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




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