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RULE §81.7Depositions, Subpoenas, and Witness Expenses

(a) Upon the written request of any party, the executive director may issue a commission for a deposition or a subpoena to require the attendance of witnesses or the production of books, records, papers, or other objects as may be necessary and proper in a contested case hearing held under this chapter.

(b) If the commission or subpoena is for the attendance of a witness at a deposition or at a hearing, the written request shall contain the name, address, and title, if any, of the witness and the date upon which and the location at which the attendance of the witness is sought. If the subpoena is for the production of books, records, writings, or other tangible items, the written request shall contain a description of the item sought; the name, address, and title, if any, of the individual or entity who has custody or control over the items and the date on which and the location at which the items are sought to be produced. Each request for a subpoena, whether for a witness or for production of items, shall contain a statement of the reasons why the subpoena should be issued.

(c) Upon a finding that a party has shown good cause for the issuance of a subpoena, the executive director shall issue the subpoena in the form described in the APA, §2001.089.

(d) The executive director, with the approval of the Enforcement Committee, may issue a commission or subpoena prior to the filing of a formal complaint under §78.8(d) of this title (relating to Rules of Practice), if, in the opinion of the executive director, such a commission or subpoena is necessary to preserve evidence and testimony or to investigate any potential violation or lack of compliance with the law or board rules or orders. The commission or subpoena may be to compel the attendance of any person to appear for the purposes of giving sworn testimony and/or to compel the production of books, records, papers, or other objects.

(e) A witness who is not a party to the proceeding and who is subpoenaed to appear at a deposition or hearing or to produce books, papers, or other objects, shall be entitled to receive reimbursement for expenses incurred in complying with the commission or subpoena, as provided by either the APA, §2001.103, or the State of Texas Travel Allowance Guide for state employees issued by the comptroller of public accounts, whichever is greater.

(f) At the time, a party, other than the board, requests that a commission or subpoena be issued, the party shall submit to the board an amount of money sufficient to cover the amount of anticipated expenses incurred in complying with the subpoena, as determined by the executive director. No subpoena or commission will be issued until such funds are deposited. The board shall pay a witness or deponent who is entitled to reimbursement under this section from the funds deposited by the party or from its own funds if the person is subpoenaed by the board, on presentation of proper vouchers sworn by the witness and approved by the board. All monies not paid out shall be returned to the party who submitted the funds for deposit.

(g) Payment of expenses under this section is governed by the APA, §2001.103.

Source Note: The provisions of this §81.7 adopted to be effective January 29, 2015, 40 TexReg 380; transferred effective November 1, 2018, as published in the Texas Register October 19, 2018, 43 TexReg 6963

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