Untitled Texas Attorney General Opinion ( 1983 )

C
The Attorney General of Texas
JIM MATTOX
December 30, 1983
Attorney General
Supreme Court Building Honorable Lloyd Doggett Opinion No. ``-110
P. 0. Box 12548
Chairman
Austin, TX. 78711. 2548
512/475-2501
Comittee on Consumer Affairs Re: Authority of notaries
Telex 9loia74.1367 Texas State Senate public to take written
Telecopier 512l475-0266 P. 0. Box 12068, Capitol Station depositions
Austin, Texas 78711
714 Jackson, Suite 700
Dallas, TX. 752024508
Dear Senator Doggett:
2141742.8944
You pose the following question on behalf of the Senate
Subcommittee on Consumer Affairs:
4824 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
915/533-3484
Da notaries public have the authority to take
written depositions pursuant to Tex. Rev. Civ.
F Stat. Ann. articles 1935 and 5954, and other
001 Texas, Suite 700 relevant laws?
Houston, TX. 77W2-3111
713/223-5886
By "written deposition," we understand you to mean a deposition
taken by written questions; that is, by questions submitted to a
806 Broadway, Suite 312 litigant or witness in non-stenographic, written form, the answers to
Lubbock, TX. 79401.3479 which are reduced to non-stenographic. written form. T.R.C.P. rule
So6/747-5238 189. An oral deposition is one whereby spoken questions are addressed
to the litigant or witness and the spoken replies are recorded for
4309 N. Tenth, Suite S later transcription. T.R.C.P. rule 199. See generally 19 Tex. Jur.
McAllen, TX. 78501-1685 2d Depositions, §$l-50 at 633 et seq.
512/682-4547
Article 5954, V.T.C.S., last amended in 1975, states:
200 Main Plaza, Suite 400
San Antonio, TX. 78205.2797 Notaries Public shall have the same authority to
5121225.4191 take acknowledgments or proofs of written
instruments, protest instruments permitted by law
to be protested, administer oaths, and take
An Equal Opportunity/
Affirmative Action Employer
depositions, as is now or may hereafter be
conferred by law upon County Clerks . . . .
(Emphasis added).
The other statute you cite, article 1935, V.T.C.S., provides:
A clerk of the county court of each county shall
be elected at each general election for a term of
two years. Each such clerk shall be authorized to
p. 461
Honorable Lloyd Doggett - Page 2 (J&110)
issue all marriage licenses. to administer all
oaths and affirmations, and to take affidavits and
depositions to be used as provided by law in any
of the courts. (Emphasis added).
These statutes plainly authorize notaries to take depositions unless
some other law withdraws such authority. - See Ex parte Stiles, 150
S.W.2d 234 (Tex. 1941).
Other than parties to litigation, their attorneys or the full
time employees of either, only official court reporters and deputy
court reporters holding certificates issued by the Supreme Court of
Texas may engage in the practice of shorthand reporting for use in
litigation in the courts of the state, except by affidavit that no
certified shorthand reporter is available, or by stipulation.
V.T.C.S. art. 2324b. 591, 3, 14, 15. Shorthand reporting is "the
making of a verbatim record of an oral court proceeding, deposition,
or proceeding before a grand jury, referee, nr court commissioner by
means of written symbols or abbreviations in shorthand or machine
shorthand writing or oral stenography." Id. at 03. But depositions
need not be taken stenographically. T.R.C.P. rule 215~; Burr v.
Shannon, 593 S.W.2d 677 (Tex. 1980).
Notaries public have been officers authorized to take written
depositions in Texas for many years. Cf. Bush v. Barron, 14 S.W. 238
(Tex. 1890); Otis v. Ratfield, 235 SK 978 (Tex. Civ. App. - Fort
Worth 1921, no writ); Missouri Pacific Railway Co. v. Baldwin, 273
S.W. 834 (Tex. Comm. App. 1925); Bryan v. United States Fire Insurance
Co., 456 S.W.2d 702 (Tex. Civ. App. - Corpus Christi 1970, writ ref'd
n.r.e.). We do not think present law deprives them of such authority.
T.R.C.P. rule 196. -See 19 Tex. Jur. 2d Depositions, 825 at 654.
SUMMARY
Notaries public have authority to take written
depositions in non-stenographic form.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
p. 462
Honorable Lloyd Doggett - Page 3 (JM-110)
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 463