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- in Courtroom Trial Practice
- by Stephen Gustitis
When Texas criminal defense lawyers need to subpoena an out-of-state witness they face serious logistical challenges. Texas Code of Criminal Procedure Article 24.28, sec. 4 authorizes us to summons a witness from another state . . . but it’s a chore. In fact, you might just pull your hair out before all is said and done.
During our last Bryan-College Station death penalty defense we secured sixteen (16) subpoenas for witnesses living beyond our Texas borders. Plan on 30-90 days of work to complete the process and to get your witness served. (But will the subpoenaed witness actually get on the bus, plane, or train to transport them to your jurisdiction? Logistical challenge, indeed!)
Your most valuable asset is a licensed attorney and investigator in the sister-state involved. They do the heavy lifting for you. If you can, hire a lawyer who’s done this before. Pay them whatever they want . . . it’ll be worth the money. But whether inexperienced or a seasoned pro, you need dependable help and folks who won’t drop the ball. Furthermore, be prepared to pay for witness travel and lodging expenses in advance, or at least be ready to assure the sister-state judge these expenses are covered. Although not a detailed and exhaustive “how-to” primer, here’s how we get this difficult job done.
The first step is filing an application for the out-of-state witness with your Texas court where the trial is pending. This application must assert the witness possesses material evidence and is needed to defend your client. The application must assert the last know location of the witness, how long the witness is needed, and which States the witness must travel through to arrive in Texas. The application must further assert these States will give the witness protection from arrest and service of civil and criminal process in connection with matters arising before their entrance into said State. The Texas court judge must “Certify” these facts are true and enter an “Order” advising the sister-state judge the presence of such witness is necessary for the administration of justice. (That was the easy part).
Next, a certified copy of this Texas Order must be filed in the County and State where your witness is located. The judge in said County and State must conduct a hearing and determine whether the witness is material, necessary, and whether complying with the subpoena will cause the witness undue hardship. You’ll need the help of your sister-state attorney (and probably the corresponding County clerk) to determine the proper titles for these filings and how to get a hearing set. Furthermore, your sister-state investigator will work with the attorney and be invaluable in locating your witness and bringing them before the court for this application hearing. Often times the witness can waive their appearance and agree to be served. Otherwise, the witness must come to the County courthouse and participate in the application hearing.
Once the application hearing occurs in the sister-state, said judge can issue an Order to the witness to appear at the time and place of your Texas trial. The Order commands the witness to appear for testimony as requested (or negotiated). But remember, getting the witness on the plane with ticket, boarding pass, and proper identification is beyond the scope of this primer. Obviously, you’ll need the help of your investigator to assure your witness makes the bus stop on time.
Subpoenaing an out-of-state witness is complicated, error-proned, and never guaranteed. The relationships you build with out-of-state attorneys and investigators are invaluable in making the process smooth (as possible) and successful. Pay them whatever they want! And remember you may be asked to return the favor someday . . . always be willing to help.