(dissenting).
I respectfully dissent. This case presents the very narrow question as to whether the appellant waived his right to cross-examine a deposition witness.
This Court, in Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App.—Corpus Christi 1971, no writ), held that as a general rule, deposition evidence is inadmissible in evidence against one not a party to the suit at the time the deposition was taken. While I still agree with such general rule, I believe that such a rule is not absolute and not without exceptions. The Heldt Bros. case is not in point. The rationale behind the general rule is based on the supposition that the adverse party (here Academy Welding) must be afforded an opportunity to cross-examine the deposed witness and absence such an opportunity such evidence does not constitute legally admissible evidence or proof of any fact against such party. See Heldt Bros. Trucks v. Silva, supra; 20 Tex.Jur.2d, Depositions, § 72, p. 27. See also Dalsheimer v. Morris, 28 S.W. 240 (Tex.Civ.App.—1894, no writ); St. Louis Southwestern Ry. Co. of Texas v. Woldert Grocery Co., 144 S.W. 1194 (Tex.Civ.App.—Texarkana 1912, no writ); Allen v. Payne, 334 S.W.2d 607 (Tex.Civ.App.—Texarkana 1960, writ ref’d n. r. e.).
In each of the above cases cited by the majority, the offending characteristic of the , questioned evidence was the absence of an opportunity to cross-examine the witness. As we stated in the Heldt case:
“The right to cross-examination of witnesses by a party in a lawsuit is a valuable and substantial right, and it cannot be denied in the instant case but that the circumstances have, in effect, denied that right to appellants in respect to a material matter that has vitally affected them. They, through no fault of their own, have not been accorded an opportunity to exercise such right, in accordance with the rules governing cross-examination generally.” (Emphasis supplied.)
It is, therefore, the absence of the opportunity to cross-examine which causes such evidence to take on the characteristics of hearsay evidence, which absent some exception, is legally inadmissible. It follows that once such opportunity to exercise such right of cross-examination is afforded the complaining party, irregardless of whether the opportunity is exercised, the reasons for excluding such evidence are no longer present. The right to cross-examine any witness may be waived.
The principle, which is usually recognized by modern jurisdictions, does not necessari*921ly require that there be an actual cross-examination, but only that the adverse party have an opportunity to exercise such right. This, of course, must be in accordance with the rules governing the right of cross-examination generally. 4 A.L.R.3d Depositions— Admission in Evidence p. 1079.
The record before us shows that Carnes’ deposition was taken on January 9, 1975, and filed of record on March 14, 1975. Academy Welding was named as a defendant on June 3, 1975. Academy was served with process on June 6, 1975, and made its first appearance (by answer) on June 25, 1975. Carnes’ deposition was taken prior to the appellant being made a party to this lawsuit.1 From the time Academy Welding became a party (June 6,1975) to the time of the plea of privilege hearing (August 21, 1975), a period of approximately 76 days had elapsed within which said deposition had been on file. Academy, therefore, had full opportunity to examine Carnes’ deposition in the file and to decide whether they would again depose him upon oral examination as they may have considered necessary or desirable in order to fully protect their interest in the case. There is no evidence that Academy decided that it would be necessary to depose Mr. Carnes.
The plea of privilege hearing began on August 21, 1975, at which time both parties were present, appeared and announced ready to proceed. At the plea of privilege hearing, Carnes’ attorney offered into evidence the testimony of plaintiff, Roy W. Carnes, as contained in his deposition. Academy’s attorney objected and for his grounds stated the following:
“MR. STEAKLEY: Your Honor, I will object to the introduction of this testimony from the deposition because that deposition was taken at a time before we were made a party to this lawsuit; and, therefore, it is hear say as to us. We did not have the right of cross examination at that deposition.
The record will reflect we were not brought into this lawsuit until sometime in the latter part of June of this year, and that deposition was taken before that time. Therefore, it is clearly hearsay, and is not binding on us and not adissible as to us.”
Opposing counsel then stated:
“If Mr. Steakley would like an opportunity to take the deposition of Mr. Carnes, we will be happy to submit him for his examination. If he would like a continuance of this hearing until he has had time to take a deposition, we have no objections to that.” (Emphasis supplied.)
