Subpoenas, particularly of non-parties, come up in some way in virtually every Texas medical malpractice lawsuit.
Under Texas law, an attorney may independently issue a subpoena in a pending lawsuit. In other words, a discovery or trial subpoena doesn’t have to be issued directly by a judge.
Texas Rule of Civil Procedure 176 defines the requirements for a valid subpoena, including the subpoena must:
• Issued in the name of The State of Texas.
• State the style of the lawsuit, it’s cause number, and court in which the suit is pending.
• The date the subpoena was issued.
• Identify the person to whom the subpoena is directed.
• State the time, place, and nature of the action required by the recipient of the subpoena. The action may include appearing for testimony at a deposition or trial with or without producing identify documents. The action may also not require testimony, but only document production.
• Identify the party and attorney, if any, is instance the subpoena is issued.
• Be signed by the person issuing subpoena, which is usually attorney reporting.
• State the text of Rule 176.8(a).
A valid subpoena may be served by any sheriff or constable in the State of Texas, or any person who is not a party to the lawsuit who is at least 18 years old. From a practical perspective, most attorneys use private process servers to serve subpoenas. To serve a subpoena, the subpoena must be delivered to the recipient along with the witness fee, which is currently $10.00.
Process servers request that the witness sign an acknowledgment of accepting the subpoena. In the alternative, the processor will make a statement with details about how proper service was effectuated.
Unfortunately, some parties try to evade service of suit or subpoena. I’ve never understood the logic of this, but some physician defendants in medical malpractice suits must have believed if they don’t cooperate with process server that the lawsuit would just go away. It doesn’t work that way.
Accepting service of a lawsuit or subpoena doesn’t mean that you agree with the allegations or the subpoena. It doesn’t waive the any rights of the recipient to file objections, or a motion to quash the subpoena or obtain protection from the court.
It’s important to remember that subpoenas issued by a court or attorney in Texas may be enforced under contempt of court, which can include a fine or imprisonment.
