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Rule 201. Compelling appearance (1971)

TEXT

Any person may be compelled to appear and depose as in this rule provided. Upon proof of service of a notice to take a deposition, written or oral, any officer authorized to take such deposition as provided in Art. 3746 and Art. 2324a, Vernon’s Annotated Revised Civil Statutes of the State of Texas, shall immediately issue and cause to be served upon the witness a subpoena directing him to appear before said officer at the time and place stated in the notice for the purpose of giving his deposition; provided that where the witness is a party to the suit, with an attorney of record, service of the notice shall suffice and have the same effect as a subpoena served on the party. In a proper case, and where the appropriate designation has been made in the notice as provided in rule 200, a subpoena may be issued by said officer to the person to whom it is directed to produce at such time and place, designated books, papers, documents and tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permit­ted by rule 186a, but in that event the subpoena will be subject to the provisions of rules 177a and 186b. The place of taking such a deposition shall be in the county of the witness's residence, or where he is employed or regularly transacts business in person, or at such other convenient place as may be directed by the court in which the suit is pending, provided, however, the deposition of a party may be taken in the county of suit subject to the provisions of rule 186b. A non­resident or transient person may be required to attend in the county where he is served with a subpoena, or within one hundred miles from the place of service, or at such other convenient place as such court may direct. The witness shall remain in attendance from day to day until such deposition is begun and completed.

Amended by order of July 21, 1970, eff. Jan. 1, 1971: Former Rules 201, 202 and 203 have been combined; references to the commission and provision allowing party to require deposition taken more than 100 miles from court where suit is pending to be on written interrogatories have been eliminated; and provisions have been added: (1) making notice to take deposition of a party suffice as a subpoena where party has attorney of record, and (2) that deposition of a party may be taken in county of suit subject to provisions of Rule 186b.

ADVISORY OPINIONS

(No. 74) Question: Where a commission has been duly issued by the clerk of the court to a notary public for taking of an oral deposi­tion, is the subpoena to obtain the presence of the witness to be issued by the notary public, to whom the commission has been issued, or else to be issued by the clerk of the court who issued the commis­sion (to wit, the clerk of the court in which the suit is pending)?

Answer: We think the commission should be issued by the notary public in accordance with Article 3757 of the Re­vised Statutes, which was not repealed by the adoption of the rules. This article provides in substance that the officer (meaning the officer to whom the com­mission for taking of the oral deposition is addressed, which is defined in Rule 203, and which is old Article 3756, unchanged) "shall have the same power and authority to enforce the attendance of the witness and to compel him to testify, as in cases of written interrogatories.” Under Rule 195 (which is old Article 3747, un­changed) the officer holding a commis­sion for the taking of a deposition on written interrogatories has the authority "to issue a subpoena to the sheriff or any constable of the county requiring him to summon the witness to appear and answer interrogatories at the time and place named in the subpoena." The first part of Rule 201 reading:

"Any person may be compelled to appear and depose in the same manner as witnesses may be com­pelled to appear and testify in court… "

is cumulative of Article 3757 and does not relate particularly to the method of compelling the attendance of the witness, but rather defines the scope of the power of the officer over the witness as being that generally possessed by the court.

The question does not involve contempt proceeding for non-appearance and of course the opinion does not apply to that subject.

5 Tex. B.J. 465 (1942) reprinted in 8 Tex. B.J. 29 (1945).