In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00018-CV
___________________________
IN RE C.A., INDIVIDUALLY AND AS NEXT FRIEND OF M.D.A., A MINOR
CHILD, AND AS NEXT FRIEND OF D.T.A., AN INCAPACITATED ADULT;
AND M.A., INDIVIDUALLY, Relators
Original Proceeding
67th District Court of Tarrant County, Texas
Trial Court No. 067-309719-19
Before Birdwell, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
In this mandamus proceeding, Relators C.A., individually and as next friend of
M.D.A., a minor child, and as next friend of D.T.A., an incapacitated adult, and M.A.,
individually (collectively “C.A.”) ask us to direct the trial court to quash the deposition
of D.T.A. on the grounds that D.T.A. is not competent to testify. Because we find
the trial court abused its discretion by compelling the deposition of D.T.A. without
first conducting an examination sufficient to make an independent ruling on his
competency and because C.A. lacks an adequate remedy by appeal, we conditionally
grant mandamus relief and order the trial court to quash the deposition until the trial
court conducts a competency examination of D.T.A.
I. BACKGROUND
D.T.A. was injured when the truck that he purchased from Davis Toyota was
involved in a wreck. D.T.A. was sitting in the front passenger seat of the truck when
the accident occurred. As a result of the wreck, D.T.A. was rendered mentally
incapacitated. C.A. filed a lawsuit against real parties in interest—Don Davis Auto
Group, Inc. d/b/a and f/k/a Don Davis Toyota and Don Davis, Inc. d/b/a and
f/k/a Don Davis Toyota (collectively “Davis”)—alleging that Davis made intentional
misrepresentations about the safety of the vehicle.
On October 30, 2020, Davis served notice for the deposition of D.T.A. C.A.
moved to quash the deposition claiming that D.T.A. is a mentally incapacitated adult
and thus not competent to testify or give his deposition. Specifically, C.A. claimed
2
that D.T.A. cannot recount historic life events and suffers from cognitive deficits such
as short-term memory loss, long-term memory loss, amnesia, and an inability to
distinguish reality from delusion. C.A. also stated that D.T.A. is incapable of
understanding his moral responsibility to tell the truth and is unable to understand
what it means to take an oath at a deposition or trial. Davis filed a motion to compel
in response.
On January 5, 2021, the trial court conducted a hearing on C.A.’s motion to
quash the deposition and Davis’s motion to compel. In the alternative to quashing
the deposition, C.A. requested that before the court compelled D.T.A. to give his
deposition, the court conduct an examination under Texas Rule of Evidence 601 to
determine D.T.A.’s competency as a witness.
To prove that D.T.A. is mentally incapacitated, C.A. submitted the affidavit of
D.T.A.’s treating physician, Dr. Munawar Haider. Dr. Haider swore that D.T.A. is
not capable of taking an oath because he will not be able to understand its meaning.
Moreover, Dr. Haider did not believe that D.T.A. can give true and completely
accurate statements. Davis did not dispute Dr. Haider’s opinion of D.T.A.’s medical
condition, but instead argued that the issue of his competency was not relevant until
the time of trial because Texas Rule of Evidence 601 (1) does not require the court to
conduct a competency examination prior to the time that a witness gives his
deposition and (2) applies only to trial witnesses, not to deposition witnesses.
3
On January 15, 2021, without examining D.T.A. to determine whether he was
competent to give deposition testimony, the trial court entered an order denying
C.A.’s motion to quash D.T.A’s deposition and granting Davis’s motion to compel.
On January 19, 2021, C.A. filed their petition for writ of mandamus asking this
court to direct the trial court to quash the deposition of D.T.A. In the alternative,
C.A. requested this court order the deposition of Dr. Haider on the subject of
D.T.A.’s competency or allow an independent medical examination of D.T.A. to assist
the trial court in determining whether D.T.A. is competent to testify at a deposition.
Davis responded claiming that the Rules of Evidence do not require a trial court to
rule on a witness’s competency before the witness gives testimony at a deposition.
