Ceci n’est pas une subpoena.


Texas lawyers:

One of these (pdf):

is hand-delivered to a witness in a criminal case. Does she have to turn up in Judge Harris’s court (other courts use similar documents) at 8:45 on Monday morning, or can she legally ignore it?

Why or why not?

Extra credit for persuasive incorrect answers.

Double credit for correct answers in verse.

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0 responses to “Ceci n’est pas une subpoena.”

  1. Sorry this is off-topic, but I’d like to hear your thoughts on Rusty Hardin’s representation of Roger Clemens. Seems like letting him talk to govt lawyers and testify before Congress may blow up in Rusty’s face, especially in view of the news today that McNamee has turned over physical evidence that supposedly corroborates his claims.

  2. I was just about to answer when I re-read it and realized you wrote “legally ignore it”.

    I guess I’ll leave it to the experts…

  3. Knowing you, Mark, this is bound to be a trick question, and I’m too tired to scan for errors on the subpoena. So, I plead the 5th.

    Which, incidentally, you can’t fault me for since you stated in an earlier posting that one can always invoke the 5th at any time for any reason.

    Under that theory, I have answered your question perfectly.

  4. I’m not a lawyer. Or even a law student. Or even employed anywhere near the legal profession. But I got one of those last year from the same court (different judge) that looks nearly exactly the same, but it was stamped at the signature instead of a printed calligraphy-looking font. And I’m pretty sure the name matched the actual name of the sheriff, instead of some deputy.

    And Mark, on a side note – blur functions in image editing software like Photoshop don’t truly obscure the text behind it. More reading here and here. Those aren’t exact matches to your anonymization technique, but you can see how the concept could be extended further. I’d recommend blacking it out next time. With the naked eye I can see what month in 2008 pretty easily, and someone armed with software could probably get the rest within a short amount of time.

  5. “notified to appear” sounds like some kind of weasel words that have no meaning at all.

    I think the proper thing to do is call the ADA listed and tell him to never threaten you again because you don’t respond rationally to stupid threats.

    Then wait quietly and see how he responds.

  6. Unless I’m missing something, it’s not signed by the judge or clerk. So, along with the title of your post, I will say this is not a subpoena.

  7. J, I have no idea. That’s a story I haven’t been following.

    AHCL, it’s not a trick question; it’s perfectly clear to anyone who knows the law. Your answer was perfect, but not correct.

    Shane, I’ll bear in mind what you say about blurring when I’m dealing with something mission-critical. I don’t need to fix it this time.

    Gary, I think there’s a better course.

    Ron, you get what you pay for.

    Shawn, you’re our winner! According to the CCP, a subpoena is issued by the judge or the clerk. A threatening note from a deputy (even one as nice as Shirley) is not a subpoena and can therefore legally be ignored.

  8. Funny, I’ve never been hand delivered those. They used to turn up in my mail box all the time. If I wanted to, I could have played dumb and pretended I never got it. Or, I could point out there is no court seal nor judge’s signature on them.

  9. Test, you’d think it would be, wouldn’t you? It’s arguably tampering with a governmental record under PC 37.10(a)(2) if the actor knows that the document is false.

    But whose job would it be to prosecute the sheriff for tampering? The DA’s. And when was the last time a government agent was prosecuted for tampering with governmental records in the course of his work? I’m guessing never.

    Jason, a subpoena can be issued by “a court or clerk”. The court or clerk must sign the subpoena and — as Leviathan says — indicate on it the date it was issued. CCP 24.01, for those following along in the hymnal.

    If you get a real subpoena in the mail, you must obey it even if they can’t prove that you got it. (They can’t punish you for not obeying it if they can’t prove you got it, though . . . .)

  10. Update, four years later: here is the statute that applies: Texas Penal Code Section 32.48.

    § 32.48. SIMULATING LEGAL PROCESS. (a) A person commits an offense if the person recklessly causes to be delivered to another any document that simulates a summons, complaint, judgment, or other court process with the intent to:

    (2) cause another to:
    (A) submit to the putative authority of the document; or
    (B) take any action or refrain from taking any action in response to the document, in compliance with the document, or on the basis of the document.

  11. A “Motion For Sanctions” and State Bar compliant should be filed against any ADA initiating these documents. It is in my opinion patently illegal.

    In addition, the ADA should be prosecuted under 32.48 above (at least) 37.10 Tampering With Governmental Record and 39.02. Abuse Of Official Capacity. (Yeah – Right HAHAHAHAH)

    If that judge had any stones they would toss the ADA in the clink on contempt (at least) for even issuing such a document. (Again – Yeah – Right HAHAHAHAH)

    Adrian Garcia needs to stop sending his deputies out to serve this BS and perhaps it should be brought to his attention that the DA’s office is sending out invalid, if not illegal “subpoenas”

    Perhaps the USDOJ needs to look into the goings on at the Harris County Courthouse. If other ADAs are issuing similar documents, this would constitute an “ ongoing in pattern and practice” of witness intimidation.

    The unfortunate thing is that once Pat Lykos is gone, a “Borg” replacement of the Rosenthal area will be back in office. and practices like this will not only continue, but be sanctioned.

    Go give em’ hell Mark…..(I live in another nearby county)

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