(a) In general. Except when in conflict with the provisions of the Act, including §28, and Board rules, such as §127.1 of this title (relating to Enforcement), subpoenas and depositions shall be administered in the manner prescribed by the APA and the SOAH Rules of Procedure.
(b) Pre-contested case. When the Staff 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 Commissioner, the Staff may file a request with the Commissioner for a commission to take a deposition as set forth in the APA, §2001.094.
  (1) The request shall show:
    (A) the Staff anticipates the commencement of a contested case;
    (B) the subject matter of the anticipated action and the jurisdiction therein;
    (C) the names and addresses, if known, of the persons expected to be interested adversely to the Staff; and
    (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) Upon filing a request with the 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 Commissioner.
  (3) In any case where justice or necessity so requires, the 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) If satisfied that the perpetuation of testimony may prevent a failure or delay of justice, the 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 §105.12 adopted to be effective April 3, 2012, 37 TexReg 2165