mantle of “the court” the instant he or she steps off the bench. I believe a strong argument can be made that the judge should retain that character at least within the im7 mediate vicinity of the courtroom. For example, contumacious conduct occurring in a hallway outside the courtroom can be just as disruptive to the administration of justice and just as much a threat to the court’s authority, justice, and dignity as conduct occurring inside the courtroom. Cf. Ex parte Daniels, 722 S.W.2d 707, 710 (Tex.Crim.APp.1987) (disturbance partially in hallway outside courtroom door was direct contempt). *134One thing is clear: in contempt law there is much room for disagreement about both the direct/eonstructive distinction and the procedural distinction.
Attempting to apply the confused state of the law of contempt to the present case, the fact that the entire incident occurred “within the immediate view of the judge” would seem to obviate the need for a hearing before contempt could be used. Moreover, I believe a strong argument exists that Mr. Caress’s actions did constitute direct contempt. However, we need not make these decisions. Our task is not to decide whether Judge Bell made an error of law, but to decide whether she violated the Code of Judicial Conduct. As the majority notes, this effectively requires a finding that Judge Bell knew her use of contempt power was beyond the legitimate exercise of her authority. In an area of the law as confused as this one is, and in a case as close as this one is, I cannot say the Commission met its burden of showing that Judge Bell acted wilfully and in bad faith as to the second charge against her.
The majority cite two grounds for concluding that Judge Bell acted wilfully and in bad faith in holding Mr. Caress in contempt without a hearing.1 First, they point to Judge Bell’s statement (“I may be wrong on the law, but he was disrespectful to me and he will be going to jail”) made later the same day to Mr. Caress’s attorney, David Smith, and to her failure to read the cases he had photocopied for her. This is a weak reed. If every judge who declined to read a lawyer’s cases or made a statement to the effect that, “I may be wrong on the law, but ...”2 was guilty of a wilful and bad-faith violation of the Code of Judicial Conduct, there would be precious few judges in the state left untainted. In my opinion, these actions by Judge Bell are virtually no evidence that she either knew she was wrong or did not care. More than a scintilla? Perhaps. Persuasive? Hardly.
Second, the majority point to the fact that Judge Bell later issued her “Alias Commitment for Direct Contempt” (1) in the face of a “directive,” contained in the November 15 order of the county court at law that set aside Judge Bell’s original order and released Mr. Caress, which stated, “Judge Bell or another to conduct further hearing after release if so ordered”; and (2) after sufficient time had passed for cool reflection and legal research. As to the first of these, the order of the county court at law was withdrawn on November 24, just nine days after it was issued. Necessarily, the hand-written, ambiguous “directive” was withdrawn along with it. At the time Judge Bell issued the “Alias Commitment for Direct Contempt” in January, therefore, she had no reason whatsoever to view that directive as an obstacle to the reincarceration of Mr. Caress. As to the second of the stated grounds, the passage of time can indeed be significant in circumstances where a material length of time intervenes between the offending conduct and the order of contempt. See Ex parte Enable, 818 S.W.2d 811, 812-13 (Tex.Crim.App.1991). In the present case, however, Judge Bell’s “Alias Commitment for Direct Contempt” was not a contempt order at all, but merely an order directing the Sheriff of Harris County to arrest Mr. Caress in order to satisfy the original contempt order, which had been effectively reinstated by the withdrawal of the November 15 order of the county court at law. Thus, the grounds cited by the majority provide scant support for their finding of wilfulness and bad faith as to the Commission’s second charge.
I am fearful that, as a practical matter, the message trial-court judges and justices of the peace throughout this state may receive from the majority’s holding is that if they make a legal mistake in using their contempt power, they may be subject to sanctions for violating the Code of Judicial Conduct. This could have a profound chilling effect on the long-recognized authority of such judges to use *135contempt. It is certainly true that a judge’s power to use contempt should be used cautiously. But if, in an effort to force trial judges to use that power cautiously, we put too many constraints on it, we risk destroying its effectiveness. It has long been recognized that, to be effective, the contempt power must be broad. See Ex parte Daniels, 722 S.W.2d at 709 (“Contempt power is a necessary and integral component of judicial authority. ... While it is clear the exercise of this authority should be tempered with common sense and sound discretion, contempt power is accorded wide latitude because it is essential to judicial independence and authority.”). In the occasional case where contempt is used inappropriately, habeas corpus relief is available to prevent irreparable harm to contemnors. Disciplinary sanctions against the judge, however, should be reserved for only gross abuses of the contempt power. I do not believe the instant ease presents such circumstances.
I would acquit Judge Bell of the Commission’s second charge.
. The majority also cite a third basis for their finding of wilfulness and bad faith, but it is relevant only to the third and final charge against Judge Bell — that her original order of contempt affirmatively misstated the factual context of the offending conduct.
. There are any number of variations on this I-may-be-wrong theme. My personal favorite is, "The court of appeals may reverse me, but....”