| (a) Issuance of Commission Requiring Deposition. A
request for issuance of a commission requiring deposition must be
directed to the Chief Clerk of Proceedings in the division's central
office. On the written request of any party in compliance with the
requirements set forth below, the division must issue a commission
addressed to the several officers authorized by statute to take depositions
in accordance with the requirements of Government Code §2001.094.
On the written request of any party in compliance with the requirements
set forth below the Chief Clerk of Proceedings shall issue a commission
to require that the witness appear and produce, at the time the deposition
is taken, books, records, papers, or other objects that may be necessary
and proper for the purpose of the proceeding.
(b) Commission Not Required for a Party. The issuance
of a commission requiring deposition is not required if the witness
is a party or is retained by, employed by, or otherwise subject to
the control of a party. Service of the notice of oral deposition upon
the party or the party's representative is sufficient.
(c) Deposition of a Member of an Agency, Board, or
Division. A member of an agency, board, or division shall not be deposed
after a hearing date has been set.
(d) Requests for Commissions Requiring Deposition.
A request for a commission requiring deposition must be in writing
addressed to the Chief Clerk of Proceedings and comply with the following:
(1) The request must include the commission requiring
deposition sought to be issued prepared for the signature of the Chief
Clerk of Proceedings.
(2) The commission requiring deposition must be addressed
to an officer authorized by statute to take a deposition in accordance
with Government Code §2001.094. The request must contain the
name and address of the applicable officer authorized to take the
deposition, the date, time and place where either the witness is to
appear and give testimony or where the written deposition responses
are to be sent, a detailed description of any items the witness will
be required to produce, and a statement showing date of execution
and return of the commission requiring deposition to the Chief Clerk
of Proceedings.
(3) The request must include a good faith itemized
estimate of the amount likely to accrue under §148.20 of this
title (relating to Reimbursement, Travel Expenses, and Fees for Witnesses
and Deponents) and include a deposit of the same amount as required
by Government Code §2001.094(a). The deposit must be made by
certified check, money order, or other negotiable instrument satisfactory
to the division.
(4) The party seeking the commission requiring deposition
shall coordinate with the other party or parties and with the witness
to determine a mutually agreeable location and time for the attendance
of the witness. The request for commission requiring deposition must
state whether such coordination has been made and whether the proposed
location and time is by mutual agreement of the parties and witness.
(5) The party seeking the commission requiring deposition
that includes a requirement for production should coordinate with
the other party or parties, and with the person from whom production
is sought, to determine a mutually agreeable location and time for
the requested production. The request for the commission requiring
deposition must state whether such coordination has been made and
whether the proposed location and time is by mutual agreement with
the parties and the person from whom production is sought.
(e) Application of the APA. Matters related to deposition
conduct, use, opening, and any other matters relating to depositions
not covered by these rules shall be in accordance with the requirements
of the APA.
(f) Failure to Comply with Commission Requiring Deposition.
If a person fails to comply with a commission requiring deposition,
the division acting through the attorney general, or the party requesting
the subpoena or commission, may bring suit to enforce the subpoena
or commission in a district court in Travis County. This remedy is
not exclusive. The division may enforce the subpoena or commission
requiring deposition in any manner permitted by the Act, the APA,
or division rules.
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