Can an employee of a Texas district attorney's office serve a subpoena in a criminal case?

Plain-English summary

Texas criminal subpoenas can be served two ways under article 24.01(b) of the Code of Criminal Procedure: by a peace officer, or by a person who is at least 18 years old and, at the time the subpoena is issued, is not a participant in the proceeding for which the appearance is sought. The Nueces County district attorney asked the AG a narrow question about that second route: can an attorney or other employee of his office serve a subpoena in a criminal case in which the employee is not involved in any capacity, aside from serving the subpoena, at the time it issues?

The AG approached this as a question of reading the statute's plain text. The statute does not define "participant" or "proceeding," so the opinion gave those words their ordinary meaning. A participant is someone who takes part in an activity, and in the criminal context a participant in a proceeding includes, at a minimum, the people who play an identifiable role at a hearing or trial: the trial attorneys, the parties, witnesses, jury members, the court, and court staff.

The district attorney had framed the question to cover only employees who were not involved in prosecuting or assisting the prosecution in any capacity besides serving process. The AG found nothing in the statute that categorically disqualifies a prosecutor's office employee from serving a subpoena. Quoting Texas Supreme Court precedent, the opinion said a court may not write special exceptions into a statute to make it inapplicable in circumstances the Legislature did not mention. So the AG concluded that, while no court or earlier AG opinion had addressed the point, a court would likely hold that article 24.01(b)(2) allows an attorney or other district-attorney-office employee to serve a criminal subpoena when, at the time of issuance, that person is not involved in prosecuting the case in any capacity.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The district attorney who requested the opinion: The AG told him the statute did not stand in the way. The opinion concluded that a court would likely read article 24.01(b)(2) to allow one of his attorneys or staff to serve a criminal subpoena, so long as that person was not a participant in the prosecution of the case when the subpoena issued.

District attorney offices generally (as the opinion described them): The opinion treated prosecutors' employees as not categorically barred from serving subpoenas under article 24.01(b)(2). The disqualifying fact is being a participant in the specific proceeding at the time of issuance, not employment with the prosecuting office.

Common questions

Who can serve a criminal subpoena in Texas?
Under article 24.01(b), either a peace officer or a person who is at least 18 and, at the time the subpoena issues, is not a participant in the proceeding. The AG read those as the statute's only stated qualifications for a non-officer.

What makes someone a "participant" in the proceeding?
The AG gave the word its ordinary meaning. At a minimum, a participant includes those with an identifiable role at a hearing or trial: trial attorneys, parties, witnesses, jury members, the court, and court staff. The opinion did not try to map the full outer edge of the term.

Does working in the DA's office disqualify someone from serving a subpoena?
No. The AG found nothing in the statute that categorically bars a prosecutor's employee, and noted that courts cannot add exceptions the Legislature did not write. The relevant test is whether that person is a participant in the particular proceeding when the subpoena issues.

Was this a definite ruling?
No. The AG noted that no court or prior AG opinion had decided the question and framed the conclusion as what a court would likely hold. An AG opinion is persuasive authority, not binding law.

Background and statutory framework

Article 24.01(b) of the Code of Criminal Procedure provides for service of a subpoena in a criminal matter by either a peace officer or a person at least 18 years old who, at the time the subpoena is issued, is not a participant in the proceeding for which the appearance is sought (Tex. Code Crim. Proc. art. 24.01(b)(1), (2)). Courts interpreting a statute give effect to the Legislature's intent as expressed in the plain meaning of the text, read in the context of the entire statutory scheme (City of Houston v. Bates, 406 S.W.3d 539, 543-44 (Tex. 2013); Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014)). Undefined words are given their ordinary meaning (In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex. 2014)). In the criminal context, a "proceeding" can mean a hearing or trial, an individual step in a prosecution, or the entire course of an action (Fahrni v. State, 473 S.W.3d 486, 494-95 (Tex. App.-Texarkana 2015, pet. ref'd) (quoting Howland v. State, 990 S.W.2d 274, 277 n.6 (Tex. Crim. App. 1999))), and a participant in a proceeding includes those who play an identifiable role at a hearing or trial (Austin Bulldog v. Leffingwell, 490 S.W.3d 240, 246 (Tex. App.-Austin 2016, no pet.)). A court may not write special exceptions into a statute to make it inapplicable under circumstances the statute does not mention (Pub. Util. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988)).

