February 15, 1974
The Honorable Wilson E. Speir Opinion No. H- 231
Director
Texas Department of Public Safety Re: Whether deposition in
Box 4087 court proceeding is subject
Austin, Texas 78773 to limitation of Open Records
Act.
Dear Colonel Speir:
The head of the Personnel Department of the Department of Public
Safety has been nerved by the defendant in a civil suit with a subpoena to
give a deposition on written questions concerning the employment records
of an individual who is plaintiff in the suit. The Department of Public Safety
is not a party to the wit.
Your letter requesting our advice an to whether the entire personnel
record of your employee should be produced in answer to the questions cites
5 3(a)(2) of Article 6252-17a, Vernon’s Texas Civil Statutes, the Open Records
Law. That subsection excepts from mandatory disclosure under the Act certain
information in personnel files.
The request for the information however, was not made under the Open
Records Act. Rather, it was made pursuant to the Texas Rules of Civil Proce-
dure having to do with depositions (Ruler 189 to 198). Rule 177a. authorizing
a subpoena duces tecum, authorizes the court in which the action is pending
to quash or modify the subpoena if it is unreasonable or oppressive.
Rule 186b authorizes the same court to enter a protective order limiting
the scope of examination on a deposition on motion of a party or the deponent.
Thus, if your department or the subject employee feels that the deposition and
subpoena are reaching matters which are confidential and should not be revealed
under compulsion, the Rules furnish the remedy and the Open Records Act does
p. 1078
The Honorable Wilson E. Speir, page 2 (H-231)
not authorire thir office to issue any sort of directive that you should or
should not obey the subpoena.
We therefore advise you that, in determining howand to what extent
a subpoena issued in a civil care should be obeyed, resort should be had
to the protective devices provided by the Rules of Civil Procedure. The
Open Records Act, Article 6252-17a, V. T. C. S. , does not apply to the situation.
SUMMARY
The Open Records Act and its exceptions have no
bearing upon the scope of the testimony of a witness taken in
a civil proceeding pursuant to a notice and subpoena issued
under the Rules of Civil Procedure.
Your8 very truly,
Attorney General of Texas
DAVID M. KENDALL. Chairman
Opinion Committee
p. 1079
Untitled Texas Attorney General Opinion
Combined Opinion