I have recently discovered that some defense attorneys in our county are issuing subpoenas themselves and not going through the District Clerk's Office, apparently using Civil Proc. Rule 176.4 (b) which says any attorney can issue a subpoena, as a justification. I haven't directly confronted anyone over this yet. I don't know if it is simple ignorance or intenionally trying to prevent the state from learning who their witnesses at trial will be. Has anyone else dealt with this problem and/or what are your suggestions on how to put a stop to this? It was by accident that I found out about it in the first place.

In the cases where you find out that this has been done, I would file a Motion to Quash the Subpoena in the criminal case based upon the code of criminal procedure arts. 24.03 et al and ask for a quick hearing. Then notify the person who was subpoenaed that you have filed this motion and that they should not comply with the subpoeana until the court has ruled on your motion to quash. All this assumes that you have more than a few hours before compliance is due, and that you have a judge who will not be upset that you have advised a witness to basically disregard a subpoena until further notice.

We have not been made aware of any similar conduct in terms of issuing subpoenas without going through the clerk's office, but every once in a while an attorney will issue a duces tecum for records and ask for them instanter, and the above is the procedure we have gone through.

If the practice is more widespread than just a single, fairly inexperienced attorney, I would have to operate under the assumption that they were trying to avoid the appropriate process and hide something. But otherwise, I'm usually willing to give someone the benefit of the doubt and believe that it is ignorance instead of an attempt to deceive. But that's just me.

As usual, Jana takes the nice approach.

Personally, I would invoke article 1.052 to seek to have the pleadings stricken and ask for sanctions against the lawyer. How do you accidentally use a civil statute to issue a subpoena in a criminal case?

The problem is that we didn't find out about it until the dust settled--after the trial. The actual subpoenas/returns weren't filed until after the trial or maybe during it. If we don't know about it, we can't attack it, quash it, or ask for sanctions--and that's the rub. Maybe it is only the knucklehead(s) in my county that are doing this.

I think it is a crime.
Look at Tx. Penal Code Section 32.48 - Simulating Legal Process.

Even if the subpoena were quashed, this would not keep the witness from testifying if they chose to do so. In my experience the defense normally only tries to call witnesses who are sympathetic to their case, so I think the simulation idea may be the best way to end the practice.

I just got wind that a defense attorney is issuing his own subpoenas here, too. (A witness brought it over & I copied it.) Ed Klein, are you still out there? How did your case turn out? Did you file misdemeanor charges on the defense attorney? Did you file a motion to quash? Anyone else out there encounter this problem? How did you deal with it? When we first saw it, my knee jerk reaction was to go to the county attorney and ask her to pursue simulating legal process charge. (The defense attorney is not a newby to the legal profession.)Looking forward to your replies.

Ed is now Judge Klein. Stephanie Stephens is the DA in Nacogdoches now and may know how the issue was resolved.

This issue has come up in recent months with two different local attorneys. In neither case was there enough notice of what was going on to do anything about it. In one case the witnesses who had been "subpoenaed" were not called, and in the other the judge elected to allow the witness to be called anyway, apparently in the interest of judicial economy. I have tried to put the offending attorneys on notice that we don't think much of this and asked them to peruse PC 32.48 for their own edification in the event of a repeat performance. I would be curious to know if anyone else has had this experience recently. Is this a tactic being taught at a defense seminar somewhere?

Defense counsel did up their own duces tecum to the "custodian of records" for the DPS lab in Garland. The "subpoena" was not issued by the clerks office. No copy was placed in the clerks file, nor sent to our office. In addition, the records requested were, IMO, way overbroad in scope. The "subpoena" was served by fax. The custodian was directed to appear with these voluminous records on the morning of jury selection for our trial, March 11.

So, do I file a motion to quash now, or tell DPS that it is an invalid subpoena that they are not required to honor, then wait for the blow-up at trial?

Other jurisdictions may be different, but our judges HATE it when they think we may be laying behind the log. If it happened here, I think we would need to go ahead and file the motion to squash.

That sounds fraudulent. A motion to quash is the better practice, but the process chosen by the defense attorney is misleading, deceptive and likely unethical. Perhaps a follow-up grievance is appropriate for misuse of process. Would it be tampering with a government record to cause someone to believe that the subpoena was legitimate?

I had started a response similar to Scott's but got interrupted. Our judges expect defense attorneys to lay behind the log, but if the State does it, it's a miscarriage of justice.
Also, our jurisdiction has standing pretrial orders in which we are required to file any such motions seven days before our pretrial, so we couldn't wait it out anyway. Regardless, I'd file the Motion.

Just became aware of this happening in our county. Any updates on this or anyone have a motion to quash form they would be willing to share when the defense attorney issues his own subpoena to a custodian of records (burglary of building victim) in a criminal case?