¶1concurring.
¶2I concur with the majority, but wish to add an additional comment relative to the action of the trial court in handling the contempt hearing. As noted in the majority opinion, Karten was not present on January 11 or 14, 1980, when the trial court proceeded to hear Ms. Snyder’s Motion for Contempt of November 26, 1979. I am bothered by the question of whether this would amount to a trial in absentia, and am concerned with the potential ramifications of any implied approval by this court of trial which might result in punishment for *783contempt of a respondent who is not at the trial, even though he has been notified to personally appear. I think that in such a case an order holding the respondent in contempt should be valid; I fear that it might be invalid.
¶3A person who is held in contempt is entitled to a hearing after notice, before the respondent can be jailed. Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406, 57 A.L.R. 541 (1928); Ex parte Pyle, 134 Tex. 148, 133 S.W.2d 565 (1939); see also 12 Tex.Jur.2d Contempt §§ 49, 50 (1960). If the trial court in the instant case were to have proceeded with the contempt proceeding without Karten being present, he would have been deprived of such a hearing. In Ex parte Stanford, 557 S.W.2d 346 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ), a person was cited for contempt for failure to pay child support. A “show cause hearing” was held where the husband was not present, nor did he appear through an attorney. The husband was ordered jailed for ten days for contempt and was ordered to remain in jail further until an arrearage was paid. The husband petitioned the 1st Court of Civil Appeals for a writ of habeas corpus, which was granted.
¶4In granting the writ of habeas corpus in Stanford, the Houston court discussed the propriety of jailing a person for contempt when the person has no notice of the contempt proceeding nor an opportunity to appear at a show cause hearing. Stanford appeared to turn on the issue of lack of notice to the respondent, but the court also addressed the issue of a trial held in absen-tia. There is little published law in Texas on this subject, but the Court of Civil Appeals commented that the laws of Texas do not countenance trials in absentia in normal, everyday criminal proceedings. This is due to the right of an accused to confront witnesses, found in Tex.Const. art. 1, § 10. A similar right exists in the Bill of Rights of the federal constitution, U.S.Const. amend. 6.
¶5Whether or not this right of confrontation extends to contempt proceedings in Texas is not clear. In Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975), it appears that due to the penal nature of contempt punishment, the respondent in a contempt proceeding is entitled to some of the various protections afforded criminal defendants. Even though Munizinvolved interpretation of a federal statute in a contempt proceeding, it appears this right extends to the right to confront the witnesses in any contempt proceeding and therefore implicitly disapproves of a contempt proceeding held when the respondent is not present.
¶6As a result, since normal criminal proceedings in Texas do not lend themselves to trials in absentia and since a trend exists which appears to be moving away from condoning contempt proceedings held when the respondent is not present, I feel that it was incorrect for the trial court to proceed with the contempt motion when Karten was not present. It has been suggested that Karten was present in Fort Worth when the contempt proceeding was held, and in light of this fact, it would not have been too onerous a burden for the trial court to have brought Karten before the court. I strongly feel that the failure to do this was potential error by the trial court, with the possibility that the resulting contempt proceeding, if it had been held, would have resulted in a void contempt decree. Hopefully, such potential for error will not occur in the future.