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How to Domesticate an Out of State Subpoena in Texas under TRCP 201.2

Do you need to Domesticate and Serve an Out of State Subpoena in Texas pursuant to Texas Rules of Civil Procedure, Rule 201.2.?

 

Texas Foreign Subpoena Domestication and Service of Process

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201.2 Depositions in Texas for Use in Proceedings in Foreign Jurisdictions.
"If a court of record of any other state or foreign jurisdiction issues a mandate, writ, or commission that requires a witness's oral or written deposition testimony in this State, the witness may be compelled to appear and testify in the same manner and by the same process used for taking testimony in a proceeding pending in this State."

​Do you need to domesticate an out of state subpoena (aka "foreign subpoena") and have it served in Texas pursuant to Texas Rules of Civil Procedure, Rule 201.2?

A Texas subpoena may only be issued by:

(1) an attorney authorized to practice in the Texas;

(2) a Texas court clerk; or

(3) an officer authorized to take deposition in Texas. (TRCP 176.4)

Texas law requires that a subpoena be served at any place in Texas by any sheriff, constable, or person who is not a party and is 18 year of age or older by delivering a copy of the subpoena to the witness and tendering any required fees (TRCP 176.5). 

1) SUBPOENA FOR DEPOSITION:

Texas Rules of Civil Procedure rules that govern subpoenas to non-party witnesses who are being subpoenaed for a deposition: 

In order to issue the Texas subpoena we need a mandate, writ or commission (which would include Letters Rogatory) issued from the court of venue to authorize the issuance of a subpoena by the appropriate authority in Texas; additionally, we need a Notice of Intent to Take Oral (or written) Deposition that the attorney has provided to the opposing party or party's counsel.

The Commission provides the authority to issue a domesticated subpoena; and the Notice provides the specific details of the deposition (details that are generally not a function of, or included in the Commission).

With that writ, mandate or commission and the Notice of Intent to Take Deposition from the attorney (a copy of which has been forwarded to the opposing party or party's counsel), we can issue the Texas subpoena. 

 

To summarize, the requirements are as follows: 

 

1) The first requirement is the mandate, writ or commission (which would include Letters Rogatory) issued from the court of venue to authorize the issuance of a subpoena. 

 

2) The second requirement is the Notice sent to the opposing party (or party's counsel) that sets forth their intention to subpoena the out-of-state witness. The Notice sent to the opposing side must include:

(1) Name of the witness;

(2) Service address of the witness;

(3) Date and time for the witness to comply with the subpoena (or number of days after being served);

(4) Why the witness is being subpoenaed for the deposition or the production of documents (or both);

(5) Who is making the request for the witness to be subpoenaed: Attorney for the Plaintiff or Defendant; and

(6) List of documents or tangible things if the witness is required to produce documents. 

 

If you are subpoenaing a witness only to produce documents, the Commission and the Notice need to be delivered to the witness 10 days before the witness is served with a subpoena.  This is commonly done by certified mail or email if they have the witness' email address. In other cases the Notice can be served by a process server.

 

After 10 days, the witness being subpoenaed for documents only can be served with the subpoena. The subpoena can provide a specific date and time to produce, or it can provide a number of days, i.e., 20 days from the date of receipt of the subpoena.

 

If you are subpoenaing a witness for a deposition via Zoom, then the Zoom instructions would need to be incorporate into the subpoena, or a contact person and contact info for the witness to call or email to get the Zoom instructions prior to the deposition.

Our experienced staff can assist to draft and issue a Texas subpoena pursuant to Texas Rules of Civil Procedure, Rule 201.2 for you same day and have it served right away. Please call or email to have a subpoena domesticated and served in Texas professionally and without delay. 

We can also advance a check at the time of service for the required witness fee pursuant to Texas rules. If the required witness fee is not included at the time of service it may render the subpoena defective.  

Please call or email to have a subpoena domesticated and served in Texas professionally and without delay. 

2) SUBPOENA FOR PRODUCTION OF DOCUMENTS:

Texas Rules of Civil Procedure rules that govern subpoenas to non-party witnesses who are being subpoenaed for records only (without a deposition): 

 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.

What is a Subpoena? 

A subpoena is a document that orders a named individual to personally appear at a trial or hearing to:

1) give testimony (known as a Subpoena Ad Testificandum) or

2) to produce documents or objects to be used at a trial or hearing as evidence (known as a Subpoena Duces Tecum).

 

Subpoena Ad Testificandum – Use this subpoena when an individual's testimony at a trial or hearing is needed. 

Subpoena Duces Tecum – Use this subpoena when an individual's appearance and production of documents or other objects are needed at a trial or hearing. 

Disclaimer

Due to the rapidly changing nature of the law, there may be times when the material on this page is not current. We have made every effort to provide complete and accurate information of the general rules governing domestication and service of process of subpoenas in Texas. However, we cannot guarantee the current accuracy of the above listed content, it is provided for general information purposes only and is not intended as legal advice. We assume no liability whatsoever and will not be held responsible directly or indirectly for any damages resulting from any errors, omissions, inaccuracies or your reliance on this partial information.

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