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Rule 176. Subpoenas (Aug1998)

TEXT

176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must:

(a) state the style of the suit and its cause number; (b) state the court in which the suit is pending;

(c) state the date on which the subpoena is issued;

(d) identify the person to whom the subpoena is directed; (e) state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2;

(f) identify the party at whose instance the subpoena is issued, and the party's attorney of record, if any;

(g) state the text of Rule 176.8(a);and

(h) be signed by the person issuing the subpoena.

176.2 Required Actions. A subpoena must command the person to whom it is directed to do either or both of the following:

(a) attend and give testimony at a deposition, hearing, or trial;

(b) produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person.

176.3 Limitations.

(a) Range.

(1) Trial subpoenas. A person may not be required by subpoena to appear or produce documents or other things at a trial or hearing in a county that is more than 150 miles from where the person resides or is served.

(2) Discovery subpoenas. A person may not be required by subpoena to appear or produce documents or other things in discovery at a location more than 150 miles from where the person resides or is served. However, a person whose appearance or production at a deposition may be compelled by notice alone under Rules 199.3 or 200.2 may be required to appear and produce documents or other things at any location per­mitted under Rules 199.2(b)(2).

(b) Use for discovery. A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.

176.4 Who May Issue. A subpoena may be issued by:

(a) the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party;

(b) an attorney authorized to practice in the State of Texas, as an officer of the court; or

(c) an officer authorized to take depositions in this State, who must issue the subpoena immediately on a request accompanied by proof of service of a notice to take a deposition under Rules 199 or 200, or a notice under Rule 205.3.

176.5 Service.

(a) Manner of service. A subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness's attorney of record.

(b) Proof of service. Proof of service must be made by filing either:

(1) the witness's signed written memorandum attached to the subpoena showing that the witness accepted the subpoena; or

(2) a certified statement by the person who made the service stating the date, time, and manner of service, and the name of the person served.

176.6 Response.

(a) Compliance required. Except as provided in this sub­division, a person served with a subpoena must comply with the command stated therein unless discharged by the court or by the party summoning such witness. A person commanded to appear and give testimony must remain at the place of deposition, hearing, or trial from day to day until discharged by the court or by the party summoning the witness.

(b) Organizations. If a subpoena commanding testimony is directed to a corporation, partnership, association, governmental agency, or other organization, and the matters on which examination is requested are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization.

(c) Production of documents or tangible things. A per­son commanded to produce documents or tangible things need not appear in person at the time and place of production unless the person is also commanded to attend and give testimony, either in the same subpoena or a separate one. A person must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand. A person may withhold material or information claimed to be privileged but must comply with Rule 193.3. A nonparty's production of a document authenticates the document for use against the non­party to the same extent as a party's production of a document is authenticated for use against the party under Rule 193.7.

(d) Objections. A person commanded to produce and permit inspection and copying of designated docu­ments and things may serve on the party requesting issuance of the subpoena - before the time speci­fied for compliance - written objections to pro­ducing any or all of the designated materials. A per­son need not comply with the part of a subpoena to which objection is made as provided in this para­graph unless ordered to do so by the court. The party requesting the subpoena may move for such an order at any time after an objection is made.

(e) Protective orders. A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things may move for a protective order under Rule 192.6(b) - before the time specified for compliance - either in the court in which the action is pending or in a district court in the county where the subpoena was served. The person must serve the motion on all parties in accordance with Rule 21a. A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed.

(f) Trial subpoenas. A person commanded to attend and give testimony, or to produce documents or things, at a hearing or trial, may object or move for protective order before the court at the time and place specified for compliance, rather than under paragraphs (d) and (e).

176.7 Protection of Person from Undue Burden and Expense. The party requesting a subpoena must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena an adequate time for com­pliance, protection from disclosure of privileged mate­rial or information, and protection from undue burden or expense. The court may impose reasonable condi­tions on compliance with a subpoena, including com­pensating the witness for undue hardship.

176.8 Enforcement of Subpoena.

(a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.

(b) Proof of payment of fees required for fine or attachment. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered.

Amended by order of Aug. 4, 1998, eff. Jan. 1, 1999.

Notes and comments: Comments to 1999 change: This rule combines the former rules governing subpoenas for trial and discovery. When a subpoena is used for discovery, the protections from undue burden and expense apply, just as with any discovery.

ADVISORY OPINIONS

(No. 129) Question: Under Rules 186 to 215 in regard to the taking of depositions, can a married woman be compelled to appear and testify by deposition? Can a married woman be required to attend as a witness and testify at the trial of a cause?

Answer: In our opinion both of the questions should be answered in the af­firmative.

Rule 186 in regard to depositions of witnesses shows by its terms that it contemplates that the testimony may be taken by deposition "of any witness, male or female." Rule 176 expressly provides for the subpoenaing of "any witness or witnesses, male or female" who reside in the county to enforce their attendance in person at the trial. Both of these rules were taken without change from the Acts of the 46th Legislature (1939) page 323, and the purpose of said legislative enact­ment, as shown by the caption and the emergency clause, was to authorize the compulsory attendance of females to give testimony both in person and by deposi­tion. The emergency clause of the Act states that "the fact that females may not now be compelled to appear as witnesses, even though duly summoned, creates an emergency ... "

Under said legislative act of 1939, and also under the rules which carried forward said enactment, it is our opinion that any female, whether married or un­married, can be compelled to attend court and testify in person or can be compelled to testify by deposition in the same manner and under the same circumstances that a male witness can be com­pelled to testify in person or by deposi­tion.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).