                                   NO. 07-03-0149-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   JANUARY 22, 2004

                          ______________________________


                         DOLORES GRUNAUER, APPELLANT

                                            V.

                             IRENE DIFILIPPO, APPELLEE


                        _________________________________

        FROM THE COUNTY COURT OF LAW NO. 3 OF LUBBOCK COUNTY;

            NO. 2003-593,853; HONORABLE PAULA LANEHART, JUDGE

                         _______________________________



                               MEMORANDUM OPINION


Before QUINN and REAVIS and CAMPBELL, JJ.


      Following a bench trial, the trial court awarded judgment in favor of Irene Difilippo

against Dolores Grunauer in a forcible entry and detainer proceeding declaring Difilippo to

be entitled to possession of the property in question. With one issue, Grunauer claims the
trial court abused its discretion in granting Difilippo’s motion to quash a witness subpoena.

We will affirm.


       Grunauer and Difilippo are sisters. Their parents, Severiano and Vicenta Martinez,

owned a home in which Grunauer was living in their absence. In January of 2003, Difilippo,

who had been granted power of attorney for both Severiano and Vicenta, filed a sworn

complaint for eviction in the Justice of the Peace Court seeking to evict Grunauer from the

home. The JP court entered a default judgment against Grunauer, who then appealed the

case to County Court. In anticipation of the February 2003 trial setting in that court,

Grunauer served Severiano with a subpoena to compel his testimony at trial.1 In response,

Difilippo filed a motion to quash the subpoena claiming it was ineffective because it listed

the JP cause and court number instead of the county court ones. Difilippo also asserted

in the motion that requiring her 95 year old father, who was in failing physical and mental

health, to attend the proceedings “[was] undue and overly burdensome.” At the hearing on

the motion, Grunauer conceded the subpoena had some “typographical errors” and moved

the trial court for a continuance so she could correct them and secure Severiano’s

presence at trial. The trial court denied the motion for continuance, granted Difilippo’s

motion to quash the subpoena, proceeded to trial, and rendered judgment in favor of

Difilippo.



       1
       Grunauer served her 84 year old mother with a subpoena as well. However,
Grunauer did not object at trial to Difilippo’s motion to quash that subpoena, and she raises
no issue on appeal with respect to the trial court’s granting of the motion.

                                             2
       By her issue, Grunauer asserts that if the trial court granted the motion to quash

because the subpoena listed the wrong court and cause number, then it was without

jurisdiction to do so. We disagree. We will review Grunauer’s claim that the trial court

improperly quashed a subpoena under an abuse of discretion standard. Muennink v. State,

933 S.W.2d 677, 684 (Tex.App.–San Antonio 1996, writ ref’d).2 Initially, we note that within

five days of the JP court’s signing of the eviction default judgment, Grunauer had filed both

her notice of appeal and appeal bond in that court, thus perfecting an appeal to county

court. See Tex. R. Civ. P. 749 & 749c. Accordingly, the County Court obtained appellate

jurisdiction at that time and had the authority to rule upon the motion to quash. See Tex.

Gov’t Code Ann. § 26.042(e) (Vernon Supp. 2004). Next, although the subpoena reflected

the correct date and time for the bench trial, it failed to state the proper cause number and

court in which the suit was then pending as required by the rules of civil procedure. See

Tex. R. Civ. P. 176.1. Thus, the subpoena, while duly issued by Grunauer’s attorney, an

official having jurisdiction to issue it, was legally insufficient in form to compel Severiano’s

appearance. See Tex. R. Civ. P. 176.4(b); cf. Plummer v. Harrison, 540 S.W.2d 835, 836

(Tex.Civ.App.–Texarkana 1976, writ ref’d n.r.e.) (where there was no allegation in plaintiff’s

petition that the subpoena served upon her was not sufficient in form or was not issued by


       2
        We recognize the right to compulsory process in a criminal case is governed by the
Code of Criminal Procedure rather than the Rules of Civil Procedure. However, neither
party has supplied, nor has our independent review uncovered, any civil case declaring the
standard of review for a trial court’s grant of a motion to quash a subpoena. Because
Grunauer suggests abuse of discretion is the appropriate gauge, and because we discern
no reason in law or logic not to utilize it, we will review the trial court’s actions under that
standard.

                                               3
an official having jurisdiction to do so, appellate court must presume subpoena was legally

sufficient). Under these circumstances, we cannot say the trial court rendered an arbitrary

and unreasonable decision or acted without reference to any guiding rules or principles in

granting Difilippo’s motion to quash. Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990).

That conclusion precludes a discussion of Grunauer’s remaining argument that “[t]here is

nothing in the record to indicate that Severiano Martinez was imposed to undue burden or

expense as mentioned in TRCP 176.7." See Tex. R. App. P. 47.1. Grunauer’s sole issue

is overruled.


       Accordingly, the judgment of the trial court is affirmed.



                                          Don H. Reavis
                                            Justice




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