2006 Code of Virginia § 8.01-407 - How summons for witness issued, and to whom directed; prior permission of court to summon certain o...

8.01-407. How summons for witness issued, and to whom directed; priorpermission of court to summon certain officials and judges; attendance beforecommissioner of other state; attorney-issued summons.

A. A summons may be issued, directed as prescribed in 8.01-292, commandingthe officer to summon any person to attend on the day and at the place thatsuch attendance is desired, to give evidence before a court, grand jury,arbitrators, magistrate, notary, or any commissioner or other personappointed by a court or acting under its process or authority in a judicialor quasi-judicial capacity. The summons may be issued by the clerk of thecourt if the attendance is desired at a court or in a proceeding pending in acourt. The clerk shall not impose any time restrictions limiting the right toproperly request a summons up to and including the date of the proceeding:

If attendance is desired before a commissioner in chancery or othercommissioner of a court, the summons may be issued by the clerk of the courtin which the matter is pending, or by such commissioner in chancery or othercommissioner;

If attendance is desired before a notary or other officer taking adeposition, the summons may be issued by such notary or other officer at theinstance of the attorney desiring the attendance of the person sought;

If attendance is sought before a grand jury, the summons may be issued by theattorney for the Commonwealth, or the clerk of the court, at the instance ofthe attorney for the Commonwealth.

Except as otherwise provided in this subsection, if attendance is desired ina civil proceeding pending in a court or at a deposition in connection withsuch proceeding, including medical malpractice review panels, and a claimbefore the Workers' Compensation Commission, a summons may be issued by anattorney-at-law who is an active member of the Virginia State Bar at the timeof issuance, as an officer of the court. An attorney-issued summons shall beon a form approved by the Supreme Court, signed by the attorney and shallinclude the attorney's address. The summons and any transmittal sheet shallbe deemed to be a pleading to which the provisions of 8.01-271.1 shallapply. A copy of the summons and, if served by a sheriff, all service ofprocess fees, shall be mailed or delivered to the clerk's office of the courtin which the case is pending or the Workers' Compensation Commission, asapplicable, on the day of issuance by the attorney. The law governingsummonses issued by a clerk shall apply mutatis mutandis. When anattorney-at-law transmits one or more attorney-issued subpoenas to a sheriffto be served in his jurisdiction, such subpoenas shall be accompanied by atransmittal sheet. The transmittal sheet, which may be in the form of aletter, shall contain for each subpoena: (i) the person to be served, (ii)the name of the city or county in which the subpoena is to be served, inparentheses, (iii) the style of the case in which the subpoena was issued,(iv) the court in which the case is pending, and (v) the amount of feestendered or paid to each clerk in whose court the case is pending togetherwith a photocopy of the payment instrument or clerk's receipt. If copies ofthe same transmittal sheet are used to send subpoenas to more than onesheriff for service of process, then subpoenas shall be grouped by thejurisdiction in which they are to be served. For each person to be served, anoriginal subpoena and copy thereof shall be included. If the attorney desiresa return copy of the transmittal sheet as proof of receipt, he shall alsoenclose an additional copy of the transmittal sheet together with an envelopeaddressed to the attorney with sufficient first class postage affixed. Uponreceipt of such transmittal, the transmittal sheet shall be date-stamped and,if the extra copy and above-described envelope are provided, the copy shallalso be date-stamped and returned to the attorney-at-law in theabove-described envelope.

However, when such transmittal does not comply with the provisions of thissection, the sheriff may promptly return such transmittal if accompanied by ashort description of such noncompliance. An attorney may not issue a summonsin any of the following civil proceedings: (i) habeas corpus under Article 3( 8.01-654 et seq.) of Chapter 25 of this title, (ii) delinquency or abuseand neglect proceedings under Article 3 ( 16.1-241 et seq.) of Chapter 11 ofTitle 16.1, (iii) issuance of a protective order pursuant to Article 4 (16.1-246 et seq.) or Article 9 ( 16.1-278 et seq.) of Chapter 11 of Title16.1, or Chapter 9.1 ( 19.2-152.8 et seq.) of Title 19.2, (iv) civilforfeiture proceedings, (v) habitual offender proceedings under Article 9 (46.2-351 et seq.) of Chapter 3 of Title 46.2, (vi) administrative licensesuspension pursuant to 46.2-391.2 and (vii) petition for writs of mandamusor prohibition in connection with criminal proceedings. A sheriff shall notbe required to serve an attorney-issued subpoena that is not issued at leastfive business days prior to the date that attendance is desired.

In other cases, if attendance is desired, the summons may be issued by theclerk of the circuit court of the county or city in which the attendance isdesired.

A summons shall express on whose behalf, and in what case or about whatmatter, the witness is to attend. Failure to respond to any such summonsshall be punishable by the court in which the proceeding is pending as forcontempt. When any subpoena is served less than five calendar days beforeappearance is required, the court may, after considering all of thecircumstances, refuse to enforce the subpoena for lack of adequate notice.

B. No subpoena shall, without permission of the court first obtained, issuefor the attendance of the Governor, Lieutenant Governor, or Attorney Generalof this Commonwealth, or a judge of any court thereof; the President or VicePresident of the United States; any member of the President's Cabinet; anyambassador or consul; or any military officer on active duty holding the rankof admiral or general.

C. This section shall be deemed to authorize a summons to compel attendanceof a citizen of the Commonwealth before commissioners or other personsappointed by authority of another state when the summons requires theattendance of such witness at a place not out of his county or city.

(Code 1950, 8-296, 8-297; 1952, c. 122; 1977, c. 617; 1992, c. 506; 2000,c. 813; 2002, c. 463; 2004, c. 335.)