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Rule 203. Request for Issuance of Commission: Requisites (1957)

TEXT

Upon the application of any party to a suit who desires to take the oral deposition of a witness, the clerk of the court in which the cause is pending shall immediately issue a commission to take the deposition fixing the time and place for the taking of the testimony as set out in the application. The place of taking such 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. 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. Such commission shall be styled, addressed, dated and tested as provided for in case of written interrogatories, and shall authorize and require the officer or officers to whom the same is addressed, or either of them, to examine said witness before him on the date named in the notice and commission and to take his answers under oath to such questions as may be propounded to him by the respective parties or their attorneys to the suit or proceeding. Such Commission shall require such witness to remain in attendance from day to day until such deposition is begun and completed.

Amended by order of March 19, 1957, eff. Sept. 1, 1957: First sentence of old Rule 202 added, provisions specifying places for taking of depositions added.

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should be issued by the notary public in accordance with Article 3757 of the Re­vised Statutes, which was not repealed by the adoption of the rules.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).