SECTION 1.34. Written Depositions

(a) Any party may take the testimony of any person, including a party, by deposition upon written questions.

(b) A party proposing to take a deposition upon written questions shall serve them upon every other party or his or her attorney of record with 10 days' notice in writing. The notice shall state the name and residence of the witness or the place where he or she is to be found, the hearing in which the deposition is to be used, the name or descriptive title and address of the officer before whom the deposition is to be taken, and if a subpoena duces tecum is desired, a designation of such books, papers, documents, and tangible things to be produced by the witness as may be necessary and proper for the purposes of the proceedings. Whenever the adverse party is a corporation or joint stock association, service may be made upon the president, secretary, or treasurer of such corporation or association, or upon the local agent representing such corporation or association in the county in which the hearing is pending, or by leaving a copy of the notice and attached questions at the principal office of such corporation or association during office hours. A party may, in his or her notice, name as the witness a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons to testify on its behalf, and may set forth, for each person designated, the matters on which he or she will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation known. The person so designated shall testify as to matters known or reasonably available to the organization. This subsection does not preclude taking a deposition by any other procedure authorized in these sections.

(c) Whenever one party serves notice of the deposition of a witness on written questions, any party may serve cross-questions upon all other parties within 10 days after such notice and direct questions are served. Within five days after being served with cross-questions, the party proposing to take the deposition may serve redirect questions, and within three days after being served with redirect questions, a party may serve recross-questions upon the party proposing to take the deposition. Copies of the cross-questions, redirect questions, and recross-questions shall accompany the direct questions and shall be answered and returned therewith.

(d) Upon the appearance of the witness, any officer authorized to take depositions shall proceed to take his or her answers to the questions and cross-questions, if any, reduce to writing, and shall cause the same to be signed and sworn to by the witness. The officer shall certify that the answers were signed and sworn to by the witness before him or her, and shall seal them up in an envelope, together with the questions and cross-questions, if any, write his or her name across the seal, and endorse on the envelope the names of the parties to the hearing and of the witnesses, and shall direct the package to the chief clerk or hearings clerk, depending on whether the action is pending before the board, commissioner, or fire marshal. If the depositions be sent by mail, the officer taking the same shall certify on the envelope enclosing the depositions that he or she in person deposited same in the mail for transmission, stating the date when and the post office in which the same are so deposited.

(e) Every person so deposing shall be first cautioned and sworn to testify the truth, the whole truth, and nothing but the truth.

(f) The officer taking such written deposition shall not sustain objections to any of the testimony taken, nor exclude them.

(g) Regardless of whether cross-questions have been propounded, either party has the right to use the depositions on the hearing.

(h) When a deposition shall have been filed with the board, commissioner, or fire marshal at least one entire day before the day on which the case is called for hearing, no objection to the form thereof, or to the manner of taking the same, shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the hearing commences.

Source Note: The provisions of this §1.34 adopted to be effective January 1, 1976; amended to be effective July 13, 1984, 9 TexReg 3651; amended to be effective September 27, 1984, 9 TexReg 4874.