What should I file to secure the appearance of incarcerated people for trial?
Short Answer
File an application or motion for a writ of habeas corpus ad testificandum for each incarcerated witness. If the witness is incarcerated under Texas authority, you may also request an attachment for a convict witness under Tex. Code Crim. Proc. art. 24.13.[1]
Federal Court
A writ of habeas corpus ad testificandum commands the custodian to produce an incarcerated person to testify at trial. Federal statutory authority includes 28 U.S.C. § 2241(c)(5), which permits habeas relief when “it is necessary to bring [a prisoner] into court to testify or for trial.”[2]
The filing should identify:
- The incarcerated person and identification number;
- The custodian and place of confinement;
- The case caption and number;
- The trial date, time, and courthouse or remote-appearance details;
- Why the person’s testimony is material and unavailable through ordinary process;
- The requested period of production and return; and
- Any security, transportation, or video-conference arrangements.
For example, the Northern District of Texas provides an Application for Writ of Habeas Corpus Ad Testificandum form and instructs counsel to file it using the court’s “Writ of Habeas Corpus ad testificandum” event.[3]
“The undersigned attorney hereby applies to the Court for the issuance of a Writ of Habeas Corpus ad testificandum, because the detainee is a witness not otherwise available by ordinary process of the Court.”[3]
Texas State Court
In Texas criminal proceedings, request an attachment for a convict witness under Tex. Code Crim. Proc. art. 24.13. The presiding judge must find, after a hearing, that the ends of justice require the incarcerated witness’s personal attendance.[1]
If the person is detained but not serving a conviction, the appropriate procedure may instead involve a subpoena, writ, bench warrant, or other court-specific process. The governing court’s local rules and the witness’s custodial status should therefore be confirmed before filing.