II. DISCUSSION
A. Mandamus Standard
This court may grant mandamus relief from a discovery order only when
(1) the trial court’s decision is so arbitrary and unreasonable that it is “a clear and
prejudicial error of law” and (2) the relator has no adequate remedy by appeal. In re
State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig. proceeding). In determining
whether the trial court abused its discretion, we may not substitute our judgment for
the trial court’s determination of factual or other discretionary matters. Id. But
because a trial court has no discretion in determining what the law is or applying it, we
review its decisions on questions of law and application-of-law-to-fact questions much
less deferentially. Id. A trial court’s clear failure to correctly analyze or apply the law
4
is an abuse of discretion. In re M-I L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (orig.
proceeding).
When considering a claimed abuse of discretion, we are mindful that
discovery’s purpose is to seek the truth so that disputes may be decided by what the
facts reveal, not by what they conceal. In re Colonial Pipeline Co., 968 S.W.2d 938, 941
(Tex. 1998) (orig. proceeding). We also keep in mind that simply because requested
information is discoverable “does not mean that discovery must be had.” State Farm
Lloyds, 520 S.W.3d at 605. And all discovery is “subject to the proportionality overlay
embedded in our discovery rules and inherent” in the reasonableness standard. Id. at
599. In determining whether a trial court abused its discretion, we are generally
bound by the record before the trial court at the time it made its decision. M-I L.L.C.,
505 S.W.3d at 574.
Even when a trial court abuses its discretion in making a discovery ruling, we
will not intervene if the relator has an adequate remedy by appeal. In re Prudential Ins.
Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Appeal is
inadequate when a party is in danger of losing substantial rights, such as (1) when an
appellate court could not cure the trial court’s discovery error, (2) when the discovery
error vitiates or severely compromises a party’s ability to present a viable claim or
defense at trial, or (3) when a party cannot make excluded discovery part of the
appellate record or the trial court, after proper request, refuses to make it part of the
record. See In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) (orig.
5
proceeding); Walker v. Packer, 827 S.W.2d 833, 843–44 (Tex. 1992) (orig. proceeding).
In determining whether appeal is an adequate remedy, we must consider whether the
benefits of mandamus review outweigh the detriments. In re BP Prods. N. Am., Inc.,
244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding); see In re Garza, 544 S.W.3d 836,
841 (Tex. 2018) (orig. proceeding) (“Appeal is not an adequate remedy where the
practically certain effect of the sanctions will be reversal with the attendant waste of
resources and time.”).
The scope of discovery is generally within the trial court’s discretion so long as
a discovery order does not exceed what the Texas Rules of Civil Procedure permit.
See Tex. R. Civ. P. 192.4; State Farm Lloyds, 520 S.W.3d at 604; see In re N. Cypress Med.
Ctr. Operating Co., 559 S.W.3d 128, 129 (Tex. 2018) (orig. proceeding) (“Our
procedural rules allow broad discovery of unprivileged information that is ‘relevant to
the subject matter of the pending action.’” (quoting Tex. R. Civ. P. 192.3(a))). To be
discoverable, evidence must be relevant and nonprivileged, but it need not be
admissible if it is reasonably calculated to lead to the discovery of admissible evidence.
See Tex. R. Civ. P. 192.3(a); In re Nat’l Lloyds Ins., 532 S.W.3d 794, 808 (Tex. 2017)
(orig. proceeding). Thus, although the permitted scope of discovery is generally
broad, a discovery request “must show a reasonable expectation of obtaining
information that will aid the dispute’s resolution.” Nat’l Lloyds, 532 S.W.3d at 808
(quoting In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding)). A trial
court must impose reasonable limitations on requested discovery (1) when it is
6
unreasonably cumulative or can be obtained from a more convenient, less
burdensome, or less expensive source or (2) when the burden or expense to respond
outweighs the discovery’s likely benefit. Tex. R. Civ. P. 192.4; see CSX, 124 S.W.3d at
152–53. Appellate remedies generally cannot cure a trial court’s order compelling
discovery outside its permitted scope, such as when the trial court orders production
of privileged, overly burdensome, or “patently irrelevant or duplicative” materials;
appeal of such an order is inadequate. See Walker, 827 S.W.2d at 843. Likewise, a trial
court’s denying or unreasonably restricting discovery can render an appeal inadequate.
See In re Keenan, 501 S.W.3d 74, 76 (Tex. 2016) (orig. proceeding); Van Waters &
Rogers, Inc., 62 S.W.3d at 199–201.
B. The Rules of Evidence Require Trial Courts to Examine a Deposition
Witness to Determine the Witness’s Competency before the Witness is
Required to Give Deposition Testimony.
