The Hidden Trap: How CPRC Section 30.012 Undermines Remote Testimony in Texas Courts

A cautionary tale for practitioners navigating the intersection of statutory requirements and procedural rules

The conference room falls silent. Counsel has timely provided notice that their key witness will testify remotely from Houston while the trial proceeds in Austin. No objections were filed. The witness connects via videoconference, raises their right hand, and begins the oath. Then opposing counsel stands: "Your Honor, I object. This witness hasn't been deposed as required by Civil Practice and Remedies Code Section 30.012."

The objection is correct. The witness cannot testify remotely.

This scenario illustrates a fundamental tension between competing authorities governing remote appearances. While Rule 21d embraces flexible electronic participation through a notice-and-objection framework, Section 30.012 imposes restrictive requirements that can derail carefully planned remote testimony.

The Legal Framework: When Statutes Override Rules

The interpretive principle remains settled: specific statutes control over general procedural rules.¹ Section 30.012, enacted in 2001 and amended in 2023, specifically governs electronic testimony in district and statutory county courts. Rule 21d, adopted in 2023, provides general procedures for court appearances by electronic means. Where they conflict, Section 30.012 prevails.

Section 30.012 requires "the agreement of the parties" for any electronic testimony, whether at preliminary hearings or trial. For trial testimony specifically, Section 30.012(b) adds a deposition requirement: "witness testimony at trial in a district or statutory county court may be conducted by electronic means only if the witness is deposed before the commencement of the trial."

The statutory term "trial" raises important interpretive questions. Practitioners should consider whether "trial" encompasses any proceeding that results in an appealable order, not merely traditional jury trials. This distinction proves particularly important in probate proceedings, where attorneys must determine whether a hearing is interlocutory or will result in a final, appealable order to evaluate whether the deposition requirement might apply.

Most restrictively, the statute declares that "[n]either the court nor any party may waive the requirement to depose the witness under this subsection if any party objects."

Rule 21d operates differently. The default rule requires physical presence, but establishes a notice-and-objection framework where parties may provide notice of remote appearances subject to judicial oversight based on good-cause factors, including case complexity, technological limitations, and accommodation needs.² Rule 21d also restricts judicial power: courts "must not require" electronic appearances for proceedings involving oral testimony absent good cause or party agreement.³

The Procedural Trap

Section 30.012's dual requirements create overlapping procedural minefields. The agreement requirement means unilateral notice of remote testimony, perfectly acceptable under Rule 21d, fails to satisfy Section 30.012's threshold. Even with party agreement, trial testimony triggers the non-waivable deposition requirement.

Opposing counsel may agree to remote testimony during case management, then object at trial specifically to the lack of prior deposition. Courts face a stark choice—exclude the remote testimony entirely or continue the trial to allow the required deposition. The statutory language removes judicial discretion once objections surface, though courts retain discretion to continue proceedings as an equitable remedy when exclusion would create unfair prejudice.

This dynamic encourages tactical delays while penalizing lawyers who follow good-faith notice procedures.

Practical Impact: Economic Inefficiency and Access Barriers

These conflicting requirements create significant problems in contexts where remote testimony addresses genuine needs. Family law temporary hearings become procedurally complicated by agreement requirements. Probate proceedings involving elderly parties with restricted mobility face unnecessary hurdles. Commercial litigation involving scattered witnesses faces dual burdens of securing unanimous consent plus arranging depositions.

The economic inefficiency reveals a fundamental flaw. If a deposition covering anticipated trial testimony is required, why consider taking remote testimony at all? The statute effectively mandates duplicative proceedings—the same witness providing identical testimony twice, once in deposition and again remotely at trial.

This becomes particularly acute with expert witnesses. A medical expert charging $750 per hour must now be compensated for both deposition time and remote trial testimony to present essentially identical content. Court reporters, videographers, and attorney time multiply. If Section 30.012 requires substantive depositions anyway, parties might reasonably conclude that using deposition testimony under the Texas Rules of Evidence provides better value than paying for duplicative remote appearances.

These challenges create unnecessary access to justice barriers. The deposition requirement transforms accessible remote testimony into prohibitively expensive duplicated proceedings, denying essential witnesses to parties who most need flexible appearance options.

Practical Solutions

Until legislative reform addresses Section 30.012's problems, practitioners must navigate its requirements strategically.

Comprehensive Party Agreements: Secure explicit written agreements from all parties before relying on remote testimony. However, recognize that Section 30.012 expressly prevents waiver "if any party objects," meaning even irrevocable agreements cannot cure the problem once objections surface. The strategy must focus on preventing objections from arising rather than attempting to waive requirements after objections occur.

