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. 1
201.1 – Deposition in Foreign Jurisdictions for Use in Texas Proceedings 201.2 – Depositions in Texas for Use in Proceedings in Foreign Jurisdictions 2
(a) Generally. A party may take a deposition… of 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 other 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 3
Letter Rogatory used for countries not a part of 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 4
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 oral 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. 5
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 6
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. 7
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 on §20.002 of the CPRC 8
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 9
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 10
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 out 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. 11
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 officer, 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 12
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. 13
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 of an out of state witness. Seal the Judge’s certificate and mail to the out of state court. Clerk’s Fees: None. 14
Questions? Questions? 15
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