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Rule 186. Depositions of Witnesses (1957)

TEXT

Depositions of witnesses may be taken when the party desires to perpetuate the testimony of a witness, and, in all civil suits heretofore or hereafter brought in this State, whether the witness resides in the county where the suit is brought or out of it; provided, the failure to obtain the deposition of any witness, male or female, residing within 100 miles of the courthouse of the county in which the suit is pending shall not be regarded as want of diligence where diligence has been used to secure the personal attendance of such witness by the service of subpoena or attachment, under the rules of law, unless by reason of age, infirmity or sickness, or official duty, the witness will be unable to attend the court, or unless such witness is about to leave, or has left the State or county in which the suit is pending and will not probably be present at the trial.

Source: Acts 1939, 46th Leg., p. 323, Sec. 7, amending R.C.S. Art. 3738, unchanged.

Amended by order of March 19, 1957, eff. Sept. 1, 1957: Language "residing in the county in which the suit is pending" has been changed to "residing within 100 miles of the courthouse of the county in which the suit is pending" to conform to the change in Rule 176.

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).