Wednesday, September 21, 2016

Issuing a Subpoena vs. Serving a Subpoena (Texas Notaries: It's not the same.)



My understanding from my days of hiring process servers to serve subpoenas is that courts liked to control that issue (as well as process) and did so with an order  authorizing various process servers on a court case by court case basis and that the order was kept in the file of the case.  

I just want to let readers know that the P.I. referenced above said subpoenas are not serving process.   Attorney feedback welcome. 

Frequently, notaries in Texas add value to their services by serving process, which is  the act of delivering a document to a person that will compel him or her to interact with the court system or appear for a deposition.

We've all heard of  being "served with divorce papers," or hearing something like "Mary was served with a subpoena, today."  and "John was served with a temporary restraining order."    In other words, someone was given a set of papers.

Purpose of this Article

Today's article is not to examine the meaning of serving process, but rather to make sure that notaries understand that there's a difference between the phrases "issuing subpoenas" and "serving subpoenas."  (If you'd like to learn more about the legal definition of "serving process" or "service of process," you may want to start your quest by doing a search for the word "process" in the Texas Rules of Civil Procedure.)

Yes, Texas notaries can issue subpoenas!

Notaries in Texas are provided the authority to "issue subpoenas" under Section 121.003 of the Texas Civil Practices and Remedies Code.  The authority of issuing subpoenas should be exercised carefully and only with the oversight of a paralegal or attorney.

Here is an example of how this authority is used:  The medical community has often balked at being served with subpoenas issued by a notary public that states a clerk of medical records must appear and give a deposition or that a doctor or other medical treatment provider must produce medical records in a court case.  Because of this,  the Texas Medical Association has stated:

"The Texas Rules of Civil Procedure allow subpoenas ordering persons to appear at depositions to be issued by an attorney authorized to practice in the state of Texas, certified shorthand reporters or "any officer authorized to take depositions" - which includes Notary Publics [sic] (Texas Rules of Civil Procedure, In other words, a subpoena may be valid even if it is issued by someone other than a judge or court clerk. "
Hopefully, it is easier now to see that the acts of "issuing a subpoena" and "serving a subpoena" aren't the same thing.

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Courts decide who can serve subpoenas.

Within the last few years, it has become a requirement of many courts in Texas (probably most of them) that process be served by certified process servers who have been certified by the Texas Supreme Court.  However, the website that explains process server requirements for Texas also states:
"Under Rule 103 of the Texas Rules of Civil Procedure, process may be served by any person "authorized by law or by written order of the court who is not less than eighteen years of age." Thus, a trial court may elect to continue its current practice of authorizing service of process. Check with your local court if you are uncertain."  (Underlining added by author)

Clear as mud?  

If the underlined information above doesn't make sense, you probably need to look into this much deeper before you agree to serve process.

On the other hand, if you are a certified or seasoned process server, you will know what your local courts require and you know how to call and get questions answered if you are unsure.

Don't serve papers if you aren't qualified.

It's my understanding from working in the legal system that there are two ways to be qualified to serve process. One is to take a course approved by the Texas Supreme Court, and the other is to be authorized by a judge's signature in a single court case by what's commonly referred to as a "Rule 103 Order."  (My guess is that is what the underlined sentence above means.  Certain courts may want to hand approve each process server for a court case.)

If neither of those ways to become qualified means anything to you, take a class before serving process.

How to get certified as a process server...

I had served process before the Texas Supreme Court required certification for its courtrooms; a judge signed off for me in each court case.   There are many assignments that are simple and you can call ahead to let the person you are serving know you are on the way.   It's easy and it pays better than mobile notary work, but there is an investment involved of time and money.

I plan to get my certification soon.

In a few weeks, I hope to pursue my certification through  Texas Process Servers' Academy who is trying to get the initial training online approved even as I write this.   I received a letter from the owner last week that he was nearing his goal of having the first online course to educate process servers.  Many sites offer the renewal course online, but  Texas Process Servers' Academy hopes soon to be able to offer a great experience for first time approval at your online convenience.  

As soon as I hear that this the online class is up, I'll let you know!

Have a great week!


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