Rules of Evidence: Admissibility of Evidence Against Parties and for Specific Purposes, Lecture notes of Civil procedure

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TEXAS RULES OF EVIDENCE

Effective June 1, 2020

ARTICLE I. GENERAL PROVISIONS Rule 101. Title, Scope, and Applicability of the Rules; Definitions Rule 102. Purpose Rule 103. Rulings on Evidence Rule 104. Preliminary Questions Rule 105. Evidence That Is Not Admissible Against Other Parties or for Other Purposes Rule 106. Remainder of or Related Writings or Recorded Statements Rule 107. Rule of Optional Completeness

ARTICLE II. JUDICIAL NOTICE Rule 201. Judicial Notice of Adjudicative Facts Rule 202. Judicial Notice of Other States’ Law Rule 203. Determining Foreign Law Rule 204. Judicial Notice of Texas Municipal and County Ordinances, Texas Register Contents, and Published Agency Rules

ARTICLE III. PRESUMPTIONS Rule 301. [No Rules Adopted at This Time]

ARTICLE IV. RELEVANCE AND ITS LIMITS Rule 401. Test for Relevant Evidence Rule 402. General Admissibility of Relevant Evidence Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons Rule 404. Character Evidence; Crimes or Other Acts Rule 405. Methods of Proving Character Rule 406. Habit; Routine Practice Rule 407. Subsequent Remedial Measures; Notification of Defect Rule 408. Compromise Offers and Negotiations Rule 409. Offers to Pay Medical and Similar Expenses Rule 410. Pleas, Plea Discussions, and Related Statements Rule 411. Liability Insurance Rule 412. Evidence of Previous Sexual Conduct in Criminal Cases

ARTICLE V. PRIVILEGES Rule 501. Privileges in General Rule 502. Required Reports Privileged By Statute Rule 503. Lawyer–Client Privilege Rule 504. Spousal Privileges Rule 505. Privilege For Communications to a Clergy Member Rule 506. Political Vote Privilege Rule 507. Trade Secrets Privilege Rule 508. Informer’s Identity Privilege Rule 509. Physician–Patient Privilege

Rule 510. Mental Health Information Privilege in Civil Cases Rule 511. Waiver by Voluntary Disclosure Rule 512. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege Rule 513. Comment On or Inference From a Privilege Claim; Instruction

ARTICLE VI. WITNESSES Rule 601. Competency to Testify in General; “Dead Man’s Rule” Rule 602. Need for Personal Knowledge Rule 603. Oath or Affirmation to Testify Truthfully Rule 604. Interpreter Rule 605. Judge’s Competency as a Witness Rule 606. Juror’s Competency as a Witness Rule 607. Who May Impeach a Witness Rule 608. A Witness’s Character for Truthfulness or Untruthfulness Rule 609. Impeachment by Evidence of a Criminal Conviction Rule 610. Religious Beliefs or Opinions Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence Rule 612. Writing Used to Refresh a Witness’s Memory Rule 613. Witness’s Prior Statement and Bias or Interest Rule 614. Excluding Witnesses Rule 615. Producing a Witness’s Statement in Criminal Cases

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Rule 701. Opinion Testimony by Lay Witnesses Rule 702. Testimony by Expert Witnesses Rule 703. Bases of an Expert’s Opinion Testimony Rule 704. Opinion on an Ultimate Issue Rule 705. Disclosing the Underlying Facts or Data and Examining an Expert About Them Rule 706. Audit in Civil Cases

ARTICLE VIII. HEARSAY Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay Rule 802. The Rule Against Hearsay Rule 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness Rule 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable as a Witness Rule 805. Hearsay Within Hearsay Rule 806. Attacking and Supporting the Declarant’s Credibility

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION Rule 901. Authenticating or Identifying Evidence Rule 902. Evidence That Is Self-Authenticating Rule 903. Subscribing Witness’s Testimony

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1001. Definitions That Apply to This Article Rule 1002. Requirement of the Original Rule 1003. Admissibility of Duplicates Rule 1004. Admissibility of Other Evidence of Content Rule 1005. Copies of Public Records to Prove Content Rule 1006. Summaries to Prove Content Rule 1007. Testimony or Statement of a Party to Prove Content Rule 1008. Functions of the Court and Jury Rule 1009. Translating a Foreign Language Document

ARTICLE I.

GENERAL PROVISIONS

Rule 101. Title, Scope, and Applicability of the Rules; Definitions

(a) Title. These rules may be cited as the Texas Rules of Evidence.

