I have been getting a lot of questions, regarding the New SOAH rules.
Of the 3 major issues that we thought might happen, none of them did. Hearings are still in person, no subpoena is needed for BTO’s or Tech Super, and they are still required to be there if we request. The new rules can be found here.
The major changes that are presented are in the subpoena arena. If there are other major changes, I haven’t noticed them yet.
In the past, in order to subpoena an officer, we would need to create a subpoena and subpoena request and send it to SOAH for their approval and signature. This often created a delay because they will sign them at their own leisure. Or nit-pick the subpoena, reject it, disallowing enough time to generate a new one that was approved.
Now, attorneys can issue their own subpoenas if they are authorized to practice law in Texas. (Sect. 159.103). We may issue up to two subpoenas for witnesses – the peace officer who was primarily responsible for the defendant’s stop or detention, and the peace officer who was primarily responsible for finding probable cause to arrest the defendant. If the same officer did both, you may only subpoena one.
To issue the subpoenas yourself:
1) Use their form. You can even type it out online and print it.
2) Send in a check for $10 plus mileage over 25 miles to SOAH, along with the return of service at least 3 calendar days before the hearing.
3) Serve the subpoena within FIVE calendar days before the hearing.
4) Serve DPS a copy of the subpoena the same date it is issued.
5) Serve DPS a copy of the subpoena return not later than 3 calendar days before the hearing.
If for some reason the hearing is reset, you must notify them of the new hearing date. In the past, local SOAH has provided that this should be done by cert. mail, return receipt.
This one is still a work in progress. We were recently informed by a 3CDLA member that Plano was no longer going to “accept” subpoenas that are not signed by judges. I took this to mean that we could not use the previously negotiated Subpoena Coordinator (If you recall, it took us months to get Plano to agree to do this instead of us hunting down officers.) This is because they have no choice but to “accept” this subpoena. My first response was, “so what,” I’ll just continue to get subpoenas from the judges like we always did.
WRONG: The Dallas SOAH Judge today informed me that she or the other judges will no longer be signing any subpoenas unless they are one of the 3 enumerated by the rules (2+ cops, civilian witnesses, for pro se people). Therefore, doing what we used to do is not going to work.
I have contacted Plano and am told that they will be issuing a new directive on how to handle this. My guess is that they were worried that we were going to start issuing our own subpoenas, dropping them off the night before, and screwing the officers. I let them know that there is already a 5-day time period in the new rules. In fact, I said that a 7 day period was even reasonable for them to request. I will disseminate what ends up happening with this. Of course if Plano does not accept this new form of subpoena through a coordinator, we are going to have to go back to the practice we had 6 months ago or tracking down the officers on duty, off duty, at home, etc. I’m hoping this doesn’t have to go back to that.
So there you go. That’s all you need to know about the new rules (until I hear more about Plano’s subpoena coordinator). Please tip your waitstaff.