Construction cases often involve entities and/or individuals not directly involved in the litigation at bar. Take, for example, a large apartment complex being built: the owner contracts with the general contractor who has a long list of subcontractors to perform specific tasks on the project. If the owner and the general contractor enter a dispute, it is very likely that one or more of the subcontractors may have information critical to the case’s disposition – despite not being parties to the lawsuit.
Such a non-party witness often holds critical information necessary to establish a finding of a case’s facts. However, it can be difficult to elicit that testimony, because many witnesses shy away from the limelight of sworn testimony. Frankly, it is rare to find people who enjoy sitting in the “hot seat” – especially when they are not parties to a case and therefore are not affected by the case’s outcome. Fortunately, the Texas Rules of Civil Procedure provide a procedure for compelling a non-party witness to testify by using subpoenas and personal service.
The process allows a party to the lawsuit to issue and serve a subpoena on the non-party witness via a constable, sheriff, or a non-party person who is over 18 years of age and subjects the witness to the penalties associated with the enforcement of a subpoena. See generally, Tex. R. Civ. P. 176. The lawyer issuing the subpoena must follow the rules to ensure that if enforcement is necessary, the lawyer has jumped through all the required procedural hoops.
Texas Rule of Civil Procedure 176 outlines how Texas approaches subpoenas, including the proper form, required actions, limitations, who may issue, service, response protection of person from undue burden and expense, and enforcement. See Tex. R. Civ. P. 176.1, et. seq. Subpoenas are very technical in how they may be drafted, executed, served, and enforced so following the Rules is critical. For example, a subpoena must “state the text of Rule 176.8(a)[.]” Id. at 176.1(g). That text is recreated below:
Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.
Id. at 176.8(a).
Properly serving the subpoena is also critical. If a subpoena is not properly served and the return of service properly entered into the record, the non-party witness may have defenses against enforcement penalties. Looking again at our earlier example, if a party to the dispute does not properly serve the non-party witness (like a subcontractor) with a subpoena for a deposition, and the non-party witness does not appear for the deposition (forcing the requesting party to take a certificate of non-appearance), a trial court may not enforce the subpoena’s penalties.
This rationale is because the non-party witness has a colorable argument that they did not have true notice of the deposition. Moreover, the trial court’s enforcement of a subpoena is a strong penalty which could include fines and/or confinement – meaning the court will take the process seriously and will ensure the Rules were followed.
Therefore, it is paramount that the requesting party follows the Texas Rules of Civil Procedure exactly, so in the event the non-party witness does not appear, the requesting party can show the trial court the procedure was followed and ask for enforcement penalties.
J. Russel “Rusty” Umble
Rusty focuses his practice on commercial and construction litigation, insurance defense and personal injury defense. He routinely represents contractors, independent business owners and insurance companies. Rusty’s experience covers a variety of disputes involving construction defects, breach of contract claims, business formation issues, negligence, insurance coverage and personal injury issues.
