| (a) This section applies only to subpoenas issued by
a respondent's counsel under section 571.125(f) (concerning the issuance
of a subpoena for a witness in a preliminary review hearing) or 571.130(f)
(concerning the issuance of a subpoena for a witness in a formal hearing)
of the Government Code.
(b) A subpoena must be issued in the name of "The State
of Texas" and must:
(1) state the sworn complaint numbers for the sworn
complaints at issue in the hearing at which the witness is summoned
to appear;
(2) state that the subpoena pertains to a sworn complaint
proceeding before the Texas Ethics Commission;
(3) state the date on which the subpoena is issued;
(4) identify the person to whom the subpoena is directed;
(5) state the time and place of the preliminary review
hearing or formal hearing at which the subpoena directs the person
to appear;
(6) identify the respondent at whose instance the subpoena
is issued and the respondent's attorney of record;
(7) specify with reasonable particularity any documents
with which the person to whom the subpoena is directed shall appear;
(8) state the text of §12.31(i) of this chapter;
and
(9) be signed by the attorney issuing the subpoena.
(c) A subpoena must command the person to whom it is
directed to appear and give testimony at:
(1) a preliminary review hearing; or
(2) a formal hearing.
(d) A subpoena may only direct a person to appear,
with or without documents, and give testimony at a preliminary review
hearing or formal hearing before the commission.
(e) A subpoena may be issued only by the counsel of
record for a respondent in a sworn complaint proceeding before the
commission against that respondent.
(f) Service.
(1) Manner of service. A subpoena may be served at
any place within the State of Texas by any sheriff or constable of
the State of Texas, or any person who is not a party and is 18 years
of age or older. A subpoena must be served by delivering a copy to
the witness and tendering to that person any fees required by law.
If the witness is a party and is represented by an attorney of record
in the sworn complaint proceeding, the subpoena may be served on the
witness's attorney of record.
(2) Deadline for service. A subpoena must be served
upon the person required to appear at least 21 days before the preliminary
review hearing or formal hearing at which the person is required to
appear. The subpoena and proof of service must be filed with the commission
within three days of its service on the person required to appear.
(3) Proof of service. Proof of service must be made
by filing either:
(A) the witness's signed written memorandum attached
to the subpoena showing that the witness accepted the subpoena; or
(B) a statement by the person who made the service
stating the date, time, and manner of service, and the name of the
person served.
(g) Response.
(1) Except as provided in this subsection, a person
served with a subpoena must comply with the command stated therein
unless discharged by the commission or by the party summoning such
witness. A person commanded to appear and give testimony must remain
at the place of hearing from day to day until discharged by the commission
or the party summoning the witness.
(2) If a subpoena commanding testimony is directed
to a corporation, partnership, association, governmental agency, or
other organization, and the matters on which examination is requested
are described with reasonable particularity, the organization must
designate one or more persons to testify on its behalf as to matters
known or reasonably available to the organization.
(3) A person commanded to appear with documents must
produce the documents as they are kept in the usual course of business
or must organize and label them to correspond with the categories
in the demand.
(4) A person commanded to appear at a hearing must
file any motion to quash the subpoena or objection to a requirement
to appear with certain documents with the commission no later than
the 14th day before the hearing at which the person is directed to
appear. Commission staff may move to quash a subpoena or object to
appearance with certain documents in the same manner as the person
commanded to appear by the subpoena. The filer of a motion to quash
or objection to a requirement to appear with certain documents must
serve the motion or objection on the proponent of the subpoena in
person, by mail, by commercial delivery service, by fax, by email,
or by other such manner as the presiding officer of the commission
may direct, no later than the deadline for filing the motion to quash
or objection to appearance with documents with the commission. After
affording commission staff and the person commanded to appear an opportunity
to move to quash the subpoena or object to appearance with certain
documents, and affording the proponent of the subpoena an opportunity
to respond to the motion to quash or objection to appearance with
documents, the commission's presiding officer shall rule on a motion
to quash or objection to appearance with documents.
(5) A person commanded to attend and give testimony,
or to produce documents or things, at a preliminary review hearing
or formal hearing may object to giving testimony or producing documents
at the time and place specified for the hearing, rather than under
subsection (g)(4) of this section.
(6) A party's appearance with a document in response
to a subpoena directing the party to appear with the document authenticates
the document for use against that party in any proceeding before the
commission unless the party appearing with the document objects to
the authenticity of the document, or any part of it, at the time of
the party's appearance, stating the specific basis for objection.
An objection must have a good faith factual and legal basis. An objection
made to the authenticity of only part of a document does not affect
the authenticity of the remainder. If objection is made, the party
attempting to use the document should be given a reasonable opportunity
to establish its authenticity. The requirement that the commission
provide a reasonable opportunity to establish the document's authenticity
may be satisfied by the opportunity to present a witness to authenticate
the document at a subsequent hearing before the commission.
(h) A counsel for a respondent issuing a subpoena must
take reasonable steps to avoid imposing undue burden or expense on
the person served. In ruling on a motion to quash or objection to
appearance with documents, the presiding officer must provide a person
served with a subpoena an adequate time for compliance, protection
from disclosure of privileged material or information, and protection
from undue burden or expense. The presiding officer may impose reasonable
conditions on compliance with a subpoena, including compensating the
witness for undue hardship.
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