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Rule 201. Compelling Appearance (1981)

TEXT

Any person may be compelled to appear and give testimony by deposition in a civil action.

1. SUBPOENA: Upon proof of service of a notice to take a deposition, written or oral, the clerk or any officer authorized to take depositions and any shorthand reporter certified pursuant to Article 2324(b), TEX. REV. CIV. STAT. ANN., 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.

2. PRODUCTION: A witness may be compelled by subpoena duces tecum to produce items or things within his care, custody or control. The subpoena duces tecum shall direct with particularity the witness to produce, at such time and place designated, documents (including writings, papers, books, accounts, drawings, graphs, charts, photographs, recordings and other data compilations from which information can be obtained, translated, if necessary, by the Respondent through appropriate devices into reasonably usable form) and tangible things which constitute or contain evidence or information 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.

3. PARTY: Where the witness is a party to the suit, and after filing of a pleading in the party's behalf by an attorney of record, service of the notice upon such attorney shall suffice and have the same effect as a subpoena served on the party. If the witness is an agent or employee and subject to the control of a party, notice to take the witness' deposition may be served on such party's attorney of record and shall have the same effect as a subpoena served on the witness. A party or a party's agents or employees or persons subject to that party's control, may be compelled to produce, as in Paragraph 2 hereof, if the notice sets forth the items or things to be produced with the same particularity as required for a subpoena duces tecum.

4. ORGANIZATIONS: Where the witness named in the subpoena or notice is a public or private corporation, a partnership, association or governmental entity, the subpoena or notice shall direct the organization named to designate the person or persons to testify in its behalf, and, if it so desires, the matters on which each person will testify, and shall further direct that the person or persons so designated appear before the officer at the time and place stated in the subpoena or notice for the purpose of giving their testimony.

5. TIME AND PLACE: The time and place designated shall be reasonable. The place of taking a deposition shall be in the county of the witness' 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 or the person or persons designated under Paragraph 4 above 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 100 miles from the place of service, or at such other convenient place as the court may direct. The witness shall remain in attendance from day to day until such deposition is begun and completed.

Amended by order of June 10, 1980, eff. Jan. 1, 1981: The rule is completely rewritten.

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).