I recently attempted to subpoena a probation officer, duces tecum with a criminal probation file, for use in the punishment phase of a trial of that defendant. The defendant committed the new case in the county where I work and is on probation for another case in another county.

I was contacted by the Judge of that court, who told me that their probation files were exempt from subpoena because they belong to the court. He also told me that if I subpoenaed that file he would have the County Attorney of his county file a motion to quash. He also contacted my judge and conveyed the same information. I have spoken to the general counsel for the district judges in that county, and she advised me that they rely on several open records decisions and the federal case of US v. Nixon for their policy of exempting files from criminal subpoena by the State.

Our appellate attorney can find no law supporting this, and Todd Jermstead {sp?}, former State Probation Counsel, says he is aware of no authority for this action. All that I have spoken to regarding this issue are unaware of a similar policy elsewhere in the state. Please note that this is not an open records act request by a defense attorney or civil attorney, but an attempt to put on information contained in the probation file during the punishment phase of the trial.

In my 12 years as a prosecutor I have on many occasions subpoenaed the probation files of an offender from another county for use in either the punishment phase or an mrp\mag. I have never encountered any problem in this regard. No one I have spoken to, save for the folks in the county refusing to honor the subpoena, have heard of this going on anywhere else.

Thoughts, comments...

Issue the subpoena. The judge is wrong, as they are occasionally.

What county is this with this non-cooperation rule?

Terry, it is Harris County. Thanks John, for the advice. I did file the subpoenas, and that apparently got the attention of the probation department, who provided me the actual name of the officer to whom the statement was made by the defendant that I wish to intro in punishment. Of course, when we tried to serve that officer, he was on vacation.

As an aside, the defendant bond forfeited on a trial setting this morning, and no motion to quash was filed nor was I ever contacted by either the County Attorneys office of Harris County or by their general counsel for either the county court at law judges or the district court judges regarding their intent to file a motion to quash. I would think that they would call me first before contemplating filing their motion to quash to see if they could get an agreement, don't you think?

Have you ever heard of such a thing? By the way, congrats John, I have not seen you since the promotion.