If a subpena requires the attendance of a witness before an officer or commissioner out of court, it shall, for a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, also require the witness to attend a session of the court issuing the subpena at a time and place thereof to be fixed by said officer or commissioner.
§ 1985.5.Subpena for attendance before officer or commissioner out of court; alternative requirement
Title 3. Of the Production of Evidence · Chapter 2. Means of Production · Enacted 1690 · no amendments on record · Last verified July 29, 2026
In one sentenceSection 1985.5 requires a subpoena for attendance before an officer or commissioner outside of court to also compel the witness to appear before the issuing court if the witness refuses to be sworn, refuses to answer, or refuses to sign a required affidavit or deposition.
Full Text of § 1985.5
Plain-English Summary
Testimony taken out of court, before an officer or commissioner rather than a judge, still needs a backstop for when a witness balks. This section supplies it: a subpoena calling for attendance before such an officer or commissioner must also require the witness, if the witness refuses to be sworn, refuses to answer as a witness, or refuses to sign an affidavit or deposition when required, to instead appear before the court that issued the subpoena.
The officer or commissioner sets the time and place for that court appearance. This gives the out-of-court proceeding real enforcement power, since an uncooperative witness cannot stonewall the officer and walk away; the matter can be escalated straight to the issuing court.
Frequently Asked Questions
What triggers the requirement to appear before the issuing court under this section?
The witness refusing to be sworn, refusing to answer as a witness, or refusing to subscribe an affidavit or deposition when required, during an out-of-court proceeding before an officer or commissioner.
Who sets the time and place for that follow-up court appearance?
The officer or commissioner before whom the original out-of-court attendance was required.
Why does the law require this fallback appearance requirement?
To give the issuing court a way to address a witness's noncooperation when the proceeding is taking place outside of court before an officer or commissioner.
Amendment History
(Added by Stats.1941, c. 405, p. 1690, § 1.)
Source & verification. Section text is reproduced verbatim from
the West's Annotated California Codes / Thomson Reuters. Enacted by the California Legislature.
Last verified July 29, 2026.
· Official source
Also known as: subpoena before officer out of court refusal to testifycommissioner deposition witness refuses to answer