A subpoena is a court order commanding a person to appear and give testimony at a deposition, trial, or other court hearing, and/or to produce documents. Employees of governmental entities are frequently subpoenaed in cases in which their employer is not a party. For example, public school teachers are often subpoenaed to testify in family disputes over child custody, and to produce a student’s school records. In the case of cities and colleges, many police officers are served with subpoenas to testify in domestic violence cases. Frequently, these subpoenas are served at the last minute and with no advanced warning. While future articles will address the procedure for responding to subpoenas from investigative agencies such as the State Board of Educator Certification, this article addresses what a governmental entity should do when its employee is served with a subpoena to testify or produce documents in a Texas state case in which his or her employer is not a party.

First, an employee should never ignore a subpoena. All subpoenas in Texas must include a written warning explaining that the failure to comply with the subpoena could result in the recipient being held in contempt of court. Therefore, the first thing an employee should after receiving service is notify his or her supervisor.

When the employee notifies his or her supervisor, the employee should be prepared to give the following information:

  • Exactly where, how, and when the employee was served with the subpoena;
  • How much money accompanied the subpoena;
  • Whether or not the attorney urging the subpoena first contacted the employee or someone else within the organization to conference about the testimony or documents sought;
  • Whether the employee has a reason she or he cannot comply with the subpoena (ex: work obligations, planned vacation, health concerns, etc.);
  • Whether the employee has any knowledge of the matter that is the subject of the subpoena;
  • Whether the subpoena requests confidential documents;
  • A complete copy of the subpoena.

Sometimes the subpoena clearly explains what documents should be produced and gives the subpoenaed individual enough advanced notice to appear and testify or to produce the documents. In these cases, contacting your organization’s attorney may still be necessary if the employee needs advice about testifying in court, or if the custodian of records has questions about completing a business records affidavit.

However, most subpoenas are deficient in at least some respect. Many subpoenas served on government employees fail to give sufficient notice, fail to accurately describe the records sought, or violate the Texas Rules of Civil Procedure or local county rules. In these cases, legal counsel may be retained to consult with the issuing attorney, or to file a motion to quash the subpoena. When your organization’s attorney contacts the attorney who issued the subpoena, he or she should request that the witness be released from the subpoena, or that the subpoena be reformed to be more reasonable. For example, the attorney may agree to permit the witness to simply produce records via mail and sign a business records affidavit, without the necessity of an appearance. Or, sometimes a judge will permit a witness to appear telephonically if travel is an issue. All agreements between your organization’s attorney and the issuing attorney should be in writing, and the subpoenaed employee should be promptly notified of his or her new obligations.

If the issuing attorney will not alter the terms of the subpoena, your organization’s attorney should consider filing a motion to quash. A timely filed motion to quash immediately relieves the subpoenaed employee from having to comply until the issuing attorney requests a hearing on the motion. Therefore, if your organization believes there is any reason the employee may not be able to comply with the subpoena, you should promptly contact legal counsel.

There are a multitude of grounds for quashing a subpoena. For example, a subpoena may be quashed if it:

  • Places an undue burden on the witness, such as giving only 24 hours’ notice, or requiring testimony on a date the witness is unavailable because of a planned vacation;
  • Requires the witness to appear more than 150 miles from the place the witness resides or was served;
  • Fails to include the required $10 witness fee (with an additional $1 if documents must be produced);
  • Requires the employee to give testimony about matters for which he or she has no knowledge;
  • Requires the production of documents that are confidential, such as student records protected by the Family Rights and Privacy Act or confidential police department files; or
  • Is overly broad, requesting records that are unrelated to the dispute.

Additionally, some jurisdictions have local rules that must be followed when subpoenaing a government entity. For example, before serving a government employee with a subpoena in Collin County, an attorney must consult with the governmental entity to determine whether the individual to be subpoenaed has knowledge of the matter at-issue in the case. Few attorneys know and follow this rule.

After a motion to quash is filed, the opposing attorney has the opportunity to request a hearing. Your organization’s attorney will be required to attend this hearing to present the case for why the employee should not have to comply. The employee should not attend this hearing. At this hearing, the judge will determine whether the employee must comply with the subpoena. If confidential records were requested, the judge may issue a protective order to ensure the records do not enter the public domain. If no hearing is requested, the employee is relieved of his or her obligations under the subpoena.

While most of the above requires the assistance of legal counsel, it is important for management-level government employees to understand the subpoena process so they can work with their legal team to respond appropriately. Without effective coaching from a supervisor, an employee may disregard a subpoena and be held in contempt of court, putting his or her organization in legal jeopardy. Therefore, supervisors should be ready to ask the right questions of employees who are served with a subpoena and should be ready to facilitate a response through legal counsel.

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.