I join the Court's opinion. Since applicant did not refuse to obey the subpoena in the court's presence and since applicant did not refuse to obey the subpoena after being ordered to do so by the trial court, the trial court had no inherent or statutory power to hold applicant in contempt based solely on his refusal to obey the subpoena. ⁽¹⁾ The trial court, therefore, could only fine applicant according to the statutory procedures for punishing those who refuse to obey properly served subpoenas. See Articles 24.05, 24.06, 24.07, 24.08, 24.09, 24.10, Texas Code of Criminal Procedure. This case, therefore, does not require the Court to address whether Article 24.05 violates constitutional separation of powers principles by usurping the judiciary's contempt power under Section 21.002, Texas Government Code.

Had the trial court ordered applicant to obey the subpoena and had applicant refused, ⁽²⁾ then this Court would have to address this separation of powers issue. But even then, there would be no separation of powers problem. The trial court could apply the statutory Article 24 procedures set out above to punish applicant for refusing to obey the subpoena. The trial court could also apply its Section 21.002 contempt power to punish applicant for refusing to obey the court's order which is a separate act from applicant's refusal to obey the subpoena. ⁽³⁾ Compare Ex parte Edone, 740 S.W.2d 446, 449 (Tex.Cr.App. 1987) (court could properly hold applicants in contempt for violating court's order to testify before the grand jury) with Ex parte Wilkinson, 641 S.W.2d 927, 933 (Tex.Cr.App. 1982) (court could not properly hold applicants in contempt based only on their refusal to testify before the grand jury). ⁽⁴⁾ Under these circumstances where they are applied to punish separate acts, Article 24.05 and Section 21.002 can each be reconciled and given effect and neither branch of government usurps a power that belongs to the other.

With these comments I join the Court's opinion.

Hervey, J.

Date Filed: June 5, 2002

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1. A trial court's inherent contempt power usually arises in "direct contempt" situations where the contemptuous acts occur in the court's presence. See Cleveland v. State, 508 S.W.2d 829, 831 (Tex.Cr.App. 1974) (court may use its inherent contempt power to enforce testimonial duty of a recalcitrant witness). A trial court's statutory Section 21.002 contempt power (a trial court probably has the same power as part of its inherent contempt power) usually arises in "constructive contempt" situations where the contemptuous acts usually involve a willful violation of a trial court's reasonably specific order. See Ex parte Rhodes, 974 S.W.2d 735, 740 (Tex.Cr.App. 1998).

2. That did not happen here.

3. This would not present a double jeopardy problem either. See Rhodes, 974 S.W.2d at 739-42 (double jeopardy principles barred criminal prosecution of father for interference with child custody due to his previous criminal contempt in a civil proceeding based on same conduct).

4. This Court's decision in Wilkinson was based on the record showing that the court held applicants in contempt for their refusal to testify before the grand jury and not based on their refusal to comply with the court's order to testify before the grand jury. See Wilkinson, 641 S.W.2d at 933. Under these circumstances, the court could only assess a penalty under a statute like the one here. See id.