(b) Scope. These rules apply to proceedings in Texas courts except as otherwise provided in subdivisions (d)-(f).

(c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.

(d) Exception for Constitutional or Statutory Provisions or Other Rules. Despite these rules, a court must admit or exclude evidence if required to do so by the United States or Texas Constitution, a federal or Texas statute, or a rule prescribed by the United States or Texas Supreme Court or the Texas Court of Criminal Appeals. If possible, a court should resolve by reasonable construction any inconsistency between these rules and applicable constitutional or statutory provisions or other rules.

(e) Exceptions. These rules—except for those on privilege—do not apply to:

(1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;

(2) grand jury proceedings; and

(3) the following miscellaneous proceedings:

(A) an application for habeas corpus in extradition, rendition, or interstate detainer proceedings;

(B) an inquiry by the court under Code of Criminal Procedure article 46B.004 to determine whether evidence exists that would support a finding that the defendant may be incompetent to stand trial;

(C) bail proceedings other than hearings to deny, revoke, or increase bail;

(D) hearings on justification for pretrial detention not involving bail;

(E) proceedings to issue a search or arrest warrant; and

(F) direct contempt determination proceedings.

(f) Exception for Justice Court Cases. These rules do not apply to justice court cases except as authorized by Texas Rule of Civil Procedure 500.3.

(g) Exception for Military Justice Hearings. The Texas Code of Military Justice, Tex. Gov’t Code §§ 432.001-432.195, governs the admissibility of evidence in hearings held under that Code.

(h) Definitions. In these rules:

(1) “civil case” means a civil action or proceeding;

(2) “criminal case” means a criminal action or proceeding, including an examining trial;

(3) “public office” includes a public agency;

(4) “record” includes a memorandum, report, or data compilation;

(5) a “rule prescribed by the United States or Texas Supreme Court or the Texas Court of Criminal Appeals” means a rule adopted by any of those courts under statutory authority;

(6) “unsworn declaration” means an unsworn declaration made in accordance with Tex. Civ. Prac. & Rem. Code § 132.001; and

(7) a reference to any kind of written material or any other medium includes electronically stored information.

Notes and Comments

Comment to 1998: “Criminal proceedings” rather than “criminal cases” is used since that was the terminology used in the prior Rules of Criminal Evidence. In subpart (b), the reference to “trials before magistrates” comes from prior Criminal Rule 1101(a). In the prior Criminal Rules, both Rule 101 and Rule 1101 dealt with the same thing – the applicability of the rules. Thus, Rules 101(c) and (d) have been written to incorporate the provisions of former Criminal Rule 1101 and that rule is omitted.

Comment to 2015 Restyling: The reference to “hierarchical governance” in former Rule 101(c) has been deleted as unnecessary. The textual limitation of former Rule 101(c) to criminal cases has been eliminated. Courts in civil cases must also admit or exclude evidence when required to do so by constitutional or statutory provisions or other rules that take precedence over these rules. Likewise, the title to former Rule 101(d) has been changed to more accurately indicate the purpose and scope of the subdivision.

Rule 102. Purpose

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection. When the court hears a party’s objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court must allow a party to make an offer of proof as soon as practicable. In a jury trial, the court must allow a party to make the offer outside the jury’s presence and before the court reads its charge to the jury. At a party’s request, the court must direct that an offer of proof be made in question-and-answer form. Or the court may do so on its own.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) Taking Notice of Fundamental Error in Criminal Cases. In criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved.

Notes and Comments

Comment to 1998 change: The exception to the requirement of an offer of proof for matters that were apparent from the context within which questions were asked, found in paragraph (a)(2), is now applicable to civil as well as criminal cases.

Rule 104. Preliminary Questions

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession in a criminal case;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

(d) Cross-Examining a Defendant in a Criminal Case. By testifying outside the jury’s hearing on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

Rule 105. Evidence That Is Not Admissible Against Other Parties or for Other Purposes

(a) Limiting Admitted Evidence. If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on request, must restrict the evidence to its proper scope and instruct the jury accordingly.

(b) Preserving a Claim of Error.

(1) Court Admits the Evidence Without Restriction. A party may claim error in a ruling to admit evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—only if the party requests the court to restrict the evidence to its proper scope and instruct the jury accordingly.

(2) Court Excludes the Evidence. A party may claim error in a ruling to exclude evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—only if the party limits its offer to the party against whom or the purpose for which the evidence is admissible.

