| (a) Scope.
(1) A subpoena may command a person to give testimony
for an ALR hearing and/or produce designated documents or tangible
things in the actual possession of that person.
(2) A subpoena must be issued on the form provided
at www.soah.texas.gov.
(3) The party that causes a subpoena to be issued must
take reasonable steps to avoid imposing undue burden or expense on
the person served.
(4) A party or attorney that violates the requirements
of this subchapter will be subject to sanctions as determined by the
judge, including, but not limited to, the loss of authority to issue
subpoenas for ALR hearings.
(5) If a party that requests or issues a subpoena fails
to timely appear at the hearing, any subpoenaed witnesses will be
released from the subpoena and the subpoena will have no continuing
effect.
(b) Attorney-issued subpoenas. An attorney who is authorized
to practice law in the State of Texas may issue up to two subpoenas
for witnesses to appear at a hearing. One subpoena may be issued to
compel the presence of the peace officer who was primarily responsible
for the defendant’s stop or initial detention and the other
may be issued to compel the presence of the peace officer who was
primarily responsible for finding probable cause to arrest the defendant.
If the same officer was primarily responsible for both the defendant’s
stop and arrest, the attorney may issue only one subpoena.
(c) Subpoena request filed with judge.
(1) Not later than ten days prior to the hearing, a
party may file a subpoena request with SOAH that demonstrates good
cause to compel a witness’s appearance in person or by telephone
or video conference, when:
(A) a party intends to call more than two peace officers
to testify as witnesses;
(B) a party seeks to compel the presence of witnesses
who are not peace officers;
(C) a party seeks to compel the presence of the breath
test operator or technical supervisor and, by affidavit based on personal
knowledge, has established a genuine issue concerning the validity
of the breath test that requires the appearance of the witness to
resolve; or
(D) a defendant, who is not represented by an attorney,
seeks to compel the presence of witnesses.
(2) A request for subpoena that is not granted prior
to the hearing may be re-urged at the hearing. If the judge grants
the request for a subpoena at the hearing, the hearing shall reconvene
at a later date for the appearance of the witness.
(d) Judge’s discretion. The decision to issue
a subpoena, as described in subsection (c) of this section, shall
be in the sound discretion of the judge assigned to the case. The
judge shall refuse to issue a subpoena if:
(1) the testimony or documentary evidence is immaterial,
irrelevant, or would be unduly repetitious; or
(2) good cause has not been demonstrated.
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| Source Note: The provisions of this §159.101 adopted to be effective January 20, 2009, 34 TexReg 330; amended to be effective May 30, 2010, 35 TexReg 4145; amended to be effective January 1, 2017, 41 TexReg 9459 |
