In 2018, the Mitte Foundation sued and obtained a judgement against Natin Paul based on his management of valuable real estate in Travis County, Texas. In addition to the judgment, the Foundation obtained an enforcement order that required Paul to file periodic reports about his assets. After Paul failed to file the required reports, the trial court appointed the Foundation’s private counsel—who stood to be paid from Paul’s assets—to prosecute a criminal-contempt case against him. After two hearings, the trial court found Paul guilty of criminal contempt and sentenced him to ten days in jail.

The practice of allowing private parties in civil cases to prosecute criminal contempt charges has been prohibited in federal courts since the Supreme Court’s decision in Young v. U.S. ex rel. Louis Vuitton et Fils, S.A. Unfortunately, Young does not go so far as to disallow prosecution by interested parties in state courts. And while Supreme Court precedent sends strong messages disapproving of prosecutions by interested parties, the decision by the Texas Supreme Court opens the door to criminal contempt prosecutions in state courts by financially interested adverse private parties in civil litigation.

In its brief, Cato argues that such practices are inconsistent with the notions of liberty and fundamental fairness inherent in due process. The enormous power and discretion entrusted to a prosecutor in a criminal case requires confidence that the prosecutor is acting solely in the interest of the public. When the prosecutor has a conflicting duty to the client in civil litigation, it erases any presumption that the prosecutor is acting solely in the public interest, and it gives private parties a potent weapon to wield against civil adversaries. The Supreme Court should hear this case and clarify that due process requires a disinterested prosecutor in both federal and state court proceedings.