Subpoenas are court orders that require you to participate in a trial in some capacity – either by testifying on the record or by providing specific documents or other relevant physical evidence. Any attorney admitted to practice law in Texas can issue a subpoena. 

Subpoenas can typically be issued by a judge, a court clerk, or an attorney representing a party in a legal case; in some situations, certain government agencies or administrative bodies may also have the authority to issue subpoenas depending on their jurisdiction and the nature of the investigation. 

A witness’s attorney of record can also serve a subpoena, which is different from issuing one.

What is a Subpoena?

Subpoenas (pronounced suh-pee-nah) are court orders. They require you to participate in a trial. This can be done through:

• Testimony
• Deposition
• Provide requested documents
• Provide evidence

It’s possible that you may be asked to give both evidence and testimony.

According to the Texas Code of Criminal Procedure Article 24.01, a subpoena may be issued to summon one or more persons to appear:

• Before a court to testify in a criminal action at a specified term of the court or on a specified day;  on a specified day
• Before an examining court
• At a coroner’s inquest
• Before a grand jury
• At a habeas corpus hearing
• In any other court proceeding in which the person’s testimony may be required.

When you receive the subpoena, certain procedures must be followed. This is called being “served.” 

Who Can Issue a Subpoena?

• Judges and magistrates 
• Attorneys representing parties in a legal case can generally request and issue subpoenas on behalf of their clients
• Notary publics
• Court clerks
• Government agencies: Certain regulatory agencies or investigative commissions may have the power to issue subpoenas related to their area of jurisdiction. 

In one dramatic Texas example, when Robert Roberson was slated for execution in October 2024 despite questions about his innocence, the state’s House Criminal Jurisprudence Committee subpoenaed the death row inmate to testify before the committee the week after his planned execution. This led a court to suspend his execution.

Why Would an Attorney Issue a Subpoena?

Lawyers issue subpoenas in all sorts of types of cases. This includes:

• Criminal cases: In a felony case, a defendant’s attorney, prosecutor, or the defendant must apply to the clerk of the court to issue a subpoena for a witness. The application must include the witness’s name, location, and vocation (if known) and state that the testimony is relevant.
• Driver’s license hearings: A Texas attorney can issue up to two subpoenas for a driver’s license hearing, also sometimes called an Administrative Licence Revocation (or ALR) hearing. The attorney must use the State Office of Administrative Hearings form. 
• Civil cases: A subpoena issued in a civil case must be issued in the name of “The State of Texas” and include several details, such as the court, the date, the person being subpoenaed, and the action required. 

There are several reasons why an attorney would want to subpoena witnesses.

• To compel testimony: Subpoenas can require a witness to appear in court to testify about what they know about a crime. This often includes witnesses, including law enforcement, experts, or bystanders. 
• To produce documents: Subpoenas can be used to require someone to hand over documents, electronically stored information, or objects
• To inspect premises: A subpoena can be used to require someone to allow entry to their property so that it can be inspected, measured, or photographed
• To gather financial records: Subpoenas can be used to gather financial records, such as debts, bank accounts, and real estate holdings. This is common in family law cases
• To obtain information about a child: In custody or adoption cases, subpoenas are used to gather information about a child’s birth parents, their consent, and other relevant factors. 
• To gather evidence in domestic violence cases: Subpoenas can help gather evidence from witnesses, law enforcement, and medical professionals.

Attorneys also use subpoenas to gather evidence and testimony from nonparties, including family members, friends, teachers, doctors, and law enforcement. 

Who Can Serve a Subpoena?

In Texas, a subpoena can be served by anyone at least 18 years old and not a party to the case. This includes: 

• A sheriff or constable 
• A marshal or deputy marshal 
• The witness’s attorney of record (if the witness is a party and is represented by an attorney)
• A licensed process server 

How is a Subpoena Served?

Being served probably won’t be as dramatic as the examples you’ve seen on TV crime dramas or in real life through the federal government (i.e., the Stormy Daniels “hush-money” case or Hillary Clinton’s emails).

A subpoena is served by delivering a copy to the witness. This can be done by: 

• Hand-delivering it
• Electronically transmitting it to a witness’s last known electronic address 
• Mailing it by certified mail to the witness’s last known address 

The server must also provide the witness with one day’s witness-attendance fee and the legal mileage allowance (unless the United States requested the subpoena, a federal officer, or a federal agency). 

Serving a subpoena is not the same as issuing one. If you’re being served, that means a third party delivers the order to you, obtains your signature acknowledging that you’ve received the document, and files documentation of receipt with the State Office of Administrative Hearings. 

Typically, subpoenas are delivered by hand. This is the most legally sound way to have them delivered.

The person who serves the subpoena must document the following:

• Date
• Time
• Location of service

Typically, you must sign a “proof of service” form.

In some limited circumstances, the subpoena may be allowed to be served by certified mail, email, or by reading the subpoena to the recipient.

What Does a Subpoena Contain?

Subpoenas must follow certain requirements and cover specific details, including:

• Your name
• The issue date
• The case number
• The court
• The name and signature of the person who issued the subpoena
• What the subpoena requires you to do
• The time, date, and place where you need to appear

What Will Happen When You Receive a Subpoena?

After you’ve signed the document, you must comply – or provide an objection. Otherwise, you could be held in contempt of court.

If you’ve been served, its always a good idea to consult with an attorney to ensure that the order is valid and that you’re fulfilling the requirements. After that, you will need to either turn in the requested documents or attend your scheduled court appearance.

Objections can be as straightforward as noting an incorrect date, a missing signature, or objecting to the location. In Texas, witnesses are not required to have to travel more than 150 miles.

Other potential objections include:

• Broad requests
• Irrelevancy to the case
• They’re requesting privileged information
• Invasion of privacy
• Involves proprietary business information
• The other party could get the same evidence elsewhere, without your participation

Some of these may lead to modification of the subpoena rather than complete dismissal.

How Many Days Before Trial Must a Person Be Served?

Courts must give you a reasonable amount of notice before you have to appear. This means that you must get the subpoena at least five days before the trial in which you need to appear. 

If the subpoena requires documents, you must be given a reasonable amount of time to track down the documents to comply. That timeframe will depend on:

• The number of documents requested
• How complicated it may be to access them

Can You Refuse a Subpoena?

No. You can attempt to dodge the process server, as Texas Attorney General Ken Paxton allegedly tried in 2022. It’s unlikely, though, that this will be a long-term solution. Eventually, the process server will catch up with you. Some process servers will go to extreme lengths to deliver documents, as evidenced when actor Olivia Wilde was served with child custody documents while she was on stage speaking during a CinemaCon event in Las Vegas, with more than 4,000 people watching.

Once you’ve officially been served, failure to comply will have serious consequences. A subpoena is a court order. Failure to cooperate could mean a contempt of court charge. The penalty for contempt of court in Texas is a fine of up to $500 for a felony case or $100 for a misdemeanor case. You could also be arrested and sentenced to up to six months in jail.

If you think the subpoena is unreasonable, consult an attorney and file an objection.

What Is the Difference Between a Subpoena and a Summons?

Summons: An official notification must be provided if you’re sued. It notifies you of the lawsuit against you so that you can prepare a defense. Unlike subpoenas, only a certified process server or sheriff can serve a summons.

Subpoena: This is an official notification that you’ve been ordered to participate in a lawsuit by providing evidence, testimony, or documents. Subpoenas can be issued to witnesses who aren’t directly involved in the case.