1. Subpoenas and Expunctions
Local Government Seminar January 29, 2015
Subpoenas and Expunctions
Presented by:
Donna L. Johnson

2. What do I do if I receive a subpoena?
Subpoenas
What do I do if I receive a subpoena?

3. Does the Public Information Act apply?
Generally, no; but see,
Hobson v. Moore, 734 S.W.2d 340 (Tex. 1987)
Texas Supreme Court recognized exceptions to the PIA are also privileges in civil litigation for law enforcement investigations.
Also, see:
In re Westwood Affiliates, L.L.C., Relator, 263 S.W.2d 176 (Tex.App.–Houston [1st Dist.] 2007)
“…the records, documents and physical evidence related to the Houston Police Department’s investigation … [shall] be protected from the disclosure, release and production requested pursuant to subpoena issued by Defendant.”

4. Required Actions
A subpoena must command the person to whom it is directed to do either or both of the following:
attend and give testimony at a deposition, hearing, or trial;
produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person.

5. Compliance is Mandatory
Must:
Serve objections;
File a motion to quash or modify the subpoena or motion for protection; or
Comply with the terms of the subpoena

6. Protective Orders
Protective Orders. …, may move for a protective order under Rule 192.6(b)--before the time specified for compliance--...

7. All Responses Are Not The Same…
Responses to subpoena will differ depending upon whether the subpoena is for testimony or documents and many other variables

8. Common Scenarios
Subpoena received by City/PD issued in a civil case in Family Court – underlying case involves allegations of child abuse by one of the parents
Subpoena received by City/PD issued in a civil case in District Court – underlying case is an ongoing criminal investigation

9. Protection of Person from Undue Burden and Expense
A party causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or expense on the person served.

10. Subpoenas in Criminal Proceedings
Code of Criminal Procedure apply
Rules of Civil Procedure may apply

11. Subpoena Duces Tecum
If a witness have in his possession any instrument of writing or other thing desired as evidence, the subpoena may specify such evidence and direct that the witness bring the same with him and produce it in court.

12. Refusing to Obey
If a witness refuses to obey a subpoena, he may be fined at the discretion of the court, as follows: In a felony case, not exceeding five hundred dollars; in a misdemeanor case, not exceeding one hundred dollars.

13. What is Disobedience of a Subpoena?
It shall be held that a witness refuses to obey a subpoena:
1. If he is not in attendance on the court on the day set apart for taking up the criminal docket or on any day subsequent thereto and before the final disposition or continuance of the particular case in which he is a witness;
2. If he is not in attendance at any other time named in a writ; and
3. If he refuses without legal cause to produce evidence in his possession which he has been summoned to bring with him and produce.

14. Expunctions
A primary goal of expunction statute is to permit the expunction of records from wrongful arrests.  
Chapter 55 of Code of Criminal Procedure provides the process for expunction of criminal records.

15. Right to Expunction
Trial court has no discretion to deny a petition for expunction provided that the statutory requirements are met.  In re A.G., 388 S.W.3d 759 (Tex.App.-- 8 Dist. 2012)