Rule 106. Remainder of or Related Writings or Recorded Statements

If a party introduces all or part of a writing or recorded statement, an adverse party may introduce, at that time, any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. “Writing or recorded statement” includes depositions.

Rule 107. Rule of Optional Completeness

If a party introduces part of an act, declaration, conversation, writing, or recorded statement, an adverse party may inquire into any other part on the same subject. An adverse party may also introduce any other act, declaration, conversation, writing, or recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponent. “Writing or recorded statement” includes a deposition.

Notes and Comments

Comment to 1998 change: This rule is the former Criminal Rule 107 except that the example regarding “when a letter is read” has been relocated in the rule so as to more accurately indicate the provision it explains. While this rule appeared only in the prior criminal rules, it is made applicable to civil cases because it accurately reflects the common law rule of optional completeness in civil cases.

ARTICLE II.

JUDICIAL NOTICE

Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(c) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

(d) Timing. The court may take judicial notice at any stage of the proceeding.

(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

Rule 202. Judicial Notice of Other States’ Law

(a) Scope. This rule governs judicial notice of another state’s, territory’s, or federal jurisdiction’s:

• Constitution;
• public statutes;
• rules;
• regulations;
• ordinances;
• court decisions; and
• common law.

(b) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

(c) Notice and Opportunity to Be Heard.

(1) Notice. The court may require a party requesting judicial notice to notify all other parties of the request so they may respond to it.

(2) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the matter to be noticed. If the court takes judicial notice before a party has been notified, the party, on request, is still entitled to be heard.

(d) Timing. The court may take judicial notice at any stage of the proceeding.

(e) Determination and Review. The court—not the jury—must determine the law of another state, territory, or federal jurisdiction. The court’s determination must be treated as a ruling on a question of law.

Rule 203. Determining Foreign Law

(a) Raising a Foreign Law Issue. A party who intends to raise an issue about a foreign country’s law must:

(1) give reasonable notice by a pleading or other writing; and

(2) at least 30 days before trial, supply all parties a copy of any written materials or sources the party intends to use to prove the foreign law.

(b) Translations. If the materials or sources were originally written in a language other than English, the party intending to rely on them must, at least 30 days before trial, supply all parties both a copy of the foreign language text and an English translation.

(c) Materials the Court May Consider; Notice. In determining foreign law, the court may consider any material or source, whether or not admissible. If the court considers any material or source not submitted by a party, it must give all parties notice and a reasonable opportunity to comment and submit additional materials.

(d) Determination and Review. The court—not the jury—must determine foreign law. The court’s determination must be treated as a ruling on a question of law.

(e) Suits Brought Under the Family Code Involving a Marriage Relationship or Parent- Child Relationship. Subsections (a) and (b) of this rule do not apply to an action to which Rule 308b, Texas Rules of Civil Procedure, applies.

Rule 204. Judicial Notice of Texas Municipal and County Ordinances, Texas Register Contents, and Published Agency Rules

(a) Scope. This rule governs judicial notice of Texas municipal and county ordinances, the contents of the Texas Register, and agency rules published in the Texas Administrative Code.

(b) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

(c) Notice and Opportunity to Be Heard.

(1) Notice. The court may require a party requesting judicial notice to notify all other parties of the request so they may respond to it.

(2) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the matter to be noticed. If the court takes judicial notice before a party has been notified, the party, on request, is still entitled to be heard.

(d) Determination and Review. The court—not the jury—must determine municipal and county ordinances, the contents of the Texas Register, and published agency rules. The court’s determination must be treated as a ruling on a question of law.

ARTICLE III.

PRESUMPTIONS

[No rules adopted at this time.]

ARTICLE IV.

RELEVANCE AND ITS LIMITS

Rule 401. Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

• the United States or Texas Constitution;
• a statute;
• these rules; or
• other rules prescribed under statutory authority.

Irrelevant evidence is not admissible.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.

Rule 404. Character Evidence; Crimes or Other Acts

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for an Accused.

(A) In a criminal case, a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

(B) In a civil case, a party accused of conduct involving moral turpitude may offer evidence of the party’s pertinent trait, and if the evidence is admitted, the accusing party may offer evidence to rebut it.

(3) Exceptions for a Victim.

(A) In a criminal case, subject to the limitations in Rule 412, a defendant may offer evidence of a victim’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

(B) In a homicide case, the prosecutor may offer evidence of the victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(C) In a civil case, a party accused of assaultive conduct may offer evidence of the victim’s trait of violence to prove self-defense, and if the evidence is admitted, the accusing party may offer evidence of the victim’s trait of peacefulness.

