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Rule 187. Deposition to Perpetuate Testimony (1973)

TEXT

1. Petition. When any person may anticipate the institution of an action in which he may be a party, and may desire to perpetuate his own testimony or that of any other person to be used in such suit, he, his agent or attorney, may file a verified petition in the proper court of any county where venue of the anticipated action may lie. The petition shall be in the name of the petitioner and shall show: (1) that petitioner anticipates the institution of an action in which he may be a party; (2) the subject matter of the antcipated action and his interest therein; (3) the names and residences, if known, or a description of the persons expected to be interested adversely to petitioner; (4) the names and addresses of the persons to be examined, the substance of the testimony which he expects to elicit from each, and petitioner's reasons for desiring to perpetuate such testimony; and (5) a request for an order of the court authorizing such petitioner to take the depo­sitions of the persons to be examined named in the pe­tition, for the purpose of perpetuating their testimony.

2. Notice and Service. The petitioner shall thereafter serve or cause to be served at least fifteen days before the date of hearing, a notice upon the witness, or witnesses, and upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court at a time and place named in such notice for the order requested in the petition, and which notice may be served as provided in Rule 21a. If the verified petition states that the name or the residence of any expected adverse party is unknown to petitioner and his agent or attorney cannot be ascertained after diligent inquiry, the clerk of the court or justice of the peace shall, on petitioner's request, cause the notice to any such party or parties to be published in some newspaper in the county where the petition is filed if there be a newspaper published in such county, but if no newspaper be published in such county then in a newspaper in the nearest county where a newspaper is published, once each week for two consecutive weeks, stating the substance of the petition, the court in which it is filed and the number thereof, the name of petitioner and each of the witnesses and their addresses, the names and addresses of the expected adverse parties, if known, or a description of such parties, and that a hearing will be had on such petition at a designated time and place on or after the 14th day following the first publication of such notice. Provided, however, that in any case where justice or necessity so requires the judge or justice may permit the taking of such depositions upon shorter notice than herein prescribed, or many extend such time in order to permit service on any adverse party.

3. Application to Probate Will. An application or petition, or an anticipated application or petition, for the probate of a will shall be considered as a suit within the meaning and purport of this rule; and, whenever any person in this State shall desire to perpetuate testimony for use in an anticipated application for the probate of a will, the notice, accompanied by a copy of the aforesaid petition may be served by posting as prescribed by Section 33(f)(2) of the Texas Probate Code, such notice to be directed to all parties interested in the estate of the testator and to comply with the requirements of Section 33(c) of said Code insofar as they may be applicable.

4. Order and Manner of Taking, Etc. If satisfied that the perpetuation of testimony may prevent a failure or delay of justice, the court or justice shall make an order authorizing the taking of such depositions and state whether such depositions shall be taken upon oral examination or written questions. The time and place at which such depositions shall be taken may be stated in such order or by means of notice as provided for depositions generally. The deposition rules not inconsistent with this rule shall apply to the taking, signing, returning, objections to, and use of such depositions. Any interested party may, after the filing in the court of any deposition taken under notice by publication under this rule, move to suppress said deposition, in whole or in part, by bill of review, such right to move to suppress to be cumulative of all other rights to attack or oppose said deposition.

Amended by order of Oct. 3, 1972, eff. Feb. 1, 1973: The first sentence of paragraph 4 has been rewritten to make it clear that the taking of a deposition to perpetuate testimony is to be authorized only when the court is satisfied that a failure or delay of justice may be prevented thereby.

ADVISORY OPINIONS

(No. 134) Question: Under Rule 187 providing for the taking of depositions to perpetuate testimony, is the taking of such depositions limited to instances where the persons adversely interested are unknown heirs or non-residents? This question is propounded because the portion of Rule 187 which authorizes the actual taking of the depositions is embodied in the second sentence of the Rule immediately following the first semicolon therein, and a question has been raised as to whether it applies to the first sentence of the rule dealing with cases where the adversely interested parties are residents and their addresses are known.

Answer: It is the opinion of the Sub­committee that this Rule authorizes the taking of depositions to perpetuate testimony in the instances referred to in both the first and second sentences of the Rule. We feel that the obvious purpose and intention of the Rule is to allow the tak­ing of depositions in all such cases. Any other construction would make the first sentence of the Rule entirely meaningless and inoperative.

The notation at the foot of the Rule indicates that this Rule is "Article 3742, unchanged." It was obviously the purpose of the Supreme Court to carry forward Article 3742 as a Rule, and it was well settled that said Article authorized the taking of depositions to perpetuate testimony in either of the instances under con­sideration. When the Rule was drafted from the Statute, the first sentence of the Statute was divided into two sentences, apparently because of the extreme length of the sentence. However, the notation was made at the foot of the Rule that it was taken from Article 3742 unchanged, and we feel that the same construction should be given to the Rule that had been given to the Statute.

7 Tex. B.J. 327 (1944) reprinted in 8 Tex. B.J. 51 (1945).