C.A. and Davis’s disagreement centers on the interpretation of Texas Rules of
Evidence 104 and 601 as they relate to a deposition witness’s testimony. Rule 104(a)
requires trial courts to determine whether a witness is competent to testify before the
witness gives his or her testimony. See Tex. R. Evid. 104(a). Rule 601 recites that
every person is competent to be a witness except: (1) a person who is now insane or
was insane at the time of the events about which the person is called to testify; and
(2) a child—or any other person—whom the court examines and finds lacks sufficient
intellect to testify concerning the matters in issue. See Tex. R. Evid. 601(a). Such
individuals are deemed incompetent to serve as witnesses.
7
According to C.A., Rules of Evidence 104 and 601 require a trial court to
examine a deposition witness for competency—after a party alleges that the witness is
incompetent—but before the witness is required to give his deposition. Davis, on the
other hand, avers that those rules do not apply to deposition witnesses and their
testimony. Davis argues that a trial court has no duty to examine a witness—for the
purpose of determining if a witness is competent—prior to the witness giving his
deposition testimony.
To decide if the trial court abused its discretion by refusing to conduct a
competency examination of D.T.A., we must construe Texas Rules of Evidence 104
and 601 as they relate to deposition witness testimony. In construing the meaning of
a rule of evidence, an appellate court “should attempt to effectuate the plain language
absent important countervailing considerations.” Lopez v. State, 253 S.W.3d 680, 685
(Tex. Crim. App. 2008). Hence, the plain language of the rules is the place where we
begin our analysis. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012)
(citing Henderson v. State, 962 S.W.2d 544, 551 (Tex. Crim. App. 1997)).
In interpreting the plain language of a word in a rule, we first look to the
word’s definition as prescribed by the Rules of Evidence. In the absence of a
definition in the rules, we construe words according to the rules of grammar and
common usage. See Tex. Gov’t Code Ann. § 311.011(a); see also In re Ford Motor Co.,
442 S.W.3d 265, 271 (Tex. 2014) (orig. proceeding) (holding that in the absence of
statutory definitions, the “ordinary meaning of the statutory text is the first dip of the
8
oar as courts embark on interpretation of a statute”). To determine a word’s
common, ordinary usage, we look to a wide variety of sources, including dictionary
definitions, the appellate courts’ prior constructions of the word in other contexts,
and the use and definitions of the word in other statutes and ordinances.1 See Jaster v.
Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014) (plurality op.).
1. Texas Rule of Evidence 104 – Preliminary Questions
The relevant language in Texas Rule of Evidence 104 provides that trial courts
must decide any preliminary question regarding whether a witness is qualified. Tex. R.
Evid. 104(a). The terms “witness,” “preliminary,” and “qualified,” are not defined in
the Rules of Evidence. See Tex. R. Evid. 101(h). Black’s Law Dictionary, however,
defines these terms.
The legal dictionary states that a “witness” is “[s]omeone who gives testimony
under oath or affirmation (1) in person, (2) by oral or written deposition, or (3) by
affidavit.” 2 Black’s Law Dictionary (11th ed. 2019) (emphasis added). We also note
that the Texas Rules of Civil Procedure refer to a person giving deposition testimony
1
The Texas Rules of Evidence govern civil and criminal proceedings in all
courts of Texas except small claims courts. See Tex. R. Evid. 101(b); Schronk v. City of
Burleson, 387 S.W.3d 692, 703–04 (Tex. App.—Waco 2009, pet. denied). And because
the Rules of Evidence are equally applicable to both Texas civil and criminal cases,
Texas criminal cases may be looked to for guidance in construing the Rules of
Evidence in civil cases. See Tex. Dep’t of Transp. v. Pate, 170 S.W.3d 840, 850 (Tex.
App.—Texarkana 2005, pet. denied) (applying criminal cases in construing Texas Rule
of Evidence 607).
Further, the legal definition of “witness” recites that a “witness must be legally
2
competent to testify.” Black’s Law Dictionary (11th ed. 2019).
9
as a “witness.” See Tex. R. Civ. P. 199.5(a). Accordingly, based on the ordinary
meaning of the word “witness” as demonstrated by reference to standard legal
definitions and the use of the word in other statutory contexts, we conclude that Rule
of Evidence 104 is not limited to trial witnesses and thus applies to deposition
witnesses. Had the Supreme Court intended to limit the meaning of “witness” to trial
witnesses, we presume it would have said just that. Cf. TGS–NOPEC Geophysical Co. v.
