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Rule 176. Witnesses Subpoenaed (1957)

TEXT

The Clerk of the district or county court, or justice of the peace, as the case may be, at the request of any party to a suit pending in his court, or of any agent or attorney, shall issue a subpoena for any witness or witnesses, male or female, who may be represented to reside within one hundred miles of the courthouse of the county in which the suit is pending or who may be found within such distance at the time of trial; provided that any clerk, justice of the peace or other officer issuing a subpoena pursuant to the provisions of this Rule, or of any other Rule or statute, shall issue a separate subpoena, together with a copy thereof, for each witness subpoenaed.

Amended by order of March 19, 1957, eff. Sept. 1, 1957: Witnesses residing within one hundred miles of courthouse n1ade subject to sub­poena; officer required to issue separate sub­poena for each witness.

ADVISORY OPINIONS

(No. 129) Question: Under Rules 186 to 215 in regard to the taking of depositions, can a married woman be compelled to appear and testify by deposition? Can a married woman be required to attend as a witness and testify at the trial of a cause?

Answer: In our opinion both of the questions should be answered in the af­firmative.

Rule 186 in regard to depositions of witnesses shows by its terms that it contemplates that the testimony may be taken by deposition "of any witness, male or female." Rule 176 expressly provides for the subpoenaing of "any witness or witnesses, male or female" who reside in the county to enforce their attendance in person at the trial. Both of these rules were taken without change from the Acts of the 46th Legislature (1939) page 323, and the purpose of said legislative enact­ment, as shown by the caption and the emergency clause, was to authorize the compulsory attendance of females to give testimony both in person and by deposi­tion. The emergency clause of the Act states that "the fact that females may not now be compelled to appear as witnesses, even though duly summoned, creates an emergency ... "

Under said legislative act of 1939, and also under the rules which carried forward said enactment, it is our opinion that any female, whether married or un­married, can be compelled to attend court and testify in person or can be compelled to testify by deposition in the same manner and under the same circumstances that a male witness can be com­pelled to testify in person or by deposi­tion.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).