§ 121.013.Subpoena of Witness; Attachment

The compulsion provision, and it is the sharpest power in the chapter.

On the sworn application of a person interested in the proof of an instrument, stating that a witness refuses to appear and testify and that the instrument cannot be proven without that evidence, an officer shall issue a subpoena requiring the witness to appear and testify about the execution.

The application does the gatekeeping. It must be sworn, must come from someone interested in the proof, and must assert both a refusal and that the proof fails without this witness. Once made, issuance is mandatory.

If the witness fails to obey, the officer has the same powers to enforce attendance and compel answers as does a district judge.

That is a considerable delegation. A notary public exercising a district judge’s compulsion powers is unusual in Texas law, and it exists because proof of an instrument is otherwise defeated by a single uncooperative witness.

Two limits check it, and both protect the witness.

Attachment may not issue unless the witness receives or is tendered the same compensation paid to witnesses in other cases. A witness cannot be arrested for failing to attend without payment.

An officer may not require the witness to leave the county of residence — though a witness temporarily present in the county where the instrument is being proved may be required to appear.

The second half of that rule is what makes it workable. Otherwise a witness could defeat the proof by living elsewhere while standing in the county.