1 201.1 Deposition in Foreign Jurisdictions for Use in Texas - - PDF document

1 Sha Sharena Gillila Gilliland nd Parker County District Clerk

 A document issued by one court to a foreign

court, requesting that the foreign court (1) take evidence from a specific person within the foreign jurisdiction or serve process on a person within the foreign jurisdiction and (2) return the testimony or proof of service for use in a pending case. See also Letters of

• Request. Black’s Law Dictionary.

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 201.1 – Deposition in Foreign Jurisdictions

for Use in Texas Proceedings

 201.2 – Depositions in Texas for Use in

Proceedings in Foreign Jurisdictions

3 (a) Generally. A party may take a deposition…

• f any person or entity located in another

state or foreign jurisdiction…

 (1) Notice  (2) Letter rogatory, letter of request, or other

such device

 (3) Agreement of the parties; or  (4) Court Order  Rule 199.2 outlines the requirements for a

Deposition Notice

 Deposition can take place in another state

• ther than Texas

 Clerk’s Duty: File notice or subpoena. File

• Return. Issue subpoena, if requested.

 Clerk’s Fees: $8, if issuing subpoena, etc.

Gov’t Code §51.318

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 Letter Rogatory used for countries not a part

• f the Hague Convention

 Party to file motion requesting a Letter

Rogatory in the Texas Case

 “Court” to issue Letter Rogatory  See United States Secretary of State Website

for processes and fees and authorized authorities in other countries

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 Letter Rogatory must:

• Be addressed to appropriate authority
• Request foreign authority to summon the witness

before the authority at a certain place and time on

• ral or written questions
• Request and authorize the foreign authority to

cause the witness’s testimony to be reduced to writing and returned with any items marked as exhibits to the party requesting the Letter Rogatory

 Clerk’s Duty: File in Motion/Order. Issue

Letter Rogatory

 Clerk’s Fees: $8. Gov’t Code §51.318  Practice Hint: Check the US SOS website. Ask

the attorney for assistance in locating the proper foreign authority and proper deliver of

• documents. The party may have additional

fees owed to the foreign authority.

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 Letter of Request used for countries that are a

part of the Hague Convention

 Party to file motion requesting a Letter of

Request in the Texas Case

 “Court” or “Clerk” to issue Letter of Request or

“other such device” per treaty/convention

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 Letter of Request must:

• Be in the form prescribed by the treaty or

convention under which it is issued, as presented by the movant to the court or clerk; and

• Must state the time, place, and manner of the

examination of the witness

 Clerk’s Duty: File in Motion/Order. Issue

Letter of Request

 Clerk’s Fees: $8. Gov’t Code §51.318  Practice Hint: See 28 USC chapter 117. Ask

the attorney for specific requirements of the foreign jurisdiction.

 Attorneys might use the term Letter Rogatory

and Letter of Request interchangeably.

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 If a foreign jurisdiction issues a mandate,

writ, or commission requiring a witness to give testimony, he can be compelled to appear and testify “in the same manner and by the same process used for taking testimony in a proceeding pending in this State.”

 Comment 3 to the Rule: Rule 201.2 is based

• n §20.002 of the CPRC

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 CPRC §20.002 is the exact same language as

Rule 201.2

 Clerk’s Duty: If the Foreign Jurisdiction order

is presented for filing, file it as a new case. OCA category – All Other Civil. May have to issue citations, etc.

 Clerk’s Fees: Full Fees

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 CCP art. 24.28 – Uniform Act to Secure

Attendance of Witnesses from Without State

 CCP art. 24.29 – Uniform Act to Secure

Rendition of Prisoners in Criminal Proceedings

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 Judge in another state certifies under seal to

the Texas Judge that the witness’s testimony is necessary.

 Texas Judge “shall fix a time and place for a

hearing, and shall make an order directing the witness to appear at a time and place certain for a hearing.” Art. 24.28 §3(a)

 At the hearing, if the Texas Judge determines

the witness is material and necessary to the

• ut of state proceeding, “he shall issue a

summons, with a copy of the certificate (from the out of state judge) attached, direct the witness to attend and testify in the” out of state court as set out in the summons.

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 Side note – the witness is given protection

from arrest and service of civil and criminal process while traveling in Texas, the destination state, and any states he passes

• through. Art. 24.28 §5

 If the certificate (from the out of state judge)

recommends the witness be taken into custody and delivered to an out of state

• fficer, then in lieu of a hearing, the Texas

Judge can “direct that such witness be forthwith brought before him” for the hearing

 In lieu of a summons/subpoena, Texas Judge

can order the witness taken into custody and delivered to the out of state officer

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 Clerk’s Duty: The statute is silent. HOWEVE

HOWEVER, you will probably be asked to open a case (All Other Civil or Civil Cases Related to Criminal Matters) so that the out of state certificate, Texas Judge’s Order, Summons/Subpoena,

• etc. can be filed and stored somewhere.

Clerk may have to issue citation, summons, subpoena, or capias.

 Clerk’s Fees: None.

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 Texas Judge to issue a certificate under seal

to the out of state Court stating why the witness’s testimony is necessary.

 The certificate can include a recommendation

to take the witness into custody and be delivered to a Texas officer.

 Clerk’s Duty: File into your criminal case the

prosecutor’s motion to compel the testimony

• f an out of state witness. Seal the Judge’s

certificate and mail to the out of state court.

 Clerk’s Fees: None.

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Questions? Questions?