                 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.
