We have a district judge who held a lawyer in contempt for failing to remain for a docket call. The lawyer was fined $500 and is contesting the matter. The judge wants our office to prosecute the contempt. We find very little authority concerning who, if anyone, prosecutes a contempt action. Any advice on this matter would help. Regards, john Davis.

Texas Constitution, art. V, Sec. 21 sets out that prosecutors represent the State in District Courts (if you have a CA and a DA, see art. V, Sec. 21 plus the statutes relevant to your own offices and how that authority is split between you).

Contempt initiated by a District Court is a prosecution, it is by the State, and it is quasi-criminal. Your Court of Appeals has addressed some of these issues already in Hawkins v. Walvoord, 25 SW3d 882, (Tex. App. -- El Paso, 2000), review denied.

Even where the Court is the complainant it would seem that the prosecutor has the same powers, obligations, prosecutorial discretion, and authority as any other prosecution. If your Judge understands what that means (the offended Court may initiate the complaint, but then if you handle it as prosecutor it is 'your' case and how to prosecute it is up to you), it seems that it is on track. If you have a Court that thinks they get to control the prosecution (they are only the complainant, not the prosecutor -- sometimes they forget that), I'd find a way out of that one fast. Especially if your Court thinks it gets to initiate, and thinks it gets to tell you how to prosecute, and also thinks it gets to stay on as the Judge. I don't know anything about your court, so this is just one of those 'watch out' warnings, no reason for me to think your court is in that category. But, if it is, that is a situation just itching for a judicial conduct complaint, which you don't want to become a witness in.

One thing to watch for -- while there is certainly a place for contempt in our jurisprudence, sometimes it looks like a venting of anger (justified, perhaps) rather than a good case for prosecution. Contempts against lawyers seem to me to be a bit overdone by courts that for whatever reason lose control of their own courtroom on the 'day in question'. Not always, but sometimes. And, a contempt conviction has career-limiting impact -- the contemnor would always have to list it on applications to practice in federal court, for example. Is this a situation that serious, that a contempt conviction should follow the attorney for all their career? Perhaps. Perhaps not. Perhaps sincere apologies from the accused would be even better....

Don't forget to read Government Code 21.002, and especially the parts that relate to officers of the court, such as the accused attorney.

A prosecutor in your office could be a witness in the contempt hearing----a fact witness as to whether or not the offending attorney actual left the docket call. So you may need to get a special prosecutor. That would alleviate any potential problems that the Tarrant County prosecutor alludes to.

Ann's analysis is exactly right. Our long-standing position has been that the District Attorney has exclusive jurisdiction to prosecute contempt cases that result in fixed penal sentences (as opposed to open-ended coercive contempts to enforce judgments).

Ann is also correct, however, that reasonableness should prevail in these matters. Given that we're in the conflict business, tempers sometimes run short and judges can mistake advocacy for disrespect. That's why officers of the court get a de novo review and a personal bond after being sentenced by the offended court.

In light of that, we usually resolve the contempts informally with apologies and other creative sanctions intended to repair the relationship between the attorney and the court. Sometimes, however, you just have to try to put the person in jail.

Contempt prosecutions are also a good way of earning good will with the courts: the judges are usually appreciative of our willingness to back them up. They also usually respect our decisions to dismiss when the contempt is just not appropriate or legally sufficient.

Good luck! Please feel free to call if we can assist you.