Combs, 340 S.W.3d 432, 439 (Tex. 2011).
Black’s Law Dictionary defines “preliminary” as “[c]oming before” and
“leading up to the main part of something happening before something that is more
important, often in preparation for it.” Black’s Law Dictionary (11th ed. 2019); see also
Gilley v. State, 418 S.W.3d 114, 120–21 (Tex. Crim. App. 2014) (holding that the
competency of a witness is a question for the trial court to determine under Rule
104(a) of the Texas Rules of Evidence before the witness testifies); Kokes v. Angelina
College, 148 S.W.3d 384, 389 (Tex. App.—Beaumont 2004, no pet.) (per curiam)
(holding that witness competency is a threshold question for the trial court to determine
pursuant to Texas Rule of Evidence 104(a)). Based on the legal definition of the word
and its construction by other appellate courts, we hold that the word “preliminary”—
as used in Rule 104—means that a trial court must decide if a witness is qualified before
the witness gives his testimony.
Finally, Black’s Law Dictionary defines “qualified” as “[p]ossessing the
necessary qualifications; capable or competent.” Black’s Law Dictionary (11th ed.
10
2019); see In re R.M.T., 352 S.W.3d 12, 16–18 (Tex. App.—Texarkana 2011, no pet.)
(stating that an incompetent person is not qualified to testify at trial); see also Davis v.
State, 268 S.W.3d 683, 699–700 (Tex. App.—Fort Worth 2008, pet. ref’d) (same);
Mobil Oil Corp. v. Floyd, 810 S.W.2d 321, 323 (Tex. App.—Beaumont 1991, orig.
proceeding) (per curiam) (holding that an incompetent person cannot be compelled to
give deposition testimony). As used in Rule 104, we hold that the word “qualified”
means competent to give testimony.
Accordingly, based on the ordinary meaning of the words “witness,”
“preliminary,” and “qualified” as demonstrated by reference to standard legal
definitions, the appellate courts’ prior constructions of the words in other contexts,
and the use of the words in other statutory contexts, we conclude that Rule of
Evidence 104, as it relates to deposition witnesses, requires trial courts to determine
whether a deposition witness is competent before the witness gives his deposition
testimony. See Ford Motor Co., 442 S.W.3d at 271; Jaster, 438 S.W.3d at 563.
2. Texas Rule of Evidence 601 – Competency to Testify
The relevant language in Texas Rule of Evidence 601 provides that every
person is competent to be a witness except a child—or any other person—whom the
court examines and finds lacks sufficient intellect to testify concerning the matters in
issue. Tex. R. Evid. 601(a). The Rules of Evidence do not define the pertinent words
included in Rule 601. See Tex. R. Evid. 101(h). Accordingly, as we did when
construing Rule of Evidence 104, we look to the words in the rule and their common,
11
ordinary usage. And in doing so, we again rely on the words’ dictionary definitions,
the appellate courts’ prior constructions of the words in other contexts, and the use
and definitions of the words in other statutes and ordinances. See Jaster, 438 S.W.3d at
563.
The language of Rule 601 reflects that it applies to any person’s intellect to
“testify” concerning the “matters in issue.” Black’s Law Dictionary defines “testify”
as “[t]o give evidence as a witness.” Black’s Law Dictionary (11th ed. 2019). This
court defined “testimony” as “a statement made by a witness under oath.”3 In re
Guardianship of A.E., 552 S.W.3d 873, 881 n.5 (Tex. App.—Fort Worth 2018, no pet.)
(citing Cauble v. Key, 256 S.W. 654, 655 (Tex. App.—Austin 1923, no writ)). The
Texas Rules of Civil Procedure reflect that a witness’s statements given during his
deposition constitute “testimony.”4 Tex. R. Civ. P. 199.1(a). The language in Rule
3
A deposition witness must take an oath before giving testimony. See Tex. R.
Civ. P. 199.5. An oath is any form of attestation by which a person signifies that he
or she is bound in conscience to perform an act faithfully and truthfully. State v.
Hodges, 595 S.W.3d 303, 306 (Tex. App.—Amarillo 2020, pet. ref’d) (citing Vaughn v.