Draft language binding parties not to object and including enforcement mechanisms:

"The parties hereby agree that witnesses may testify remotely via videoconference or other electronic means in this matter. For trial testimony, the parties further agree not to object to remote witness testimony based on the absence of prior deposition under Civil Practice and Remedies Code Section 30.012(b). This agreement is binding on all parties and their counsel. Any party breaching this agreement by raising such an objection shall be responsible for all costs associated with any resulting trial continuance and shall pay for the deposition of the remote witness, including court reporter fees, attorney time, and witness compensation."

Creative Deposition Compliance: Section 30.012 provides no guidance about deposition scope, duration, or content. Could the following represent possible, minimal alternatives to full depositions?

Minimal depositions: Schedule formal depositions, swear witnesses, establish their identity, then immediately conclude. This approach argues the witness has been "deposed" within the literal statutory requirement regardless of substantive content.

Written question depositions: Rule 200 depositions can address basic qualification questions through written interrogatories, minimizing cost and scheduling complexity.

Suspended depositions: Practitioners might consider beginning depositions, establishing basic information, then suspending under Rule 199.3 for "scheduling conflicts," though this approach carries risks since the deposition's completion status remains uncertain.

These approaches explore the statute's literal boundaries but carry significant risks. Courts may require depositions that substantially cover anticipated trial testimony, viewing minimal compliance as bad faith attempts to circumvent statutory requirements. Practitioners should carefully consider whether creative compliance strategies might invite judicial scrutiny or opposing counsel challenges that ultimately harm their clients' interests. When in doubt, conducting substantive depositions that mirror expected trial testimony provides the safest compliance path, despite the additional costs and procedural burdens.

Strategic Documentation: Provide remote testimony notice as early as possible, preferably in initial disclosures or case management proposals. Document notice carefully and request responses within defined timeframes to create records establishing apparent agreement.

The Need for Legislative Reform

Section 30.012 reflects outdated assumptions about electronic testimony that modern practice has rendered obsolete. Enacted years before COVID fundamentally changed how courts operate, the statute originally addressed rare instances of remote testimony conducted over special full-duplex telephone systems where courts and parties could not see the witness. (I still have one of those old conference phones on my bench gathering dust.) When remote testimony was experimental and potentially problematic, heightened restrictions may have seemed reasonable.

The transformation proves most dramatic in probate practice. Most, if not all, uncontested probate hearings now occur remotely—probate of wills, heirships, and guardianships. Each of these hearing types results in final orders that implicate Section 30.012(b)'s deposition requirement for any remote witness testimony.

The statute's most recent evolution defies logical explanation. Inexplicably, Section 30.012 was amended to become more restrictive during the same legislative session that adopted Rule 21d's flexible framework. No available legislative history supports this counterintuitive timing. The harm Section 30.012 seeks to cure remains unclear, particularly when courts now routinely conduct hearings remotely with sophisticated videoconferencing technology that permits visual observation of witnesses and comprehensive record-making.

Rule 21d, adopted after the pandemic normalized electronic court proceedings, reflects modern courtroom practices and technological capabilities that make remote testimony routine rather than exceptional. Legislative reform should consider complete repeal of the deposition requirement to harmonize Section 30.012 with Rule 21d's flexible framework. Alternatively, meaningful exceptions based on case complexity, witness availability, and practical considerations could preserve necessary safeguards while eliminating unnecessary burdens.

Conclusion

Texas practitioners planning remote witness testimony must recognize Section 30.012's continuing constraints despite Rule 21d's more liberal framework. The statute's requirements are real, enforceable, and potentially case-dispositive. Smart practice requires early identification of remote testimony needs, strategic use of comprehensive party agreements, and careful attention to the statute's literal requirements.

Until the Legislature provides comprehensive reform, awareness and careful planning remain the practitioner's best defense against Section 30.012's procedural traps. Courts cannot help practitioners navigate around the statute's requirements once objections surface—judicial hands are effectively tied by statutory language that removes discretion.

The historical context illuminates why reform has become essential. Perhaps the time has come to retire the outdated restrictions of Section 30.012 and embrace the full, unrestricted flexibility that Rule 21d offers to meet the practical needs of contemporary legal practice.

1. See TEX. GOV'T CODE § 311.025 (specific provision controls over general provision); Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 252-53 (Tex. 1999).

2. TEX. R. CIV. P. 21d(b)(2), (d)-(e).

3. TEX. R. CIV. P. 21d(b)(2)(A)-(B).