Subpoenas During Discovery in Texas

Rules for Issuing Subpoenas in Texas

This post on Subpoenas is the seventh part of a seven-part series on forms of discovery in Texas. The topics are listed below:

Initial Disclosures
Request for Production and Inspection
Request for Motion for Entry Upon Property


In civil litigation, discovery refers to the process where parties in a lawsuit exchange relevant facts and information about a case. In order to facilitate that exchange, the discovery process includes the ability to subpoena, an action which forces a non-party to comply with discovery requests, to appear in person, and/or to produce requested documents. The process for issuing and responding to a subpoena is outlined in Rule 205 of the Texas Rules of Civil Procedure.

Several stipulations about issuing and enforcing a subpoena are specific to location. For example, in order to issue a subpoena, an attorney must be authorized to practice law in Texas. In addition, a Texas court will not enforce a subpoena issued out-of-state against a Texas citizen. Also, a subpoena cannot require a person to appear if that person resides more than 150 miles away from the county in which the subpoena is issued. The discovery subpoena must also state explicitly that it is “issued by the State of Texas.”

Specified in Rule 176.4, the requirements of a subpoena include the style and cause number, the exact name of both the person receiving the subpoena and the person issuing the subpoena, the name and signature of the attorney issuing the subpoena, the date of issue, the required actions, as well as when, where, and how those actions will occur. Rule 176.8(a) also indicates the contempt language to use if the person issued the subpoena fails to follow the stated expectations. In order to object to a subpoena, the recipient of the subpoena files a motion for protective order.

Below is Rule 205, which details the guidelines and procedures for subpoenas:

205.1 Forms of Discovery; Subpoena Requirement.

A party may compel discovery from a nonparty--that is, a person who is not a party or subject to a party's control--only by obtaining a court order under Rules 196.7, 202, or 204, or by serving a subpoena compelling:

(a) an oral deposition;

(b) a deposition on written questions;

(c) a request for production of documents or tangible things, pursuant to Rule 199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written questions; and

(d) a request for production of documents and tangible things under this rule.

205.2 Notice.

A party seeking discovery by subpoena from a nonparty must serve on the nonparty and all parties, a copy of the form of notice required under the rules governing the applicable form of discovery. A notice of oral or written deposition must be served before or at the same time that a subpoena compelling attendance or production under the notice is served. A notice to produce documents or tangible things under Rule 205.3 must be served at least 10 days before the subpoena compelling production is served.

205.3 Production of Documents and Tangible Things Without Deposition. 

(a) Notice; subpoena. A party may compel production of documents and tangible things from a nonparty by serving - reasonable time before the response is due but no later than 30 days before the end of any applicable discovery period - the notice required in Rule 205.2 and a subpoena compelling production or inspection of documents or tangible things.

(b) Contents of notice. The notice must state:

(1) the name of the person from whom production or inspection is sought to be compelled;

(2) a reasonable time and place for the production or inspection; and

(3) the items to be produced or inspected, either by individual item or by category, describing each item and category with reasonable particularity, and, if applicable, describing the desired testing and sampling with sufficient specificity to inform the nonparty of the means, manner, and procedure for testing or sampling.

(c) Requests for production of medical or mental health records of other non-parties.  

If a party requests a nonparty to produce medical or mental health records of another nonparty, the requesting party must serve the nonparty whose records are sought with the notice required under this rule. This requirement does not apply under the circumstances set forth in Rule 196.1(c)(2).

(d) Response. The nonparty must respond to the notice and subpoena in accordance with Rule 176.6.

(e) Custody, inspection and copying.  

The party obtaining the production must make all materials produced available for inspection by any other party on reasonable notice, and must furnish copies to any party who requests at that party's expense.

(f) Cost of production.  

A party requiring production of documents by a nonparty must reimburse the nonparty's reasonable costs of production.

Tex. R. Civ. P. 205

Rules for discovery subpoenas in Texas are complex, further complicated by the fact that many of those rules are unique to the state of Texas. Failing to understand and comply with these rules can have serious repercussions. Hiring a lawyer who is knowledgeable about the requirements and details of Texas litigation will help a litigant avoid the difficulties that result from not issuing or responding to subpoenas appropriately.

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