Is Deposition Perjury Subject to the Court’s Contempt Power?
by Robert Gilbreath and Richard Smith
This May, the Texas Supreme Court issued its opinion in the case of In re Coy Reece, 341 S.W.3d 360 (Tex. 2011). As counsel for the opposing parties in the mandamus, we disagree with one another on the court’s resolution of the case. Nevertheless, we agree it is an opinion that litigators will be citing for years to come on the issues of a trial court’s authority to hold a party in contempt and the appellate court’s authority to review trial court decisions by mandamus.
In Reece, the Supreme Court considered whether perjury occurring outside the court’s presence is punishable as contempt. Reece was held in contempt for lying during his deposition and sentenced to jail time. Reece argued that perjury is not punishable as contempt unless it obstructs the court’s operations and that his perjury did not do so.
Previously, no Texas court had held that perjury had to obstruct or impede the court. But Texas courts had imposed that requirement for constructive contempt, i.e., contempt occurring outside the court’s presence. Thus, the Supreme Court concluded that Reece’s deposition perjury was not contempt unless it obstructed the trial court in the performance of its duties.
Federal courts have long required proof of obstruction before perjury may be punished as contempt. The U.S. Supreme Court explained, in In Re Michael:
“All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore, it cannot be denied that it tends to defeat the sole ultimate objective of a trial. It need not necessarily, however, obstruct or halt the judicial process. For the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact finding tribunal must hear both truthful and false witnesses.” The Texas Supreme Court agreed, noting that it was “loath to contemplate a system where litigants and their attorney scour transcripts searching for any misstatement for the sole purpose of accruing the opponent of contempt and ultimately securing the opponent’s confinement.”
The court stressed, however, that while a trial court cannot imprison a litigant for perjury unless the false testimony obstructs the court in the performance of its duties, trial courts retain a wide array of sanctions to deter and punish such discovery abuse. Finding that Reece’s perjury did not impede the trial court in the performance of its duties, the Supreme Court ruled that holding him in contempt and confining him to jail was improper.
But even if the trial court had erred by holding Reece in contempt, did the Texas Supreme Court have jurisdiction to address it? In cases where a litigant has been jailed for contempt, Texas courts have held that the way to seek relief is through a writ of habeas corpus. But while the Supreme Court has some habeas jurisdiction in civil cases, it is limited to cases where the party has been jailed for “violation of an order, judgment, or decree previously made, rendered, or ordered by the court or judge in a civil case.” Tex. Gov’t. Code § 22.002(e).
Although Reece admitted his perjury, he had not violated any previous order by the trial court. Thus, the only court with jurisdiction to issue habeas corpus was the Court of Criminal Appeals. Unfortunately for Reece, that court declined to exercise its jurisdiction because the underlying lawsuit was a civil case.
The Supreme Court recognized that it did not have authority to free Reece through habeas corpus. Nevertheless, the Court agreed that mandamus was proper because Reece had been unable to obtain habeas corpus review from the Court of Criminal Appeals. Thus, the Legislature’s limitation on the Supreme Court’s habeas jurisdiction did not impede the court’s ability to achieve the same result by issuing a writ of mandamus instead.
The decision in Reece is a clear indication of the Supreme Court’s expanded willingness to exercise its mandamus jurisdiction in recent years. A writ that was once formalistic and constrained has become more “practical and prudential.” See In re Prudential Ins. Co., 148 S.W.3d 124, 136 (Tex. 2004). For litigators, clients, and even trial judges, the lesson is that almost any ruling is open to mandamus review if the issue is sufficiently interesting or compelling.
Robert Gilbreath is a partner with Hawkins, Parnell, Thackston & Young and is board certified in civil appeals by the Texas Board of Legal Specialization. He can be reached at email@example.com. Richard Smith is a partner at Lynn Tillotson Pinker & Cox. He can be reached at firstname.lastname@example.org.