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You are looking forward to your planning and preparation period that is about to start, but as soon as the students leave your classroom the phone rings. You answer and are surprised to be talking with an attorney representing the father of Cindy D. Cindy D is a student in your class who has been shuffled between her parents as they go through a divorce. Cindy D’s father wants full custody, and the attorney asks you questions about the child. He says you must come to his office today, or he will come to your campus to interview you.
What is really happening?
There is an unknown person calling you, trying to get information from you as easily as possible without having to go through a deposition or having a court issue a subpoena. You do not have to speak with this person. He may give the impression that you have no choice, but in reality he has no authority to question you and you are under no obligation to speak with him.
Should I doublecheck the identity of the caller and verify that I can speak with the person?
If a person calls you, identifies him/herself as a parent’s attorney or a representative of Child Protective Services, and asks you questions about a student, you should get verification of the caller’s status before answering any questions about the student. Releasing confidential information about a student can violate the law if the information is released to a person who has no legal right to that information.
How do I end a conversation with an attorney or police detective?
If this call is from an attorney or police detective, you should be able to end this conversation easily by saying that you are represented by a TCTA attorney. An attorney or police detective cannot continue to ask any questions once informed that you are represented by an attorney.
How do I end a conversation with another person?
If this conversation is with a person who is not an attorney or a police detective, notification of legal representation may not automatically end the conversation. The person may insist on speaking with you and may give the impression that you have to speak with him/her, but you have no legal obligation to do so. If the person insists that you talk, simply hang up the phone.
Can I be forced to speak to them?
Attorneys can have a subpoena issued to compel people to speak to them. A subpoena is a command to appear at a certain time and place to give testimony on a certain matter. Typically, you receive a subpoena to either appear in court to testify or at a deposition.
Have I been subpoenaed to appear in court or at a deposition?
You will know if you have been subpoenaed to appear in court or to give a deposition. A constable, sheriff or someone over 18 years of age who is not a party to the lawsuit will show up at your place of work or residence and present you with the subpoena. The words SUBPOENA will be written across the top of the first page. There will be no doubt about what has occurred – you are being compelled to appear in a specific time/place for either a deposition or court appearance. When you receive a subpoena, you should write the date and time you are served on the subpoena.
Most people have not had their deposition taken and may not know exactly what it entails. A deposition is a process that occurs before a trial and allows one party, generally through his/her attorney, to ask a series of questions, in writing or in person, to a potential witness. The person’s answers are under oath and can be used in a subsequent court proceeding. The concept behind a deposition is for a party to find out what a potential witness knows before going to trial.
The other way that you can be compelled to testify is if you receive a subpoena to appear in court. It is the same process with the constable or other law enforcement officer showing up at your place of work or residence and presenting you with a subpoena. The words SUBPOENA will be written across the top of the first page. If you receive any type of valid subpoena, you must show up at the requested location and be prepared to testify. Failure to comply with a subpoena could result in a fine or imprisonment.
Should I voluntarily comply or should I request to be subpoenaed?
There are advantages to being subpoenaed to testify rather than voluntarily testifying. Concerns about the release of information made confidential by the Family Educational Rights and Privacy Act can be eased because an exception exists to confidentiality for information provided as a result of a lawfully issued subpoena or court order.
Employers are prohibited from discriminating against employees who comply with valid subpoenas to appear in court. This protection does not extend to voluntarily complying with a request to answer questions or voluntarily appearing in court. This law is found in the Texas Labor Code, Section 52.051, as well as in your district policy, DEC (Legal), in a section entitled “compliance with a subpoena.” That policy, which tracks verbatim the Labor Code, states as follows: “The District may not discharge, discipline, or penalize in any manner an employee because the employee complies with a valid subpoena to appear in a civil, criminal, legislative, or administrative proceeding.” There are monetary fines and attorney’s fees that can be issued against an employer who violates this provision.
Do I need a subpoena for jury duty?
No you do not. If you receive a jury summons, your employer cannot reduce your salary or penalize you in any way for complying with the summons. This law is found in the Texas Education Code, Section 22.006, as well as in your district policy, DEC (Legal). In addition to the prohibition against docking your pay, your district cannot reduce your accumulated leave days for complying with a jury summons. There is not a financial downside, from an employee standpoint, to complying with a jury summons.
Can my leave days be docked for complying with a subpoena?
This is an interesting scenario that TCTA members sometimes face. When you compare Texas Education Code, Section 22.006, and Texas Labor Code, Section 52.051, you will notice a slight difference between the two. Both have the prohibition against penalizing employees for complying with either a jury summons or a subpoena. The Texas Education Code provision (jury) specifically adds the language that an employee’s accrued personal leave cannot be reduced for complying with a jury summons. The Texas Labor Code provision (subpoena) does not have this additional language. The general statutory language has the comment that an employee cannot be “penalized in any manner” for complying with a subpoena. If your district attempts to reduce your accrued personal leave for complying with a subpoena, this language will provide a strong avenue to challenge the action.
Can TCTA represent me at a hearing where I have been subpoenaed to testify?
No. The bar at the front of a courtroom is intended to separate the general public from the judge, jury, parties and counsel. Witnesses can cross this line when they testify in court, but are not entitled to have an attorney present with them.
What should I say at a hearing?
This sounds simple, but you should say the truth. Speaking the truth will shield you from potential problems. You should answer all questions that are asked of you by either side truthfully and to the best of your ability. You will be asked to provide information that is in your personal knowledge. You should not have to speculate about what other people said or did or about their motives.
What if I do not understand a question?
If you do not understand a question, ask that the attorney repeat or rephrase the question. You will not look bad by asking to have a question restated. It is far worse to give an inaccurate answer.
Keeping in mind this practical advice will help you if you are served with a subpoena to appear in court or at a deposition. TCTA will continue to assist teachers to ensure that your legal protections are not violated. If you have any questions about a subpoena, or any other matter, please contact the TCTA Legal Department toll-free at (888) 879-8282.