State, 177 S.W.2d 59, 60 (Tex. Crim. App. 1943)).
4
We note that the rules of evidence and civil procedure treat testimony given by
trial and deposition witnesses as functional equivalents. See Tex. R. Civ. P. 199.5(d)
(stating that a deposition must be conducted in the same manner as if the testimony
were being obtained in court during trial). For example, both trial witnesses and
deposition witnesses are required to take an oath prior to giving testimony. See Tex.
R. Civ. P. 199.5; Tex. R. Evid. 603; see also Glenn v. C & G Elec., Inc., 977 S.W.2d 686,
689 (Tex. App.—Fort Worth 1998, pet. denied) (holding that the oath requirement
applies not only to those who will testify in person in the courtroom, but also to those
who testify by deposition). Additionally, incompetent trial witnesses and deposition
witnesses are prohibited from giving testimony. See Tex. R. Evid. 601(a); Baldit v.
12
601, as in Rule 104, does not limit its application to testimony offered at trial. And
again, we presume that if the Supreme Court had wanted to limit the rule’s application
to trial testimony, it would have stated so in the language of the rule. See TGS–
NOPEC Geophysical Co., 340 S.W.3d at 439.
Finally, Black’s Law Dictionary, defines “matter” as a “subject under
consideration, esp. involving a dispute or litigation.” Black’s Law Dictionary (11th ed.
2019).
After construing Rule 601, we hold that the plain language of the rule provides
that every person is competent to be a witness except a person whom the court
examines and finds lacks sufficient intellect to make a statement under oath during
trial or deposition concerning a subject of a dispute or litigation.
State, 522 S.W.3d 753, 761 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (stating
incompetent witnesses are prohibited from testifying at trial); Kokes, 148 S.W.3d at 390
(holding that deposition witness was competent and able to give testimony because he
understood the obligations of his oath); Hunter v. NCNB Tex. Nat’l Bank, 857 S.W.2d
722, 727 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (holding deposition
testimony was properly excluded because witness was incompetent); Mobil Oil Corp.,
810 S.W.2d at 323 (holding trial court did not err in admitting testimony of deposition
witness because the witness was competent).
Additionally, we note that deposition testimony evidence carries the same
weight as trial testimony. See Austin v. Weems, 337 S.W.3d 415, 427 (Tex. App.—
Houston [1st Dist.] 2011, no pet.) (holding that the jury was free to believe the
witnesses’ trial testimony or the witnesses’ contradictory deposition testimony); cf.
McGuffin v. Terrell, 732 S.W.2d 425, 427 (Tex. App.—Fort Worth 1987, no writ)
(holding that the evidence at trial consisted mainly of appellant’s testimony and the
deposition testimony of her doctor); Tex. R. Evid. 801(e)(3) (setting out rule that a
deponent’s statement taken in the same proceeding is not hearsay).
13
In sum, our construction of Rules of Evidence 104 and 601—as they relate to
deposition witnesses—informs us that trial courts have a duty to examine a deposition
witness to determine the witness’s competency before the witness gives his
deposition.
C. A Trial Court’s Duty to Conduct a Competency Examination is
Triggered Once the Issue is Raised by a Party.
Rule 601 contains a presumption that every person is competent to testify.
Accordingly, a trial court has no duty to conduct a preliminary competency
examination on its own motion. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim.
App. 1998) (“[U]nlike the incompetency to stand trial statute, Rule 601 does not
expressly impose upon the trial court the duty to conduct an inquiry on its own
motion.”). Rule 601’s presumption of competency requires a party seeking to exclude
a witness from testifying to raise the issue of the witness’s competency and to
establish the witness’s incompetency by a preponderance of the evidence. Gilley, 418
S.W.3d at 120–21 (holding that the “party seeking to exclude the witness from
testifying must raise the issue of his competency and shoulders the burden of
establishing incompetency”); R.M.T., 352 S.W.3d at 25 (holding that a witness’s
incompetence to testify must be established by a preponderance of the evidence).
Once the issue of competency is raised, however, the trial court must make “an
14
independent ruling on competency.”5 See Valles v. State, Nos. 05-17-00164-CR, 05-17-
00165-CR, 2018 WL 3359072, at *2 (Tex. App.—Dallas July 10, 2018, no pet.) (mem.
op. on reh’g, not designated for publication) (citing Baldit, 522 S.W.3d at 761); see also
Davis, 268 S.W.3d at 699 (holding that once the competency of a child witness is
challenged, the trial court must assure itself that the child is competent to testify); Kirk
v. State, 653 S.W.2d 647, 651 (Tex. App.—Fort Worth 1983, no pet.) (holding that
once an objection is leveled at the competency of a witness, the trial court has a duty
to conduct a competency hearing).
