What Is a Subpoena? Civil and Criminal Texas Procedure
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Table of Contents
Two types of subpoenas — witness and duces tecum
Subpoena ad testificandum (witness subpoena): commands you to appear at a deposition, hearing, or trial to give testimony. Subpoena duces tecum (subpoena for documents): commands you to produce documents, records, or physical items. Combined subpoena: requires both appearance and production. Subpoenas can be issued in both civil and criminal proceedings, by both parties and the court. The party seeking testimony or documents requests issuance from the clerk of court or arranges issuance through an attorney.
Texas civil subpoenas — Rule 176
Texas Rule of Civil Procedure 176 governs civil subpoenas. Key elements: Issuance — by court clerk or attorney as officer of court (Rule 176.4); Form — must comply with Rule 176.1 specifications; Geographic scope — Texas residents can be compelled to appear within 150 miles of their residence or county of business; Time — at least 7 days notice typically required for production subpoenas; Service — must be personal service on the person commanded; Objection — recipient can file motion to quash or for protective order; Witness fees — $10/day plus mileage ($0.30/mile from witness's residence) must accompany the subpoena.
Texas criminal subpoenas — CCP Article 24.01-24.28
Criminal subpoenas can be issued by the prosecutor, defense counsel, or the court. Issuance — by clerk on application; Service — by sheriff, constable, or any disinterested person 18+; Geographic scope — anywhere in Texas; Compulsion — subpoenaed witnesses can be taken into custody (attached) and brought to court if they fail to appear (CCP Art. 24.12). The state can compel witnesses to testify in criminal cases unless privilege applies (5th Amendment, attorney-client, spousal, clergy-penitent, journalist shield in limited cases). Defendants have Sixth Amendment Compulsory Process right — defense can subpoena witnesses on equal footing with prosecution.
What to do if you receive a subpoena
Steps for any subpoena: (1) Read it carefully — note the date, time, location, what you must bring; (2) Don't ignore it — ignoring a subpoena can result in contempt charges, fines, jail; (3) Check service — was it properly personally served? Improperly served subpoenas may be voidable; (4) Consider counsel — particularly for grand jury subpoenas, federal subpoenas, or subpoenas in cases where you may have personal exposure; (5) Privilege analysis — do 5th Amendment, attorney-client, or other privileges apply to some/all responsive material? (6) Production scope — are documents overly broad? You may move to quash or for protective order; (7) Witness fees — did the issuing party include statutory witness fees? Missing fees may invalidate the subpoena.
Federal subpoenas and grand jury subpoenas
Federal civil subpoenas are governed by Federal Rule of Civil Procedure 45; federal criminal subpoenas by Federal Rule of Criminal Procedure 17. Grand jury subpoenas are particularly important — they can compel testimony and document production in federal criminal investigations. Grand jury target letter: not a subpoena, but indicates you are a target. Grand jury witness subpoena: indicates testimony or document production is required. Defendants under investigation should consult counsel before responding to any federal subpoena. The Fifth Amendment privilege against self-incrimination applies to grand jury testimony and can be invoked.
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Frequently Asked Questions
What happens if I ignore a subpoena?
Contempt of court — civil contempt for civil subpoenas (fines, jail until compliance), criminal contempt for refusing to comply with criminal subpoenas. In Texas criminal cases, witnesses can be "attached" — taken into custody by sheriff and brought to court — under CCP Art. 24.12.
Can I fight a subpoena in Texas?
Yes — by motion to quash or motion for protective order under TRCP 176.6 (civil) or CCP Art. 24.03 (criminal). Grounds include: improper service, overbroad scope, privilege, undue burden, geographic excess. Motion must be filed before compliance deadline.
Do I get paid for being subpoenaed in Texas?
Yes — civil witness fees of $10/day + $0.30/mile mileage under TRCP 176.8. Criminal witness fees of $10/day plus mileage under CCP Art. 35.27. The fees must accompany the subpoena for service to be valid. Federal subpoenas have separate fee schedules.
Can a subpoena compel me to leave my home state?
For Texas civil subpoenas: only within 150 miles of residence or county of business (TRCP 176.3). For Texas criminal subpoenas: anywhere in Texas. For out-of-state appearance: must use Uniform Act to Secure Attendance of Witnesses or interstate compact procedures under CCP Art. 24.27-24.28.
Should I get a lawyer if I'm subpoenaed?
Yes for: grand jury subpoenas; subpoenas in cases where you may have personal exposure; federal subpoenas; subpoenas seeking privileged or sensitive documents; any criminal case subpoena where you're uncertain about scope or privileges. For routine civil subpoenas as a third-party witness, counsel is optional but often helpful.
