Subpoena
A command issued in the name of the State of Texas requiring a person to testify at a deposition, hearing or trial, to produce documents or tangible things, or both. Texas civil subpoenas are governed by Rule 176 of the Texas Rules of Civil Procedure, and disobeying one without adequate excuse may be punished as contempt.
In a Texas civil case, the court clerk, a licensed Texas attorney or a deposition officer may issue a subpoena (Tex. R. Civ. P. 176.4). It cannot compel appearance or production in a county more than 150 miles from where the person lives or is served (Rule 176.3(a)).
A subpoena is the court's process for compelling someone to show up or hand over material. Under Tex. R. Civ. P. 176.2 it may command attendance and testimony at a deposition, hearing or trial, production of designated documents or tangible things in the person's possession, custody or control, or both at once. A subpoena that calls for production is often called a subpoena duces tecum, though the Texas rules simply say "subpoena."
Rule 176 merged the former trial and discovery subpoena rules in 1999. A subpoena cannot be used to get around the discovery rules Rule 176.3(b), so a subpoena to a nonparty for discovery also has to satisfy (Rule 205).
- Governing law
- Tex. R. Civ. P. 176, and in justice court (Rule 500.7)
- Who issues
- Clerk, Texas attorney or deposition officer (Rule 176.4)
- Range
- 150 miles from where the person resides or is served (Rule 176.3(a))
- Witness fee
- $10 per day attending court, one day paid at service (CPRC § 22.001)
- Enforcement
- Contempt, by fine, confinement or both (Rule 176.8(a))
Who may issue and serve a subpoena
Three people can issue one. The clerk of the district, county or justice court gives the requesting party an original and a copy for each witness, which the party completes. A Texas-licensed attorney may issue a subpoena as an officer of the court. An officer authorized to take depositions must issue one immediately when handed a deposition notice under Rule 199 or 200, or a Rule 205.3 notice (Rule 176.4).
Any sheriff or constable may serve it anywhere in Texas, and so may any nonparty who is 18 or older. Service means delivering a copy to the witness and tendering the fees the law requires. When the witness is a represented party, the subpoena may be served on the party's attorney of record (Rule 176.5(a)). Proof of service is either the witness's signed acceptance or a statement from the server giving the date, time, manner and person served.
Subpoenas in discovery
A party, or a witness under a party's control, can usually be compelled to a deposition by serving the notice on the party's attorney, without a subpoena (Rules 199.3, 200.2). Nonparties are different. Discovery from a nonparty requires a court order or a subpoena (Rule 205.1), and the notice for that discovery must be served on the nonparty and every party.
For documents alone, without a deposition, the notice must go out at least 10 days before the subpoena is served (Rule 205.2), and the subpoena must be served no later than 30 days before the discovery period ends (Rule 205.3(a)). The requesting party reimburses the nonparty's reasonable costs of production.
Objections and protective orders
A person commanded to produce documents may serve written objections on the requesting party before the time set for compliance and need not produce the objected-to items unless the court orders it (Rule 176.6(d)). Anyone commanded to appear or produce, and anyone else affected, may also move for a protective order before compliance is due, in the court where the case is pending or in a district court in the county of service (Rule 176.6(e)).
Trial and hearing subpoenas work on a different clock. Objections may be raised before the court at the time and place set for compliance (Rule 176.6(f)). In ruling, the court must give adequate time to comply, protect privileged material and guard against undue burden or expense, and it may order compensation for undue hardship (Rule 176.7).
Enforcement
Failing to obey a subpoena without adequate excuse may be treated as contempt of the issuing court, or of a district court in the county of service (Rule 176.8(a)). Outside justice and municipal courts, punishment for contempt is a fine of up to $500, up to six months in county jail, or both (Tex. Gov't Code § 21.002(b)). A court may also jail a person until the person complies, for no more than 18 months (§ 21.002(e), (h)). There is a precondition. No fine or attachment may be imposed unless the requesting party or its attorney proves by affidavit that all fees due the witness were paid or tendered (Rule 176.8(b)).
What every Texas subpoena must state
Under Rule 176.1, a subpoena is issued in the name of "The State of Texas" and must:
- State the style of the suit and its cause number.
- State the court where the suit is pending.
- State the date of issuance.
- Identify the person to whom it is directed.
- State the time, place and nature of the action required.
- Identify the party at whose instance it is issued, and that party's attorney of record, if any.
- State the text of Rule 176.8(a) on contempt.
- Be signed by the person issuing it.
Can you get a subpoena without a lawyer in Texas?
Yes. The clerk of the district, county or justice court issues subpoenas on a party's request, handing over an original and a copy for each witness for the party to fill in Rule 176.4(a). In justice court, the justice court clerk issues them (Rule 500.7(b)). The subpoena has to state the style, cause number and court of the suit (Rule 176.1), so it requires a case already on file. Service still has to be made by a sheriff, constable or nonparty adult.
How much does it cost to subpoena someone in Texas?
The statutory witness fee is $10 for each day the witness attends court, and the party who summons the witness pays one day's fee when the subpoena is served (CPRC § 22.001). A records custodian asked to produce or certify records is entitled to $1 (§ 22.004). A nonparty producing documents in discovery is owed its reasonable costs of production (Rule 205.3(f)). Service by a sheriff, constable or process server carries its own charge, which Rule 176 does not set.
What happens if you are subpoenaed and don't want to testify in Texas?
Not wanting to testify is not a ground for ignoring the subpoena. A person served must comply unless discharged by the court or by the party who summoned the witness, and a testifying witness must return day to day until discharged (Rule 176.6(a)). The routes out run through the court: objections, a motion for protective order, or a privilege claim. Disobeying without adequate excuse may be punished as contempt (Rule 176.8(a)).
How far in advance must a subpoena be served in Texas?
Rule 176 sets no fixed number of days. The party issuing it must avoid imposing undue burden, and in ruling on objections or a motion for protection the court must allow adequate time to comply (Rule 176.7). Other rules supply the deadlines. An oral deposition notice must be served a reasonable time before the deposition (Rule 199.2(a)), a notice of deposition on written questions at least 20 days before (Rule 200.1(a)), and a nonparty document notice at least 10 days before the subpoena itself (Rule 205.2).
When a company is subpoenaed in a lawsuit it is not part of, the rules give its response some structure. Documents may be produced as kept in the usual course of business, or organized and labeled to match the request, and privileged material may be withheld if the company follows the withholding procedure of Rule 193.3 (Rule 176.6(c)). If the subpoena seeks testimony from the company and describes the topics with reasonable particularity, the company designates one or more people to testify on matters known or reasonably available to it (Rule 176.6(b)). A subpoena from a lawsuit in another state is not served directly in Texas. The party submits it to a Texas district or county clerk in the county where discovery will occur, and the clerk issues a Texas subpoena (Rule 201.3(b)).
- Before the compliance date and time stated on the subpoena: written objections to producing documents, and any motion for protective order, must be served or filed by then (Rule 176.6(d), (e)).
- For a trial or hearing subpoena, objections may instead be raised before the court at the time and place set for compliance (Rule 176.6(f)).
- Whether the witness fee was tendered with the subpoena matters. No fine or attachment may follow without an affidavit that required fees were paid or tendered (Rule 176.8(b)).
- Privileged documents may be withheld, with a statement that material was withheld, the request it relates to and the privilege asserted (Rules 176.6(c), 193.3(a)).
- People and companies served commonly review the subpoena with a Texas lawyer who handles civil litigation before the compliance date.