Texas subpoenas: producing the documents authenticates them against you

A non-party asked for documents usually thinks about burden and confidentiality. Texas adds a consequence that sits outside both: the act of producing settles the authenticity question against the producer.

Production is authentication

Rule 176.6(c) ends with a sentence that belongs as much to the law of evidence as to discovery:

A nonparty's production of a document authenticates the document for use against the nonparty to the same extent as a party's production of a document is authenticated for use against the party under Rule 193.7.

So a records custodian who hands over a file has, by that act, authenticated it against itself. If the non-party later becomes a witness, or a defendant in a related matter, the documents it produced are already authenticated for use against it to the same extent as a party's production would be.

The practical point for a non-party is that "we produced it, but we do not vouch for it" is not a position the rule leaves open. Where authenticity is genuinely doubtful — an unsigned copy, a document of unknown provenance found in the file — that is worth flagging at the time rather than assuming production is neutral.

For the party issuing the subpoena, it is a reason to prefer a subpoena over an informal request. Documents obtained by agreement do not carry the same consequence.

A hundred and fifty miles

Rule 176.3(a):

A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served. However, a person whose appearance or production at a deposition may be compelled by notice alone under Rules 199.3 or 200.2 may be required to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2).

150 miles, measured from residence or the place of service — the person subpoenaing gets the benefit of whichever applies, since serving someone far from home extends the reach.

Note the limit is expressed as a county limit: the appearance may not be required "in a county that is more than 150 miles" away, so the measurement is to the county rather than to a street address.

The exception covers people who can be compelled by notice alone — parties and their officers, directors and employees — who are governed by the deposition location rules instead.

Rule 176.3(b) adds a general restriction: "A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery." A subpoena cannot outrun the discovery rules or the discovery period.

The contempt provision has to be printed on it

Rule 176.1 lists eight required contents. Every subpoena "must be issued in the name of 'The State of Texas'" and must, among other things:

(g) state the text of Rule 176.8(a); and (h) be signed by the person issuing the subpoena.

Rule 176.8(a) is the contempt provision, so the document tells its recipient what disobedience risks — "punished by fine or confinement, or both."

The subpoena must also "identify the party at whose instance the subpoena is issued, and the party's attorney of record, if any," and state the date of issuance.

Three issuers, and the deposition officer must act immediately

Rule 176.4:

A subpoena may be issued by: (a) the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party; (b) an attorney authorized to practice in the State of Texas, as an officer of the court; or (c) an officer authorized to take depositions in this State, who must issue the subpoena immediately on a request accompanied by a notice to take a deposition under Rules 199 or 200, or a notice under Rule 205.3, and who may also serve the notice with the subpoena.

The third route is the one people forget. A court reporter or other deposition officer must issue the subpoena immediately once the request comes with the deposition notice, and may serve the notice along with the subpoena — which collapses two steps into one.

Objections come before the compliance date — and stop that part of the subpoena

Rule 176.6(d) sets no day count. The deadline is the compliance date itself:

A person commanded to produce and permit inspection or copying of designated documents and things may serve on the party requesting issuance of the subpoena - before the time specified for compliance - written objections to producing any or all of the designated materials. A person need not comply with the part of a subpoena to which objection is made as provided in this paragraph unless ordered to do so by the court. The party requesting the subpoena may move for such an order at any time after an objection is made.

Note "the part of a subpoena to which objection is made." The rest of the subpoena remains live, so objections should be aimed at specific requests rather than fired at the whole document.

Protective orders work the same way, and Rule 176.6(e) gives a choice of forum:

A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b)--before the time specified for compliance--either in the court in which the action is pending or in a district court in the county where the subpoena was served.

"Any other person affected by the subpoena" has standing, and the motion may go to the local district court rather than the court hearing the case — which matters when the witness is hundreds of miles from the trial court.

Trial subpoenas are handled in the courtroom

Rule 176.6(f) carves out the trial situation from both routes above:

A person commanded to attend and give testimony, or to produce documents or things, at a hearing or trial, may object or move for protective order before the court at the time and place specified for compliance, rather than under paragraphs (d) and (e).

So a witness subpoenaed to trial does not need to file anything in advance. The objection is made to the judge, at the courthouse, on the day.

Once you are there, you stay

Rule 176.6(a):

Except as provided in this subdivision, a person served with a subpoena must comply with the command stated therein unless discharged by the court or by the party summoning such witness. A person commanded to appear and give testimony must remain at the place of deposition, hearing, or trial from day to day until discharged by the court or by the party summoning the witness.

"From day to day" — attendance is open-ended, and only the court or the summoning party can end it. A witness who assumes a one-day commitment and leaves has not been discharged.

For organizations, Rule 176.6(b) supplies the designation mechanism: where the matters for examination "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."

A person commanded only to produce "need not appear in person at the time and place of production unless the person is also commanded to attend and give testimony, either in the same subpoena or a separate one."

What the court must provide, and what it may

Rule 176.7 states the duty and then constrains the ruling:

A party causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court 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 court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship.

Three things the court must provide — adequate time, privilege protection, and protection from undue burden or expense — and one it may: conditions, "including compensating the witness for undue hardship."

That is a stronger formulation than most states use. A Texas court ruling on a non-party's objection is not choosing whether to protect the witness; it is deciding how.

No fine or attachment without an affidavit about the fees

Rule 176.8(b) is the provision most likely to defeat an enforcement application:

A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered.

An affidavit, from the requesting party or its attorney, confirming that all fees due by law were paid or tendered. Without it, the two most serious sanctions are unavailable however plain the disobedience.

Service itself requires the tender. Under Rule 176.5(a) a subpoena "must be served by delivering a copy to the witness and tendering to that person any fees required by law," and 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." Where the witness is a represented party, service may be made on the attorney of record.

Proof of service is by one of two documents under Rule 176.5(b): "the witness's signed written memorandum attached to the subpoena showing that the witness accepted the subpoena," or a server's statement giving "the date, time, and manner of service, and the name of the person served."

A short checklist

If you are issuing one:

1. Print the text of Rule 176.8(a) on the subpoena, and sign it.
2. Tender the fees at service, and keep the proof. Without an affidavit about fees there is no fine or attachment.
3. Check the 150 miles — measured from residence or place of service, to the county.
4. Use the deposition officer route if you want the subpoena and notice served together.
5. Prefer a subpoena to an informal request where authenticity may matter later.
6. Expect to be ordered to compensate a witness facing undue hardship.

If you have been served:

1. Object in writing before the compliance date, request by request. The objected-to parts are suspended.
2. Move locally if that suits you — the district court where you were served is available.
3. At trial, object in the courtroom; nothing needs to be filed in advance.
4. Remember that producing authenticates. If a document's provenance is doubtful, say so when you produce it.

Where these rules live

• Tex. R. Civ. P. 176 — Subpoenas
• Responding to Texas written discovery
• Texas motion to compel discovery
• Texas discovery levels
• Answering a Texas lawsuit

This page explains what the rules say. It isn't legal advice, and the witness fee statutes referred to in Rule 176.5 are not carried on this site.