I like that Texas appellate courts mostly video-record oral arguments now, and I like to share my argument videos, because I enjoy oral argument, and I think my arguments are generally entertaining to watch. (Sharing them also gives potential clients a chance to see me “taking my wits for a walk,” thinking on my feet in the courtroom, before they hire me; that’s not a bad thing.)

This is my argument from a couple of weeks ago in a pretrial habeas case with some (to me) really interesting issues.

My client, first of all, was arrested for DWI and put on bail. She got out on a bond with conditions; these conditions included “don’t break the law, and don’t do anything that could result in your arrest.” (Set aside the absurdity of the second part for a moment—either it means the same thing as the first, or it means nothing at all because anything you do could result in your arrest.)

She got arrested for another DWI, and the then-judge of Harris County Criminal Court at Law 16, The Ignominious Darrell Jordan, had her arrested and issued a show-cause order, warning that he was considering holding her in contempt for violating her conditions of bail. He had a hearing, at which the State presented evidence (the new charging instrument) that she had committed the new DWI.  At that time she was represented by the Redoubtable Gianpaolo “GP” Macerola.

GP explained the situation to me—I didn’t know then that The Ignominious DJ had been holding people in contempt for violations of bail conditions, a practice that he had (I figured out) learned from his mentor, The Despicable Mike Fields, former judge of Harris County Criminal Court at Law 14.

So this is interesting legal issue #1: While bail conditions are a court order, they are a type of order that has specific ramifications in the Texas Code of Criminal Procedure, and are not enforceable by a court’s general contempt power. So we could have attacked the contempt on those grounds, but we kept our mouths shut until January 13, 2025. (At which point GP let me loose, and I put a stop to the Ignominious DJ’s practice in other cases, but that’s a story for another post, one on the extraordinary writs of prohibition and mandamus.)

We picked January 13, 2025 because it was 31 days after the client had been held in contempt. In Texas—in either civil or criminal court—a trial court loses plenary jurisdiction to do anything about the judgment. There are a few narrow exceptions (Interesting legal issue #2). On January 13, it was too late for The Ignominious DJ to undo the client’s contempt judgment, and we didn’t want to undo the contempt judgment; we wanted to use the contempt judgment as a double-jeopardy bar to the client’s prosecution for that DWI.

That’s Interesting Legal Issue #3: There’s a United States Supreme Court case called U.S. v. Dixon in which the trial court held the defendant in contempt for committing a new law violation (dealing drugs) in violation of a condition of his bond. The Supreme Court held that the “don’t violate the law” condition of bond effectively incorporated the whole universe of criminal laws, and that Mr. Dixon’s contempt trial for violating that condition by dealing drugs barred, under the Double Jeopardy Clause, his criminal trial for dealing drugs.

So, based on the reasoning in Dixon, we filed a pretrial habeas petition in the new DWI case, alleging that our client’s contempt punishment for conduct that only violated her bail conditions because it was DWI barred her prosecution for DWI.

After we’d filed that petition, but before we got a hearing, the IDJ signed an order purporting to vacate the client’s contempt judgment. If I’m right about plenary jurisdiction, that order was of no effect.

A pretrial habeas petition can be heard by a variety of courts, but customarily the judge whose court the trial will be in gets the first shot at it. The IDJ, of course, denied relief.

Appeal from denial of a pretrial habeas petition goes to the intermediate court of appeals. The First Court of Appeals affirmed The IDJ. From there we go to the Court of Criminal Appeals.

The Court of Criminal Appeals, like the United States Supreme Court (I will never write those two phrases together again), is a court of discretionary review—it accepts only a small fraction of the cases offered to it. The CCA granted our petition for discretionary review, and gave us oral argument.

The State ignored Dixon, and argued that the contempt judgment did not count as jeopardy because it had been void for lack of notice—a problem that The Redoubtable GPM had waived at the double-jeopardy contempt hearing.

Remember Interesting Legal Issue #2. One exception to the general rule is that a court can, outside its plenary jurisdiction, vacate an order if the order is void and the trial court lacked jurisdictional power to enter it. The State read cases saying that a contempt judgment entered without proper notice is “void,” and assumes that “void” means “a nullity.”

That’s common sense, but it’s not the law. A couple of times in the argument I butted heads with the judges, because “void” in Texas appeals means “subject to collateral attack, as in habeas” as distinguished from “voidable,” which means “only subject to attack in a direct appeal.”

The IDJ’s contempt judgment was void in the sense “subject to collateral attack,” but we didn’t attack it collaterally, and until we successfully do so (our waiver of notice probably forecloses that particular argument) the judgment is effective.

This makes sense in the double-jeopardy context: If we are tried for a crime, and the conviction is subject to attack, we get to decide whether we are going to attack the conviction, knowing that if we are successful we might be retried for the same crime, potentially receiving harsher punishment.

In fact, that’s a central question in most direct appeal or habeas cases: “Be careful what you wish for. If we win this,” I will tell the client, “you get a new trial. Are you sure you want that?” Often a client will decide that he doesn’t want to spend the tremendous amount of money required to put himself back in the position that he was in before he went to trial or pled guilty.

The principle that the court should follow in the case you see me arguing here, which decides the case in our client’s favor, is the one that I led off my argument with: The State cannot circumvent a federal constitutional rule with a state rule.

Even if Texas law said that our client’s contempt judgment was a nullity because the judge was not wearing a red bowtie, the U.S. Constitution does not care what Texas law says.