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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

RUSSELL THOMPSON AND 

DEMETRIUS MCCHESTER,

Plaintiffs,

v.

TROOPER WILL RICHTER, et al.,

Defendants.

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Civil Action No. 7:22-cv-00014-O

ORDER AND OPINION

Before the Court are Texas Department of Public Safety’s (“DPS”) Motion to Quash (ECF 

No. 40), filed October 23, 2023, and Plaintiffs’ Response (ECF No. 46), filed October 25, 2023. 

For the reasons contained herein, the Motion is hereby GRANTED.

I. Factual Background

Russel Thompson and Demetrius McChester (“Plaintiffs”) filed a section 1983 civil rights 

lawsuit alleging that Texas State Troopers Will Richter and Mark Strange (“Defendants”) violated 

Plaintiffs’ constitutional rights. DPS was originally a party to this suit, but Plaintiffs removed DPS 

as a defendant in their Amended Complaint.1 Plaintiffs served subpoenas duces tecum on DPS,

pursuant to Federal Rule of Civil Procedure 45, in an effort to obtain evidence regarding 

Defendants’ anticipated defense of qualified immunity and demonstrate that Defendants’ conduct 

was obviously wrong. In response, DPS filed the Motion to Quash Plaintiffs’ third-party 

subpoenas, which is now ripe for review.2

1 Am. Compl. ECF No. 12. 

2 Mot. to Quash, ECF No. 40; Pls.’ Resp. ECF No. 46. 

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II. Legal Standard

The target of a Rule 45 subpoena can file a motion to quash or modify the subpoena. Under 

Federal Rule of Civil Procedure 45(d)(3)(A), “[o]n timely motion, the court for the district where 

compliance is required must quash or modify a subpoena that “(i) fails to allow a reasonable time 

to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); 

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; 

or (iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A). On a motion asserting 

undue burden, “[t]he moving party has the burden of proof to demonstrate ‘that compliance with 

the subpoena would be unreasonable and oppressive.’” Wiwa v. Royal Dutch Petroleum Co., 392 

F.3d 812, 818 (5th Cir. 2004) (quoting Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 

1998)) (internal quotation marks omitted). 

III. Analysis

DPS moves to quash Plaintiffs’ third-party subpoenas because sovereign immunity bars the 

requested discovery.3 Plaintiffs argue that (1) DPS waived sovereign immunity by responding to 

previous discovery request; (2) that the broad sovereign immunity protection outlined in Russell 

v. Jones, 49 F.4th 507 (5th Cir. 2022) only applies to third-party agency officials, and (3) the 

holdings of Russell do not extend to violations of Constitutional rights.4

The doctrine of state sovereign immunity “partially embodied in the Eleventh Amendment is 

commonly distilled to the proposition that individuals may not sue a state-either in its own courts, 

courts of other states, or federal courts-without the state’s consent.” See Russell, 49 F.4th at 512. 

“[S]overeign immunity is an immunity from suit (including discovery), not just liability. Where 

3 Mot. to Quash, 2, ECF No. 40.

4 Pls.’ Resp. 2–4, ECF No. 46.

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sovereign immunity applies, it applies totally.” Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 

(1985)).

As an agency of Texas, DPS enjoys immunity from suit, including Plaintiffs’ third-party 

subpoenas. Plaintiffs argue that sovereign immunity, as outline in Russell, only applies to agents 

of the state, not the agencies themselves, and does not apply to violations of Constitutional rights. 

But “the very object and purpose of the eleventh amendment were to prevent the indignity of 

subjecting a state to the coercive process of judicial tribunals at the instance of private parties.” Ex 

parte Ayers, 123 U.S. 443, 505 (1887). In Russell, the Fifth Circuit stated that “compelling a state 

to produce its papers, a subpoena duces tecum subjects a sovereign to the ‘coercive process of 

judicial tribunals at the instance of private parties.’” Russell, 49 F.4th at 515 (quoting Seminole 

Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996). 

Applying these principles, the Court finds that compelling DPS compliance with the thirdparty subpoenas violates sovereign immunity. DPS is clearly an arm of the State of Texas, and the 

third-party subpoenas are the exact type of coercive judicial process that the Supreme Court and 

the Fifth Circuit envision being protected by sovereign immunity. 

Additionally, the Court finds DPS did not waive sovereign immunity when it previously 

produced documents. “A state’s waiver of immunity must be unequivocal.” Neinast v. Texas, 217 

F.3d 275, 279 (5th Cir. 2000). DPS’s previous production of documents does not unequivocally 

demonstrate an intent to waive sovereign immunity. Adams v. Texas Comm'n on Env't Quality, 

No. A-06-CA-281-SS, 2007 U.S. Dist. LEXIS 117432, 2007 WL 9701381, at *1 (W.D. Tex. May 

29, 2007) (no waiver despite a state entity “participating in discovery, depositions, and other 

pretrial matters”); TexasLDPC, Inc. v. Broadcom, Inc., No. MC 4:22-CV-01780, 2023 WL 

3293292, at *2 (S.D. Tex. May 5, 2023) (no waiver despite state entity producing documents and 

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sending representative to give a deposition). Accordingly, DPS can assert immunity over 

Plaintiffs’ third-party subpoenas.

IV. Conclusion 

For the reasons stated above, DPS’s Motion to Quash is GRANTED. In light of this ruling, 

Plaintiffs’ Motion to Amend the Scheduling Order (ECF No. 47), filed November 14, 2023, is 

DENIED.

SO ORDERED on this 17th day of November, 2023.

_____________________________________

Reed O’Connor

UNITED STATES DISTRICT JUDGE

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