Ex parte Dugas

587 S.W.2d 735 | Tex. Crim. App. | 1979

OPINION

ODOM, Judge.

This is an original habeas corpus application brought on behalf of an attorney who was held in contempt by the 260th District Court of Orange County.

Louis Dugas was retained to represent Galen Ray Herman in a criminal case pending against him in the 260th District Court. On May 17, 1979, Dugas filed in that cause a motion to withdraw as attorney for Herman. The motion was set for a hearing the next day and was overruled. On that same day, May 18, the trial court issued an order in Herman’s case, directed to Dugas, which recited:

“You are hereby ORDERED to appear before this Court at 2:00 P.M., Monday, May 21, 1979 for the purpose of jury selection in the above numbered and entitled case. Failure to do so may be contempt of this Court and may result in a warrant being issued for your arrest.”

On May 21 Dugas failed to appear as directed in the order of May 18. A capias issued and he was arrested and brought before the court. He was then released and ordered to appear on June 1 to show cause why he should not be held in contempt for failure to obey the order of May 18. On June 1 the court found Dugas was in contempt of court for violating the May 18 order, and, according to the docket sheet, he was again released pending a determination of the contempt charges by another judge, pursuant to Art. 1911a, Sec. 2(c), Y.A.C.S. That hearing was held on July 23, and concluded with an order finding Dugas in contempt and assessing his punishment at a fine of $500.00 and four days in jail. From this order Dugas seeks habeas corpus relief.

Among the contentions raised in this proceeding, it is asserted that the July 23 order is void for lack of certainty as to the act or acts of contempt and the order or orders violated. The finding of fact in the July 23 order recites:

“and it appearing to the Court that Defendant Louis Dugas, Jr. is Guilty of Contempt of the Orders of the 260th District Court in failing and refusing to select a Jury on Monday, May 21, 1979 in the case of the State of Texas vs. Galen Ray Herman, all of which occurred in the Courthouse of Orange County, Texas situated in Orange, Texas.”

Petitioner argues that this judgment is vague and uncertain as to what order or orders of the court he did not obey. The State in its brief responds that all elements of the contempt occurred on May 21, and that the only orders issued on that date to proceed to trial prior to the preliminary contempt ruling “were the verbal [oral?] orders of Judge Burgess.” The show cause order, however, did not allege any violation of an order issued on May 21. It specifically alleged that petitioner violated the written order of May 18 that he “appear before the Court at 2:00 P.M., Monday, May 21, 1979 for the purpose of jury selection.”

The contempt order of July 23 does not recite a finding that petitioner failed to appear in violation of the May 18 order, as alleged in the show cause order. Even the State in its brief construes the contempt finding as referring to violations of an order other than the one alleged in the show cause order. Also, the acts alleged, compared to those found, are at variance. The show cause order alleged a failure to appear while the contempt order found a failure and refusal to select a jury.

Because the show cause order and contempt order are at variance as to the order violated and the acts committed, the contempt order must be set aside.

It is so ordered.