(4) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

(5) Definition of “Victim.” In this rule, “victim” includes an alleged victim.

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief.

Rule 405. Methods of Proving Character

(a) By Reputation or Opinion.

(1) In General. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, inquiry may be made into relevant specific instances of the person’s conduct.

(2) Accused’s Character in a Criminal Case. In the guilt stage of a criminal case, a witness may testify to the defendant’s character or character trait only if, before the day of the offense, the witness was familiar with the defendant’s reputation or the facts or information that form the basis of the witness’s opinion.

(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Rule 406. Habit; Routine Practice

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Rule 407. Subsequent Remedial Measures; Notification of Defect

(a) Subsequent Remedial Measures. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;

• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.

(b) Notification of Defect. A manufacturer’s written notification to a purchaser of a defect in one of its products is admissible against the manufacturer to prove the defect.

Comment to 2015 Restyling: Rule 407 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc.

Rule 408. Compromise Offers and Negotiations

(a) Prohibited Uses. Evidence of the following is not admissible either to prove or disprove the validity or amount of a disputed claim:

(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made during compromise negotiations about the claim.

(b) Permissible Uses. The court may admit this evidence for another purpose, such as proving a party’s or witness’s bias, prejudice, or interest, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Comment to 2015 Restyling: Rule 408 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc.

The reference to “liability” has been deleted on the ground that the deletion makes the Rule flow better and easier to read, and because “liability” is covered by the broader term “validity.” Courts have not made substantive decisions on the basis of any distinction between validity and liability. No change in current practice or in the coverage of the Rule is intended.

Finally, the sentence of the Rule referring to evidence “otherwise discoverable” has been deleted as superfluous. The intent of the sentence was to prevent a party from trying to immunize admissible information, such as a pre-existing document, through the pretense of disclosing it during compromise negotiations. But even without the sentence, the Rule cannot be read to protect pre-existing information simply because it was presented to the adversary in compromise negotiations.

Rule 409. Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Rule 410. Pleas, Plea Discussions, and Related Statements

(a) Prohibited Uses in Civil Cases. In a civil case, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later- withdrawn guilty plea.

(b) Prohibited Uses in Criminal Cases. In a criminal case, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea that was later withdrawn;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty or nolo contendere plea or they resulted in a later-withdrawn guilty or nolo contendere plea.

(c) Exception. In a civil case, the court may admit a statement described in paragraph (a)(3) or (4) and in a criminal case, the court may admit a statement described in paragraph (b)(3) or (4), when another statement made during the same plea or plea discussions has been introduced and in fairness the statements ought to be considered together.

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or, if disputed, proving agency, ownership, or control.

Rule 412. Evidence of Previous Sexual Conduct in Criminal Cases

(a) In General. The following evidence is not admissible in a prosecution for sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault:

(1) reputation or opinion evidence of a victim’s past sexual behavior; or

(2) specific instances of a victim’s past sexual behavior.

(b) Exceptions for Specific Instances. Evidence of specific instances of a victim’s past sexual behavior is admissible if:

(1) the court admits the evidence in accordance with subdivisions (c) and (d);

(2) the evidence:

(A) is necessary to rebut or explain scientific or medical evidence offered by the prosecutor;

(B) concerns past sexual behavior with the defendant and is offered by the defendant to prove consent;

(C) relates to the victim’s motive or bias;

(D) is admissible under Rule 609; or

(E) is constitutionally required to be admitted; and

(3) the probative value of the evidence outweighs the danger of unfair prejudice.

(c) Procedure for Offering Evidence. Before offering any evidence of the victim’s past sexual behavior, the defendant must inform the court outside the jury’s presence. The court

must then conduct an in camera hearing, recorded by a court reporter, and determine whether the proposed evidence is admissible. The defendant may not refer to any evidence ruled inadmissible without first requesting and gaining the court’s approval outside the jury’s presence.

(d) Record Sealed. The court must preserve the record of the in camera hearing, under seal, as part of the record.

(e) Definition of “Victim.” In this rule, “victim” includes an alleged victim.

ARTICLE V.

PRIVILEGES

Rule 501. Privileges in General

Unless a Constitution, a statute, or these or other rules prescribed under statutory authority provide otherwise, no person has a privilege to:

(a) refuse to be a witness;

(b) refuse to disclose any matter;

(c) refuse to produce any object or writing; or

(d) prevent another from being a witness, disclosing any matter, or producing any object or writing.

