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RULE §1.33Issuance of Subpoena or Commission to Take Deposition

(a) On proper request by a party, the department will issue subpoenas and commissions to take depositions in accordance with the APA, unless it appears that the subpoena or commission is sought for the purpose of harassment or that the subpoena or commission would unduly inconvenience the person to whom it is addressed.

(b) The party requesting the issuance of a subpoena or commission must file the request with the executive director, and serve a copy of the request on the judge and each party or the party's representative. The request must identify any documents sought with as much detail as possible and must include a statement of the documents' relevance to the issues in the case. The requestor must submit a proposed subpoena or commission that satisfies the requirements of §1.34 of this subchapter (relating to Form of Subpoena or Commission to Take Deposition).

(c) Before seeking issuance of a subpoena or commission, the requestor must attempt to secure the voluntary appearance of the witness or production of materials. If this is not possible, the requestor must indicate in the request the circumstances that prevent the voluntary appearance or production.

(d) Except when the department as a party requests the subpoena, the requestor must submit a deposit that will reasonably ensure payment of the witness' or deponent's expenses as required by the APA. Only a non-party witness or deponent is entitled to receive reimbursement of expenses as provided by §1.35 of this subchapter (relating to Witness Fees). The amount of the required deposit is based on an estimate of the mileage to be traveled to and from the hearing or deposition, if over 25 miles, and days expected to be spent in the hearing or deposition. The requestor shall make the deposit in the appropriate amount by certified check payable to Texas Department of Transportation and filed with the request.

(e) On receipt of the deposit, the department will issue the subpoena or commission. If the requestor and witness sign an Agreement to Waive Fee, the department may issue the subpoena or commission without a witness fee deposit.

(f) A party who is granted a subpoena is responsible for having the subpoena served in accordance with Rule 176.5, Texas Rules of Civil Procedure.

(g) A properly issued subpoena remains in effect until the judge releases the witness or grants a motion to quash or motion for protective order.

Source Note: The provisions of this §1.33 adopted to be effective November 18, 2010, 35 TexReg 10053

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