| (a) A party that issues or is granted a subpoena duces
tecum shall be responsible for having the subpoena served, and may
be required to advance the reasonable costs of reproducing any documents
or tangible things requested.
(b) A subpoena must be served at least five days before
the hearing, and must include a copy of the notice of hearing or other
information that is sufficient to notify the witness of how to appear,
including instructions and information for joining a videoconference
or telephone conference call if applicable.
(c) Method of Service. A subpoena must be served by
delivering a copy to the witness. 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 is served by:
(1) hand-delivering a copy of the subpoena to the witness
in-person;
(2) electronically transmitting a copy of the subpoena
to the last known electronic address of the witness, with acknowledgment
of receipt; or
(3) mailing a copy of the subpoena by certified mail
with return receipt requested, or delivering a copy of the subpoena
by express delivery service with signature required, to the last known
address of the witness unless:
(A) the applicant for the subpoena requests in writing
that the subpoena not be served by certified mail or express delivery;
or
(B) there is insufficient time to ensure delivery of
the subpoena to the witness five days before the hearing for which
the witness is being subpoenaed.
(4) If the witness is a party and is represented by
an attorney of record in the proceeding, then the subpoena may be
served to the witness's attorney by a method described in this section.
(5) If the witness is a peace officer, then the subpoena
may be served by an accepted method of alternative service established
by a peace officer's law enforcement agency.
(d) After a subpoena is served upon a witness, the
subpoena and the return of service of the subpoena must be filed at
SOAH at least three days prior to the hearing. The return must show:
(1) the date, time, and manner of service, if served
by hand delivery;
(2) the acknowledgment of receipt, if served by email;
(3) the return receipt if served by certified mail;
(4) the signed proof of delivery, if served by express
delivery service; or
(5) other confirmation as appropriate, if served to
a party's attorney or a peace officer's law enforcement agency.
(e) A subpoenaed witness whose assigned work location
or residence is more than 150 miles from the designated hearing location
is entitled to appear by telephone or videoconference.
(f) A party seeking the admission of subpoenaed documents
or audiovisual evidence at the hearing must prefile the exhibits in
advance of the hearing in the manner specified by §159.53 of
this chapter.
(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.
|
| 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; amended to be effective August 4, 2024, 49 TexReg 5758 |