There could be no more asked of opposing counsel than that which was here offered. The opportunity to take Carnes’ deposition and a continuance for that purpose. The following conversation then took place between the Court and appellant’s attorney: (Questions to appellant’s attorney)
“THE COURT: Now, do you want to depose Mr. Carnes?
MR. STEAKLEY: Yes, Your Honor. I will object to them using his testimony at this time. If it becomes necessary for us to later, or if the Court grants a continuance, I am sure we will want to depose Mr. Carnes, or enter some agreement later on.
THE COURT: I will grant a continuance if you are going to take his deposition in the immediate future.
MR. STEAKLEY: As far as I know, there are no plans right now to take his deposition.
THE COURT: Tell the Court whether you are going to or not. If you are not going to take it, I don’t think you have much objection. If you are really going to take it, tell the Court and we will proceed on that.
*922MR. STEAKLEY: Your Honor, I frankly don’t know. I haven’t had a chance to—
THE COURT: You have got to jump one way or the other, see. If your objection is really that you haven’t had a chance to depose the man; fine, I will grant you a continuance. But, I don’t want to grant a continuance if you are not going to do it. You are not going to tell the Court that you object to it, then not going to take the deposition?
MR. STEAKLEY: No, I am not. But, my objection, Your Honor, is that we have not had a chance—
THE COURT: Tell me what you are going to do.
MR. STEAKLEY: The problem is maybe, and I don’t know, because I just started, looked over the file starting yesterday. It may be that we can later enter some agreement after studying the deposition that we will allow — That we will not raise this objection. But, at this time, we have not entered into that agreement, and it may not be necessary to take a deposition. So, I don’t represent to the Court something I don’t know at this particular time. I just frankly don’t know.
THE COURT: Well, if you have no plans and are not even planning on it, and don’t think you will take Mr. Carnes’ deposition, of course, we will go on and proceed here this morning; but, we are not going to cut you out; if you are going to do it, fine, we will give you time.
MR. STEAKLEY: Then, for the time being, I would request that we have the time to do it.
THE COURT: You are telling the Court that you are going to take Mr. Carnes’ deposition?
MR. STEAKLEY: No, sir; Your Honor.
THE COURT: Then, your objection is overruled.”
The majority states that they are not holding that the right of cross-examination of a deponent can never be waived by a party joined in a suit after the deposition has been taken, but that under the facts of this case the right has not been waived. I disagree as to the latter.
The above dialogue between the Court and Academy’s attorney clearly demonstrates that the opportunity to cross-examine was offered and refused.
The opportunity given to the appellant to cross-examine the witness by both the opposing attorney and the Court, together With the failure of Academy to exercise such opportunity, plus Academy’s inaction for over two months while the Carnes’ deposition was on file, clearly shows a basis for waiver by the appellant. The trial court must make that determination when making its ruling at the time the evidence was offered. On appeal, the question then before the appellate court, is whether the trial court abused its discretion in refusing to permit the appellant to cross-examine the witness. This necessarily becomes a law question. In determining whether the trial court abused its discretion, we must view the facts and circumstances surrounding its ruling. The basis for excluding the evidence (deposition) is the lack of an opportunity to cross-examine the adverse party.
Here, the opportunity to cross-examine Carnes was offered by both opposing counsel and by the court. The opportunity was not accepted. Since the opportunity was present, the basis for exclusion was no longer present, therefore, there was no bar to the admissibility of the evidence.
The test for determining the propriety of the trial court’s decision (as to whether to admit into evidence the deposition testimony) is whether the trial court abused its discretion in doing so. Considering all the circumstances, I would hold that the trial court did not abuse its discretion in overruling appellant’s objection to the introduction of the deposition testimony. I would hold that as a matter of law that the appellant waived the right to cross-examine the witness.
. In the Heldt case, this was not so. “The depositions were not on file when appellants made their appearance in the suit and there is nothing in the record that indicates that appellants knew about them until May 7, 1970, when they were filed in the trial court; therefore, appellants cannot be charged with notice of the outstanding depositions at the time of making their appearance in the case.” Heldt Bros. Trucks v. Silva, 464 S.W.2d 931, at pp. 936-937.