Back to Main Page / Back to List of Rules
Rule 195. Subpoena for Witness
Upon the receipt of such commission by any officer to whom it is addressed, residing in this State, if the witness does not voluntarily appear, he shall issue a subpoena, directed to the sheriff or any constable of the county, requiring him to summon the witness to appear and answer interrogatories at a time and place named in the subpoena.
Source: Art. 3747, unchanged.
Oct. 29, 1940, eff. Sept. 1, 1941.
Repealed by order of March 19, 1957, eff. Sept. 1, 1957.
For context only: Art. 3748. May Be Attached. If the witness, after being duly summoned, shall fail to appear, or, having appeared, shall refuse to answer the interrogatories, such officer shall have power to issue an attachment against such witness and to fine and imprison him in like manner as the district and county courts are empowered to do in like cases.
(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commission should be issued by the notary public in accordance with Article 3757 of the Revised Statutes, which was not repealed by the adoption of the rules.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).