C

JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12548 Austin, TX. 78711. 2548 512/475-2501 Telex 9loia74.1367 Telecopier 512l475-0266

714 Jackson, Suite 700 Dallas, TX. 752024508 2141742.8944

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

December 30, 1983

HonorableLloydDoggett Chairman Comittee on ConsumerAffairs Texas State Senate P. 0. Box 12068,Capitol Station Austin, Texas 78711 Dear SenatorDoggett: OpinionNo.~~-110 Re: Authority of notaries public to take written depositions

You pose the following question on behalf of the Senate Subcommitteeon ConsumerAffairs:

Da notaries public have the authority to take written depositions pursuant to Tex. Rev. Civ. Stat. Ann. articles 1935 and 5954, and other relevant laws? By "written deposition,"we understand you to mean a deposition taken by written questions; that is, by questions submitted to a litigant or witness in non-stenographic,written form, the answers to which are reduced to non-stenographic.written form. T.R.C.P. rule 189. An oral deposition is onewhereby spokenquestionsare addressed to the litigant or witness and the spoken replies are recorded for later transcription. T.R.C.P. rule 199. See generally 19 Tex. Jur. 2dDepositions, §$l-50at 633 et seq. Article 5954,V.T.C.S., lastamended in 1975, states: Notaries Public shall have the same authority to take acknowledgments or proofs of written instruments,protest instrumentspermitted by law to be protested, administer oaths, and take depositions, as is now or may hereafter be conferred by law upon County Clerks . . . . (Emphasisadded). The other statuteyou 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 twoyears. Each such clerk shallbe authorized to

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issue all marriage licenses. to administer all oaths and affirmations,and to takeaffidavitsand depositions to be used as provided by law in any of the courts. (Emphasisadded). 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 proceedingbefore a grand jury, referee, nr court commissionerby means of written symbols or abbreviations in shorthand or machine shorthandwriting or oral stenography." Id. at 03. need not be taken stenographically. T.R.C.P. But depositions rule 215~; Burr v. Shannon, 593 S.W.2d 677 (Tex. 1980). Notaries public have been officers authorized to take written depositions in Texas formany 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);Bryanv. 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 thinkpresent law deprives them of such authority. T.R.C.P. rule 196. See 19Tex. Jur. 2dDepositions, 825 at 654. - SUMMARY Notaries public have authority to take written depositions in non-stenographicform.

JIM MATTOX Attorney General of Texas TOM GREEN FirstAssistantAttorneyGeneral

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DAVID R. RICHARDS ExecutiveAssistantAttorney General Preparedby BruceYoungblood Assistant Attorney General APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Jon Bible David Brooks Colin Carl SusanGarrison JimMoellinger Nancy Sutton BruceYoungblood

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