Citations

Cases:

• City of Houston v. Bates, 406 S.W.3d 539, 543-44 (Tex. 2013)
• Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014)
• In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex. 2014)
• Fahrni v. State, 473 S.W.3d 486, 494-95 (Tex. App.-Texarkana 2015, pet. ref'd)
• Howland v. State, 990 S.W.2d 274, 277 n.6 (Tex. Crim. App. 1999)
• Austin Bulldog v. Leffingwell, 490 S.W.3d 240, 246 (Tex. App.-Austin 2016, no pet.)
• Pub. Util. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988)

Statutes:

• Tex. Code Crim. Proc. art. 24.01(b), (b)(1), (b)(2)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0207
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0207.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 16, 2018

The Honorable Mark A. Gonzalez Opinion No. KP-0207
105th Judicial District Attorney
Nueces County Courthouse Re: Whether an employee of a district
901 Leopard, Room 206 attorney's office is eligible to execute and
Corpus Christi, Texas 78401-3681 serve a subpoena under article 24.01(b)(2) of
the Code of Criminal Procedure if the
employee is not, at the time of issuance,
involved in the proceeding for which the
appearance is sought (RQ-0207-KP)

Dear Mr. Gonzalez:

    Article 24.01(b) of the Code of Criminal Procedure provides for the service of a subpoena in a criminal matter by either a peace officer or a person "at least 18 years old and, at the time the subpoena is issued, not a participant in the proceeding for which the appearance is sought." TEX. CODE CRIM. PROC. art. 24.01(b)(1), (2). You ask whether, under article 24.01(b)(2), an attorney or other employee of a district attorney's office is eligible to serve a subpoena in a criminal case in which the employee is not involved in any capacity at the time of the subpoena's issuance, aside from the service of the subpoena. [1]

    Courts interpreting a statute attempt to give effect to the Legislature's intent as expressed in the plain meaning of the text. City of Houston v. Bates, 406 S.W.3d 539, 543-44 (Tex. 2013). To discern that intent, courts consider the specific statutory language in the context of the entire statutory scheme. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014).

    Article 24.01(b)(1) authorizes a peace officer to serve subpoenas and does not state any additional qualification. TEX. CODE CRIM. PROC. art. 24.01(b)(1). Article 24.01(b)(2) specifies two requirements for a person who is not a peace officer to be eligible to serve a subpoena: the person must be 18 years of age, and at the time the subpoena issues, must not be "a participant in the proceeding for which the appearance is sought." Id. art. 24.01(b)(2). The statute does not define "participant" or "proceeding." Id. Typically, courts give undefined words in a statute their ordinary meaning. In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex. 2014). The ordinary meaning of the term "participant" is one who participates or takes part in a particular activity. See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 903 (11th ed. 2005) ("[o]ne that participates"); AMERICAN HERITAGE COLLEGE DICTIONARY 1014 (4th ed. 2002) ("[o]ne that participates, shares, or takes part in something"); see also BLACK'S LAW DICTIONARY 1294 (10th ed. 2014) (defining "participation" as "[t]he act of taking part in something, such as a ... trial"). In the criminal context, a "proceeding" can have different shades of meaning, such as "a criminal hearing or trial," "any of the individual steps that may be taken during the course of a criminal prosecution," or "the entire course of an action at law in a prosecution." Fahrni v. State, 473 S.W.3d 486, 494-95 (Tex. App.-Texarkana 2015, pet. ref'd) (quoting Howland v. State, 990 S.W.2d 274, 277 n.6 (Tex. Crim. App. 1999)). At a minimum, a "participant in the proceeding" includes those who play an identifiable role at a hearing or trial, such as trial attorneys, parties, witnesses, jury members, the court, and court staff. See Austin Bulldog v. Leffingwell, 490 S.W.3d 240, 246 (Tex. App.-Austin 2016, no pet.) (describing "participants in a trial" as including "the judge, attorneys, parties, witnesses, and jury").

    We need not determine the full range of an employee's activity that might be considered participation in a proceeding because you ask about only those employees of the district attorney's office who are not "involved in prosecuting or assisting in the prosecution [of the case] in any capacity aside from service of process." Request Letter at 1 (emphasis added). The statutes do not suggest that employees of the prosecutor's office are categorically ineligible to serve a subpoena under article 24.01(b)(2). "A court may not write special exceptions into a statute so as to make it inapplicable under certain circumstances not mentioned in the statute." Pub. Util. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988). Thus, article 24.01(b)(2) does not prohibit an employee of the prosecutor's office from serving a subpoena for a criminal proceeding in which the employee is not a participant when the subpoena issues. While no judicial or attorney general opinion has addressed the issue, a court would likely conclude that article 24.01(b)(2) of the Code of Criminal Procedure allows service of a subpoena in a criminal matter by an attorney or other employee of a district attorney's office who, at the time of the subpoena's issuance, is not involved in the prosecution of the case in any capacity.

                                  SUMMARY

                  Article 24.01(b)(2) of the Code of Criminal Procedure allows service of a subpoena in a criminal matter by an attorney or other employee of a district attorney's office who, at the time of the subpoena's issuance, is not involved in the prosecution of the case in any capacity.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Mark A. Gonzalez, Nueces Cty. Dist. Att'y, 105th Jud. Dist., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Jan. 23, 2018), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").