| (a) A party that issues or is granted a subpoena shall
be responsible for having the subpoena served. The 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 to the case
and is 18 years of age or older. A subpoena must be served by delivering
a copy to the witness. If the witness is a party and is represented
by an attorney of record in the proceeding, the subpoena may be served
on the witness’s attorney. A subpoena may also be served by
accepted alternative methods established by a peace officer’s
law enforcement agency.
(b) A subpoena must be served at least five days before
the hearing.
(c) After a subpoena is served upon a witness, the
return of service of the subpoena must be filed at SOAH at least three
days prior to the hearing. Upon the subpoenaed witness’s appearance
at the hearing, the party that issued the subpoena shall tender a
witness fee check or money order in the amount of $10 to the witness.
In addition, if the witness traveled more than 25 miles round-trip
to the hearing from the witness’s office or residence, mileage
reimbursement must also be tendered at the same time. The amount of
mileage reimbursement will be that listed in the state mileage guide
at https://fmx.cpa.state.tx.us/fm/travel/travelrates.php.
(d) If the hearing is conducted telephonically, the
party that issued the subpoena shall mail the witness fee check or
money order to the witness within one day of the conclusion of the
hearing unless the witness fails to appear at the hearing. Also within
one day of the conclusion of the hearing, the party shall forward
to SOAH a certification that the witness fee or money order was mailed
to the witness. A copy of the certification must be sent to the opposing
party at the time it is filed at SOAH.
(e) If a party that served a subpoena on a witness
fails to appear at a hearing, that party shall mail the witness fee
check or money order to the witness within one day from receipt of
a default decision or any other order issued by the judge ordering
payment of the fee and mileage reimbursement. Also within one day
from receipt of the judge’s order, the party shall forward to
SOAH a certification that the witness fee or money order was mailed
to the witness. A copy of the certification must be sent to the opposing
party at the time it is filed at SOAH.
(f) If special equipment will be required in order
to offer subpoenaed documents or tangible things, the party seeking
their admission shall be required to supply the necessary equipment.
The party requesting a subpoena duces tecum may be required to advance
the reasonable costs of reproducing the documents or tangible things
requested.
(g) Service upon opposing party.
(1) A party that issues a subpoena must serve the opposing
party with a copy of the subpoena on the same date it is issued.
(2) A party that requests a subpoena from a SOAH judge
must serve the opposing party with a copy of the request at the time
it is filed with SOAH.
(3) When a subpoena has been served, and not less than
three days prior to the hearing, a party that has served a subpoena
must provide the opposing party with a copy of the return of service.
(4) If a party fails to serve a copy of a subpoena
or a subpoena return on the opposing party, the subpoena may be rendered
unenforceable by the judge.
(h) Continuing effect. A properly issued subpoena remains
in effect until the judge releases the witness or grants a motion
to quash or for protective order. If a hearing is rescheduled and
a subpoena is extended, and unless the judge specifically directs
otherwise, the party that requested the continuance shall promptly
notify any subpoenaed witnesses of the new hearing date and serve
a copy of the notice on the opposing party.
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| Source Note: The provisions of this §159.103 adopted to be effective January 20, 2009, 34 TexReg 330; amended to be effective December 10, 2014, 39 TexReg 9515; amended to be effective January 1, 2017, 41 TexReg 9459 |
