1. (a) On a showing of good cause, and on deposit of sums that will reasonably ensure payment of witness fees and mileage, the Securities Commissioner shall issue a subpoena addressed to the sheriff or any constable to require the attendance of witnesses and the production of books, accounts, records, papers, correspondence, or other objects as may be necessary and proper for the purposes of the proceedings.
2. (b) On deposit of sums that will reasonably ensure payment of witness fees and mileage, the Securities Commissioner shall issue a commission, addressed to the several officers authorized by statute to take depositions, to require that the deposition of a witness be taken, which commission shall authorize the issuance of any subpoenas necessary.
3. (c) Any party desiring to take a deposition shall make written application therefor, serve notice thereof on all parties, setting forth the name and address of the witness, and the time and place proposed for the taking of the deposition.
4. (d) Depositions will be taken in the manner prescribed for depositions in the APA.

5. (e) A witness or deponent who is not a party and who is subpoenaed or otherwise compelled to attend any hearing or proceeding to give a deposition or to produce books, accounts, records, papers, correspondence, or other objects that may be necessary and proper for the purposes of the proceeding is entitled to receive:

   1. (1) mileage allowance as required by law, for going to and returning from the place of the hearing or the place where the deposition is taken, if the place is more than 25 miles from the person's place of residence; and
   2. (2) a fee as required by law, for each day or part of a day the person is necessarily present as a witness or deponent.
6. (f) Mileage and fees to which a witness is entitled shall be paid by the party at whose request the witness appears or the deposition is taken, on presentation of proper vouchers sworn by the witness and approved by the Securities Commissioner.
7. (g) Reimbursement of travel expenses for witnesses whose presence is required by the Securities Commissioner at hearings and investigative proceedings shall be at the same rate as is paid to state employees traveling on state business.

8. (h) When the staff of the State Securities Board anticipates the commencement of a contested case and determines that it is necessary to perpetuate testimony to prevent a failure or delay of justice due to the risk of unavailability of the testimony after the action is commenced, such as with the acute illness of a potential witness or receipt of information that the potential witness intends to leave the subpoena jurisdiction of the Securities Commissioner, the staff may file a request with the Commissioner for a commission to take a deposition as set forth in subsection (b) of this section.

   1. (1) The request shall show:

      1. (A) the staff anticipates the commencement of a contested case;
      2. (B) the subject matter of the anticipated action and the jurisdiction therein;
      3. (C) the names and addresses, if known, of the persons expected to be interested adversely to the staff; and
      4. (D) the names and addresses of the persons to be examined, the substance of the testimony which the staff expects to elicit from each, and the reasons why the testimony is necessary to prevent a failure or delay of justice.
   2. (2) Upon filing a request with the Securities Commissioner, a notice and copy of the request shall be served upon the witness, or witnesses, and upon each person named in the request as an expected adverse party. Each person served with a copy of the request shall have the right to respond to the request within 10 days of service of notice by filing a response with the staff and the Securities Commissioner.
   3. (3) In any case where justice or necessity so requires, the Securities Commissioner may permit the taking of such depositions upon shorter notice than required by paragraph (2) of this subsection, or may extend such time in order to permit service on any adverse party.
   4. (4) If satisfied that the perpetuation of testimony may prevent a failure or delay of justice, the Securities Commissioner may issue a commission authorizing the taking of such deposition. At such deposition the parties identified by the staff as adverse persons or other parties identified shall have the right to attend and pose questions to the deponent.

Source Note:The provisions of this §105.13 adopted to be effective April 8, 1997, 22 TexReg 3213; amended to be effective December 6, 1998, 23 TexReg 12292.