What legal recourse is there for failure to comply with subpoena duces tecum issued by an attorney and not signed by a judge .

Asked over 1 year ago - Lufkin, TX

I was ordered to be legal Guardian of my grandmother and her estate was handled by a trust . The ind . executor of her will subpoena'd me requesting documents about items that were handled prior to her death by the trust and bank accounts which had beneficiaries & have been closed . No suit had been filed against the trustee or me . I feel that I should not have to produce any documents that could be used against me . I feel the ind executor has no legal authority since he was not party to the guardianship nor the trust which was ordered by the state in a different county . I also feel that its a burden upon me to travel the 147 miles to the attorney's office for questioning . Please advise me on my rights as a beneficiary and as a non participant to a lawsuit .

Attorney answers (3)

  1. Brian W. Erikson

    Pro

    Contributor Level 18

    4

    Lawyers agree

    Answered . You really need to retain an attorney in your area to review the pertinent documents and to provide savvy advice. Subpoenas are generally not signed by a judge. If you fail to appear or otherwise address a proper subpoena, the issuing attorney could seek sanctions under Texas Rule of Civil Procedure 215 to compel you to appear and to cooperate with discovery. You can review the provisions of Rule 215 at the following web links:

    Texas Rules of Civil Procedure:
    http://www.stcl.edu/library/TexasRulesProject/I...

    -Or-

    http://www.supreme.courts.state.tx.us/rules/trc...

    Two other Rules of Civil Procedure are pertinent. Rule 176 allows for subpoenas to compel a witness to appear up to 150 miles from where a person resides or is served. Rule 205 sets out the provisions for discovery from a non-party.

    But, bottom line, I highly recommend that you retain an attorney to evaluate your situation and to review your paperwork to provide intelligent advice.

    Good luck.

  2. William J. Dyer

    Contributor Level 15

    3

    Lawyers agree

    Answered . Mr. Erikson is exactly right. Not only do subpoenas not need to be signed by a judge, in my 33 years of practicing law in Texas, I've NEVER seen one signed by a judge.

    I don't mean to be disrespectful, but your feelings as to what is burdensome are not what's at issue. In order for the rights guaranteed to everyone to be meaningful, what one individual thinks or feels he ought to be able to do sometimes just give way to obligations we all share as members of an ordered society under the Rule of Law. Someday if you ARE sued, or if you need to sue someone, it may be YOU who is seeking justice, and as part of that you can use the rules and the mechanisms of the civil justice system to gather the evidence you need and to probe the other side's evidence and positions. Sometimes that means that non-parties -- innocent bystanders or people only marginally related to the litigants -- have to do things they don't much feel like doing.

    If you really want to resist or challenge this subpoena, you should definitely find a lawyer to represent you in that. Especially if you're worried about producing documents that could be "used against [you]," you absolutely positively need legal advice and probably active legal representation. Even if you DO have a constitutional privilege against self-incrimination, unless you know what to do to assert and protect that right, you may accidentally lose it forever through an unintended waiver or procedural mistake.

    As for what legal recourse there may be against you if you ignore the subpoena or fail to bring the documents it specifies: You could be held in contempt of court. In extreme cases, the judge could issue a writ directing the county sheriff or other law enforcement officials to arrest you and bring you to his courtroom to explain yourself. You could be fined. You could even be put in jail until you agree to comply. These things don't happen very often because not many people are foolish enough to push it that far. But you should be under no illusions that you can just follow your feelings instead of the law.

  3. Don Karotkin

    Contributor Level 16

    2

    Lawyers agree

    Answered . I agree with the other lawyers who have responded.

    I'm sorry to have to tell you that no responsible lawyer is going to be willing to give you formal legal advice on your legal rights in this matter on this or any other website. You clearly need professional legal services, which will involve consulting a lawyer, having him or her review all of the relevant documents, answering the lawyer's questions, letting the lawyer do some investigation, and perhaps more.

    Given the limitations of this forum, about all I can reliably and properly suggest to you is that you not ignore the subpoena. That would be the surest way for you to get in trouble and have to pay a lawyer a lot of money to try to get you out of it.

    I suggest that you consult a Lufkin lawyer who is certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. There are currently at least two, and perhaps three, such lawyers. A link to the Board's website apppears below.

    Good luck.

    www.tbls.org

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