Although trial courts have a great deal of discretion to determine a witness’s
competency, a trial court’s decision can only be made after the trial court examines the
allegedly incompetent witness.6 See Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 668
(Tex. App.—Houston [14th Dist.] 2012, pet. denied). The trial court’s competency
5
To demonstrate incompetency, it must be shown that the witness did not have
the capacity to observe intelligently at the time of events in question, that a witness
lacks the capacity to recall and narrate the events at time of trial, or that the witness
lacks the capacity to understand the obligation of the oath. R.M.T., 352 S.W.3d at 25;
Mobil Oil Corp., 810 S.W.2d at 323. The third element involves the ability to
understand the moral responsibility to tell the truth, to understand the questions
posed, and to frame intelligent answers. Hogan v. State, 440 S.W.3d 211, 214 (Tex.
App.—Houston [14th Dist.] 2013, pet. ref’d); Rodriguez v. State, 772 S.W.2d 167, 170
(Tex. App.—Houston [14th Dist.] 1989, pet. ref’d).
6
The ruling of a trial court on the issue of competency will not be disturbed on
appeal absent a showing of an abuse of discretion. Hunter, 857 S.W.2d at 727. The
determination of a witness’s competency is within the sound discretion of the trial
court. Garcia v. State, 573 S.W.2d 12, 14 (Tex. Crim. App. [Panel Op.] 1978); DeLeon v.
State, 985 S.W.2d 117, 119 (Tex. App.—San Antonio 1998, pet. ref’d) (holding that
the trial court is given broad discretion in determining preliminary questions regarding
the admissibility of evidence).
15
examination, however, need not be conducted in the same manner as a formal
hearing.
We addressed the scope of a trial court’s competency examination in Gilley v.
State, 383 S.W.3d 301 (Tex. App.—Fort Worth 2012), aff’d, 418 S.W.3d 114 (Tex.
Crim. App. 2014). In that case, the appellant claimed that the complainant was
incompetent and therefore should be prohibited from testifying pursuant to Rule 601.
Id. at 302. In response, the trial court examined the complainant in chambers and
found that she was competent. Id. at 303. On appeal, the appellant argued that the
trial court violated Rule 601 by conducting the competency exam outside of his
presence. Id. at 305–06. We disagreed and pointed out that there is nothing in the
plain language of Rule 601 that prohibits anyone other than the trial judge and the
witness from the examination and that there also is nothing in the plain language that
compels that anyone else attend. Id. Further, we noted that the rule provides, in
pertinent part, that children “who, after being examined by the court, appear not to possess
sufficient intellect to relate transactions with respect to which they are interrogated”
are incompetent to testify. 7 Id. at 305. Finally, we pointed out that Rule 601’s use of
the word “examined,” as in “examined by the court,” does not imply an adversarial
hearing and that to examine is more akin to conducting an “inspection,” “review,”
and “determination.” See id. at 306. In sum, we held that the only two individuals
Although Gilley involved the competency of a child witness, as stated above,
7
Rule 601 applies equally to “any other person.” See supra p. 14; Tex. R. Evid.
601(a)(2). Accordingly, Gilley is applicable to our analysis of this case.
16
whose presence during a competency examination is required by the plain language of
Rule 601 are the trial judge and the witness. Id.
The Court of Criminal Appeals agreed with our interpretation of Rule 601. In
its opinion affirming Gilley, the Court stated that a trial court has discretion to permit
the parties to participate in the Rule 601(a)(2) examination and may even allow the
parties themselves to propound the questions, so long as the trial court itself “makes
an independent ruling on competency” based on that questioning. Gilley, 418 S.W.3d
at 121. Moreover, the Court held that the language of Rule 601(a)(2) “certainly does
not, on its face, require the trial court to permit party participation. And there is no
particular reason why it should, since the typical inquiry into [any other person’s]
capacity to relate facts and appreciate the virtue of veracity is hardly complex.” Id.
(footnote omitted).
