E OIKNEY GENERAI.
IF XAS
AUSTIN 1~1. TEXAS
March 29, 1962
Miss Edna Cisneros Opinion No. WW-1291
County Attorney
Willacy County Re: Whether a defendant, after
Raymondville, Texas indictment is returned and
before trial on the merits,
is entitled to take deposi-
tions when the witnesses
are neither non-residents,
non-residents temporarily
within the State, aged or
infirm and related ques-
Dear Miss Cisneros: tions.
You have requested an opinion from this office on cer-
tain questions pertaining to whether the defendant in a criminal
action is entitled to take the depositions of certain witnesses
for the State. In this connection you set forth the pertinent
facts as follows:
"Defendant was arrested, bond set by the magis-
trate, and defendant released on bail. No efforts
were made to have an examination before the magis-
trate; the grand jury convened thereafter and re-
turned a true bill of indictment on the defendant,
aslh Qie case 'rrd-s %eVn se% S-or +uFiaL "VJ +&"rrt: "3ssczli&
Court. Defendant filed a notice of intention to
take the oral depositions of certain state's wit-
nesses, in this case? the main state witnesses, all
of whom reside in this county and none of whom are
aged or infirm. No affidavit stating facts were
necessary to constitute good reason to take such
deposition has been filed."
Pursuant to this fact situation you have posed two
questions--the first of which is set forth as follows:
"Is a defendant, after indictment is returned,
and before trial on the merits entitled to take
depositions, oral or with written interrogatories,
when the witnesses are neither non-residents, non-
residents temporarily within the state, aged, or in-
firm?
‘.
MLss Edna Cisneros, page 2 (W-1291)
Article 734, Vernon’s Code of Criminal Procedure, pro-
vides that:
When an examination takes place in a criminal
action before a magistrate, the defendant may have
the deposition of any witness taken by any officer
or officers named in this chapter. . . .I1
Article 735, Vernon’s Code of Criminal Procedure, pro-
vides that:
“Depositions of witnesses may also, at the re-
quest of the defendant be taken when the witness
resides out of the State, or when the witness is
aged and infirm.”
Article 738, Vernon’s Code of Criminal Procedure, pro-
vides that:
“The deposition of a non-resident witness who
may be temporarily within the State, may be taken
under the same rules which apply to the taking of
depositions of other witnesses in the State.”
Article 741, Vernon’s Code of Criminal Procedure, pro-
vides that :
When the defendant desires to take the depo-
sition of a witness at any other time than before
the examining court, he shall by himself or counsel
file with the clerk of the court in which the case
is pending an affidavit stating the facts necessary
to constitute a good reason for taking the same;
and also state in his affidavit that he has no other
witness whose attendance on the trial can be procured
by whom he can prove the facts he desires to estab-
lish by the deposition.‘*
A study of the foregoing statutes reveals the instances
in which the defendant in a criminal action may obtain the de osi-
tions of witnesses. Pursuant to the provisions of Article 732:
the defendant may obtain the deposition of any witness he so d&
sires before the examining court. However , should the defendant
desire to obtain the deposition of a witness at any time other
than before the examining court, the provisions of Article 741
must be complied with. In this connection) Article 741 provides
that for the defendant to take the deposition of a witness at a
time other than before the examining court it is necessary that
the defendant or his counsel file an affidavit stating the neces-
sary facts to constitute a good reason for taking such deposition.
In turn, Article 735 and Article 738 set forth grounds constitut-
ing the reasons for allowing depositions pursuant to Article 741.
. -
Miss Edha Cisneros, page 3 (WW-1291)
Insofar as the type of deposition which can be taken
of a witness, either oral or by written interrogatories, we are
of the opinion that by virtue of the provisions of Article 742,
Vernon’s Code of Criminal Procedure, the depositions taken pur-
suant to Article 741 may only be taken by written interrogator-
ies. Article 742 is set forth as follows:
. .
“In ca e arismrr under the meced’ne: a title,
written int&;oaatories shall be filed :ith {he
clerk of the court, and a copy of the same served
on the proper attorney for the State the length of
time required for; service of interrogatories in
civil actions.” ~(Emphasis added)
However as to the depositions taken pursuant to Article 734,
during the course of the examining trial, there is apparently no
objection to the deposition being taken orally rather than by
written interrogatories.
In connection with the same fact situation set forth
heretofore, you have posed the further question of:
“IS such a defendant entitled to a commission
to take-depositions without complying with Article
741 CCP?”
In the case of Barton v. Statk 215 S.W. 968 (Tex.Crim.
1919), the court in commenting upon the iffidavit required under
Article 824, the present Article 741, stated that:
“The law required this affidavit to be made
as a predicate for the issuance b; “,“; ;serk of
notice to the adverse parties an h suance of
commissiou.l’ (Emphasis added)
In view of the holding in Barton v. State we are of the
opinion that your second question, under the facts posed, should
be answered in the negative.
Under the facts stated, the defendant in a
criminal action would not be entitled to take
depositions, either oral or by written interro-
gatories when the witnesses are neither aged,
infirm or non-residents of the State.
- .
Miss Edna Cisneros, page 4 (Ww-1291)
Under the facts stated, the defendant in a
criminal action would not be entitled to a com-
mission to take depositions without first comply-
ing with the provisions of Article 741, Vernon's
Code of Criminal Procedure.
Sincerely yours,
WILL WILSON
Attorney General of Texas
PB:jkr:wb Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Norman Suarez
Harry Rewell
Grady Chandler
RRVIEWEDFOR THE ATTORNEYGENERAL
BY: Houghton Brownlee, Jr.