IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 73,986

EX PARTE MICHAEL DOTSON, Applicant

ON ORIGINAL APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM NUECES COUNTY

O P I N I O N

This is an original application for writ of habeas corpus. A Nueces County grand jury indicted James Vannoy for the offense of felony theft. On August 14, 2000, the state filed an application to subpoena three witnesses, one of whom was applicant. On August 22, 2000, an investigator with the district attorney's office served applicant with the subpoena. Applicant refused to obey the subpoena, telling the district attorney that he was scared to "point the finger at someone." No writ of attachment was served.

A jury was selected, and the state put on evidence from its first witness in Vannoy's prosecution. Applicant failed to appear in court to testify. The trial court issued a writ of attachment, but applicant could not be located. Because the case could not be proved without applicant's testimony, the prosecution against Vannoy was dismissed with prejudice.

On September 14, 2000, the state filed a motion requesting that applicant be held in contempt for failing to obey the subpoena and, upon a finding of contempt, that he be sentenced to a term of confinement in the Nueces County jail. On September 27, 2000, the trial court held a hearing pursuant to the state's motion. Counsel for applicant argued that, under Art. 24.05 of the Texas Code of Criminal Procedure, ⁽¹⁾ the only punishment which could be imposed for refusing to obey a subpoena in a criminal case was a fine of $500. The state argued that a subpoena is a court order and that the trial court had the power to punish for contempt for failure to comply with an order.

The trial court found that Texas Rule of Civil Procedure 176.8(a) ⁽²⁾ is applicable to the extent that it authorizes punishment by contempt for failing to obey a subpoena. At the conclusion of the hearing, the trial court agreed with the state that a subpoena is a court order, and that, in the trial court's opinion, "there is no conflict between Rule 176.8 . . . and Art. 24.05. . . ." It further found that "if there is such a conflict, then the Court finds that and is of the opinion that Article 24.05 of the Code of Criminal Procedure is an unconstitutional infringement on the powers of the Court, the inherent powers of the Court and that it violates the separation of powers doctrine. . . ." The court then found applicant in contempt and assessed punishment at 180 days confinement and a fine of $500. We are called upon to determine whether the trial court had the authority to confine applicant for contempt because of his failure to comply with a subpoena in a criminal case.

Generally, contempt is either direct, an act which occurs in the presence of the court, or indirect, an act done at a distance, such as disobeying an order of the court. 13 Tex. Jur. 3d Contempt § 2 (1993). At the outset, we note that the instant case deals with criminal contempt. ⁽³⁾ The trial court's judgment of contempt repeatedly refers to applicant's "punishment" for contempt. Furthermore, the case against Vannoy had been dismissed with prejudice, and contempt as coercion to produce testimony was no longer useful. Criminal contempt was the only type available to the trial court. Clearly, the claimed contemptuous act, failing to answer a subpoena and appear in court, did not occur in the presence of the court. The state asserts that contempt will lie because the subpoena is a court order; applicant disagrees.

The issue is which statutory provision applies in these circumstances. One of our general rules of statutory construction is that a more specific statute or rule will prevail over a more general one. Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1998). Rule 176.8, by its placement in the Rules of Civil Procedure, applies specifically to civil proceedings. Art. 24.05, by its placement in the Code of Criminal Procedure and by its plain language, applies specifically to criminal cases. It is therefore reasonable to assume that the legislature intended to create different consequences for a given act, depending on the circumstances surrounding that act.

The case before us arose from a criminal case, and the sentence imposed constitutes criminal contempt. Because applicant's refusal to answer was in the context of a criminal prosecution, we apply the statute which is specific to such failure, Art. 24.05, and hold that such failure does not fall under the provisions of civil Rule 176.8. The penalty for failure to answer a subpoena in a criminal case is limited to the provisions of Art. 24.05. Because Art. 24.05 speaks only in terms of failure to answer a subpoena and does not speak in terms of contempt, it is unnecessary to decide whether a subpoena is a court order. The punishment assessed by the trial court exceeded that permitted by law, and the trial court did not act within its authority.

Relief is granted.

Johnson, J.

Delivered: June 5, 2002

Publish

1. ¹Art. 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."

2. ²Rule 176.8(a) provides that "[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both."

3. ³The distinction between civil and criminal contempt has been explained as follows:

The purpose of civil contempt is remedial and coercive in nature. A judgment of civil contempt exerts the judicial authority of the court to persuade the contemnor to obey some order of the court where such obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience and therefore the civil contemnor carries the keys of (his) prison in (his) own pocket. In other words, it is civil contempt when one may procure his release by compliance with the provisions of the order of the court.

Criminal contempt on the other hand is punitive in nature. The sentence is not conditioned upon some promise of future performance because the contemnor is being punished for some completed act which affronted the dignity and authority of the court.

Ex parte Werblud, 536 S.W.2d 542, 545-6 (Tex. 1976) (citations and internal quotation marks omitted).