On an increasingly frequent basis, the Lubbock CDA is being served with subpoenas for our criminal case files. (I am talking about our CDA file...not the criminal file in the clerk's office.) Usually this occurs when the subject matter of a criminal case produces a civil lawsuit. (e.g. - DWI case results in P/I suit.) The civil lawyers always want our files because they contain all of the police reports, photos, investigative reports, etc. They look at it as "one stop" shopping. I typically move to quash on the basis of attorney work product and I point out that anything we have which is not work product came from some third party (e.g. - the police report) and the requesting party should look to them for their records.

I got a call this morning from a process server, telling me that another subpoena is coming my way, seeking to know why we dismissed a case after indictment. (The defendant is suing the filing agency for defamation. The filing agency wants our file.)

I am interested in how other counties handle this type of situation.

Same way you do. My take is that, like PIA requests, you can't play favorites. You've gotta tell 'em all to take a hike, or let 'em all have your files. We choose the former. And, per the Star-Telegram v. Walker case, your take on the issue appears to me to be correct.

While the criminal case is pending you should be able to abate the civil case until the criminal case is over. There is case law in Texas to that effect. Sorry I don't remember the case cite. As for the second scenario, you are in the lose lose format if you begin helping. You will get the privilege of giving a deposition and maybe even a hearing where your opinions will be batted about like baseballs at home run contests.

Holmes v. Morales, 924 S.W.2d 920

Does anyone out there have a form they use to quash a subpoena (protective order)when civil attorneys are trying to subpoena the Sheriff and DA in the middle of a criminal case for their evidence? Any help would be appreciated

Julie - I will email you what I have. Keep an eye on your inbox.

We quash those sorts of subpoenas on a regular basis.

Email me at tsellars@dallascounty.org and I will send copies of what we use.

I would also greatly appreciate some assistance with such forms.

Would some of y'all email me a few of your motions to quash? The one I have is a few years old and I'd like to update it.

Our criminal case is actually still pending. Yet, the civil case wants our stuff now.

Thanks.

rk

[This message was edited by RK on 01-01-09 at .]

I'm in desperate need of a form Motion myself. Please email me at misti.spacek@co.newton.tx.us.

Thanks!

I am also in need of such a form. We have been served a subpoena for a murder case which is still pending. Please email any forms/motions to kriste.burnett@gmail.com. Thanks so much!

I don't have teh cite at home, but it's in the 2007 TDCAA legislative update book. I'll post it tomorrow.

Records of law enforcement agencies are generally protected from discovery in civil matters when the agency is not a party. Specifically, "information, records, documents, evidentiary materials, and tangible things" are generally protected from discovery if they deal with the detection, investigation, or prosecution of crime and release of the release of such items would interfere with the detection, investigation, or prosecution of criminal acts. Tex. Civ. Prac. & Rem. Code Ann. Sec. 30.006(c)(1)-(2)(Vernon Supp. 2008); see also Hobson v. Moore, 734 S.W.2d 340 (Tex. 1987)(recognizing a law enforcement privilege as to civil litigation).

Jeff and John thanks so much. One concern I have after reading �30.006 is that our office does not employ a peace officer (we do not have any investigators on staff). Do you think we can argue that we can still be covered under that section because we have the ability to employ a peace officer? Don't know if I'm just grasping at straws...

I would certainly try it. You could legally employ a peace officer. The fact that you don't is just a technicality. The statute was meant to cover you. Further, the records being sought are investigation records from a police department, which is certainly a law enforcement agency. You should not be able to circumvent the law by going after the DA's file instead of the police department's.

We are going to trial on Monday on a sexual assault. The victim is an adult with the mentallity of a child. We just got a subpoena duces tecum for all of her journals and diaries in our possession from defendants attorney. We have an open file policy and the defense attorney has viewed our file and such diaries. We want to file a motion to quash, Any forms or suggestions?

I sure would appreciate a copy of a motion to quash as well. I have a civil attorney trying to get copies of citations for burn ban tickets issued during our last burn ban since his client is being sued regarding damage from welding during a burn ban.

I am need of one of these forms that were shared last year. Could someone share one with me? sara.spector@38thda.org. is my email. I would greatly appreciate it!!!!

Thank you Eric for your help. I really appreciated your taking the time to help me.

Ok here are the facts. We are conducting a protective order hearing next August 24th, and my applicant in the protective order has been given a subpoena telling her to appear for a deposition on August 23rd. There is a criminal case as a result of this incident, but the criminal case is in another county. Need some help in quashing the subpoena if at all possible. Thanks!