Could a Texas notary public take a deposition by written questions without acting as a certified shorthand reporter?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-110: Notaries Taking Written Depositions
Plain-English summary
JM-110 concluded that Texas notaries public could take depositions by written questions when the process was non-stenographic. Articles 5954 and 1935 gave notaries the same deposition-taking authority as county clerks.
"Notaries public have authority to take written depositions in non-stenographic form."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf"These statutes plainly authorize notaries to take depositions unless some other law withdraws such authority."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
The opinion defined a written deposition as written questions and written answers, rather than spoken questions recorded for later transcription.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
The certified-court-reporter statute restricted the practice of shorthand reporting, which involved making a verbatim record of an oral proceeding or deposition. It did not require every deposition to be stenographic.
"Shorthand reporting is 'the making of a verbatim record of an oral court proceeding, deposition, or proceeding before a grand jury, referee, or court commissioner by means of written symbols or abbreviations in shorthand or machine shorthand writing or oral stenography.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf"But depositions need not be taken stenographically."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What was the difference between a written and oral deposition?
A written deposition used written questions and non-stenographic written answers. An oral deposition used spoken questions and replies recorded for later transcription.
"An oral deposition is one whereby spoken questions are addressed to the litigant or witness and the spoken replies are recorded for later transcription."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
What authority did article 5954 give notaries?
It gave notaries the same authority as county clerks to take acknowledgments, administer oaths, and take depositions.
"Notaries Public shall have the same authority to take acknowledgments or proofs of written instruments, protest instruments permitted by law to be protested, administer oaths, and take depositions, as is now or may hereafter be conferred by law upon County Clerks."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
Did court-reporter certification law eliminate the notary's authority?
No. The opinion read the certification rules as limiting shorthand reporting, not non-stenographic written depositions.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
Was notary deposition authority new in 1983?
No. JM-110 described notaries as having held authority to take written depositions in Texas for many years.
"Notaries public have been officers authorized to take written depositions in Texas for many years."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
Background and legal framework
The Senate Subcommittee on Consumer Affairs asked whether notaries could take written depositions under articles 1935 and 5954 and related law.
"Do notaries public have the authority to take written depositions pursuant to Tex. Rev. Civ. Stat. Ann. articles 1935 and 5954, and other relevant laws?"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
Article 1935 authorized county clerks to administer oaths and take affidavits and depositions for use in court. Article 5954 extended the same authority to notaries.
"Each such clerk shall be authorized to 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
Holding
"Notaries public have authority to take written depositions in non-stenographic form."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0110
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0110.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
December 30, 1983
Honorable Lloyd Doggett
Chairman
Committee on Consumer Affairs
Texas State Senate
P. O. Box 12068, Capitol Station
Austin, Texas 78711
Opinion No. JM-110
Re: Authority of notaries public to take written depositions
Dear Senator Doggett:
You pose the following question on behalf of the Senate Subcommittee on Consumer Affairs:
Do 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 one whereby spoken questions are 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. 2d Depositions, §§ 1-50 at 633 et seq.
Article 5954, V.T.C.S., last amended in 1975, states:
Notaries Public shall have the same authority to take acknowledgments or proofs of written instruments, protest instruments permitted by law to be protested, administer oaths, and take depositions, as is now or may hereafter be conferred by law upon County Clerks. . . .
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 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.
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, §§ 1, 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, or court commissioner by means of written symbols or abbreviations in shorthand or machine shorthand writing or oral stenography." Id. at § 3. But depositions need not be taken stenographically. T.R.C.P. rule 215c; 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. Hatfield, 235 S.W. 978 (Tex. Civ. App. - Fort Worth 1921, no writ); Missouri Pacific Railway Co. v. Baldwin, 273 S.W. 834 (Tex. Comm'n 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, § 25 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
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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