Finally, we note that in making a competency determination, a trial court may
rely on an expert’s opinion. See Escamilla v. State, 334 S.W.3d 263, 266–67 (Tex.
App.—San Antonio 2010, pet. ref’d) (holding trial court’s determination that child
was competent to testify—after hearing testimony from psychologist that child
communicated well, had no delusions, did not have any problems with memory
functions, was coherent and logical, and her intelligence was appropriate for her
culture—was not an abuse of discretion); but see State ex rel. Holmes v. Lanford, 764
S.W.2d 593, 594 (Tex. App.—Houston [14th Dist.] 1989, orig. proceeding) (stating
17
that a trial court does not need any “in-depth psychological probing” of a witness in
order to determine if the witness is competent to testify).
D. The Trial Court Abused Its Discretion by Failing to Conduct a
Competency Examination Before Compelling D.T.A.’s Deposition
Testimony Once the Issue was Raised.
Here, C.A. raised the issue of D.T.A.’s competency as soon as Davis served its
notice to take D.T.A.’s deposition. C.A. moved to quash the deposition claiming that
D.T.A. is a mentally incapacitated adult and thus not competent to give a deposition.
In the alternative to quashing the deposition, C.A. requested that the trial court
conduct an examination of D.T.A. pursuant to Rule 601 to determine D.T.A.’s
competency as a witness before compelling his deposition. Specifically, C.A. claimed
that D.T.A. cannot recount historic life events and suffers from cognitive deficits such
as short-term memory loss, long-term memory loss, amnesia, and an inability to
distinguish reality from delusion. C.A. also stated that D.T.A. is incapable of
understanding his moral responsibility to tell the truth and is unable to understand
what it means to take an oath at a deposition or trial. Further, to support their claim
that D.T.A. is mentally incapacitated, C.A. submitted the affidavit of D.T.A.’s treating
physician, Dr. Haider. Dr. Haider swore that D.T.A. is not capable of taking an oath
because he will not be able to understand its meaning. Moreover, Dr. Haider averred
that he does not believe that D.T.A. can make true and completely accurate
statements.
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The trial court’s duty to examine D.T.A.’s competency to give deposition
testimony was triggered once C.A. raised the issue in the trial court. On January 15,
2021, however, without examining D.T.A. to determine his testimonial competency,
the trial court entered an order denying C.A.’s motion to quash D.T.A.’s deposition
and granting Davis’s motion to compel. We hold that the trial court abused its
discretion in ordering D.T.A.’s deposition without first determining that D.T.A. was
competent to testify.8 Further, no adequate remedy by appeal exists on this ruling
because an appellate court could not cure the trial court’s error in ordering the
deposition. AMR Corp. v. Enlow, 926 S.W.2d 640, 644 (Tex. App.—Fort Worth 1998,
orig. proceeding) (holding “no adequate remedy by appeal exists on this ruling
because an appellate court could not cure the trial court’s error in ordering the apex
deposition”). Accordingly, we conditionally grant the writ of mandamus, which will
only issue if respondent fails to vacate his January 15, 2021 order compelling D.T.A.
8
To the extent the trial court’s ruling contemplated a competency determination
only when a party offered D.T.A.’s deposition testimony at trial, it is clear from Rule
601 that the determination must occur either before or contemporaneously with the
proposed testimony, otherwise there is no way the trial court could know if the
witness was competent at the time the testimony was given. Any deposition testimony
given by D.T.A. without a threshold competency determination will not be considered
hearsay, but admissible non-hearsay at the trial on the merits. Tex. R. Evid. 801(e)(1);
Tex. R. Civ. P. 203.6(b) (“All or part of a deposition may be used for any purpose in
the same proceeding in which it was taken.”). Indeed, the transcription of such
testimony must be submitted to D.T.A. for signature and changes, if any, before its
use during trial. Tex. R. Civ. P. 203.1(a), (b). Although the possibility exists that the
trial court could review D.T.A.’s deposition testimony, and any changes he makes
thereto, retrospectively, and thereby determine his testimonial competence after the
fact, this approach sets the cart before the horse and is exactly the opposite of the
threshold determination required by Rules 104 and 601.
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to appear for deposition and fails to examine D.T.A. to determine if he is competent
to give deposition testimony. Additionally, the stay of the trial court’s order is hereby
lifted to facilitate proceedings consistent with this opinion.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: July 1, 2021
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