Rule 502. Required Reports Privileged By Statute

(a) In General. If a law requiring a return or report to be made so provides:

(1) a person, corporation, association, or other organization or entity—whether public or private—that makes the required return or report has a privilege to refuse to disclose it and to prevent any other person from disclosing it; and

(2) a public officer or agency to whom the return or report must be made has a privilege to refuse to disclose it.

(b) Exceptions. This privilege does not apply in an action involving perjury, false statements, fraud in the return or report, or other failure to comply with the law in question.

Rule 503. Lawyer–Client Privilege

(a) Definitions. In this rule:

(1) A “client” is a person, public officer, or corporation, association, or other organization or entity—whether public or private—that:

(A) is rendered professional legal services by a lawyer; or

(B) consults a lawyer with a view to obtaining professional legal services from the lawyer.

(2) A “client’s representative” is:

(A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered; or

(B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client.

(3) A “lawyer” is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation.

(4) A “lawyer’s representative” is:

(A) one employed by the lawyer to assist in the rendition of professional legal services; or

(B) an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services.

(5) A communication is “confidential” if not intended to be disclosed to third persons other than those:

(A) to whom disclosure is made to further the rendition of professional legal services to the client; or

(B) reasonably necessary to transmit the communication.

(b) Rules of Privilege.

(1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client:

(A) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative;

(B) between the client’s lawyer and the lawyer’s representative;

(C) by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing another party in a pending action or that lawyer’s representative, if the communications concern a matter of common interest in the pending action;

(D) between the client’s representatives or between the client and the client’s representative; or

(E) among lawyers and their representatives representing the same client.

(2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney– client relationship.

(c) Who May Claim. The privilege may be claimed by:

(1) the client;

(2) the client’s guardian or conservator;

(3) a deceased client’s personal representative; or

(4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity—whether or not in existence.

The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim the privilege on the client’s behalf—and is presumed to have authority to do so.

(d) Exceptions. This privilege does not apply:

(1) Furtherance of Crime or Fraud. If the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

(2) Claimants Through Same Deceased Client. If the communication is relevant to an issue between parties claiming through the same deceased client.

(3) Breach of Duty By a Lawyer or Client. If the communication is relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer.

(4) Document Attested By a Lawyer. If the communication is relevant to an issue concerning an attested document to which the lawyer is an attesting witness.

(5) Joint Clients. If the communication:

(A) is offered in an action between clients who retained or consulted a lawyer in common;

(B) was made by any of the clients to the lawyer; and

(C) is relevant to a matter of common interest between the clients.

Notes and Comments

Comment to 1998 change: The addition of subsection (a)(2)(B) adopts a subject matter test for the privilege of an entity, in place of the control group test previously used. See National Tank Co. v. Brotherton , 851 S.W.2d 193, 197-198 (Tex. 1993).

Rule 504. Spousal Privileges

(a) Confidential Communication Privilege.

(1) Definition. A communication is “confidential” if a person makes it privately to the person’s spouse and does not intend its disclosure to any other person.

(2) General Rule. A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made to the person’s spouse while they were married. This privilege survives termination of the marriage.

(3) Who May Claim. The privilege may be claimed by:

(A) the communicating spouse;

(B) the guardian of a communicating spouse who is incompetent; or

(C) the personal representative of a communicating spouse who is deceased.

The other spouse may claim the privilege on the communicating spouse’s behalf— and is presumed to have authority to do so.

(4) Exceptions. This privilege does not apply:

(A) Furtherance of Crime or Fraud. If the communication is made—wholly or partially—to enable or aid anyone to commit or plan to commit a crime or fraud.

(B) Proceeding Between Spouse and Other Spouse or Claimant Through Deceased Spouse. In a civil proceeding:

(i) brought by or on behalf of one spouse against the other; or

(ii) between a surviving spouse and a person claiming through the deceased spouse.

(C) Crime Against Family, Spouse, Household Member, or Minor Child. In a:

(i) proceeding in which a party is accused of conduct that, if proved, is a crime against the person of the other spouse, any member of the household of either spouse, or any minor child; or

(ii) criminal proceeding involving a charge of bigamy under Section 25.01 of the Penal Code.

(D) Commitment or Similar Proceeding. In a proceeding to commit either spouse or otherwise to place the spouse or the spouse’s property under another’s control because of a mental or physical condition.

(E) Proceeding to Establish Competence. In a proceeding brought by or on behalf of either spouse to establish competence.

(b) Privilege Not to Testify in a Criminal Case.

(1) General Rule. In a criminal case, an accused’s spouse has a privilege not to be called to testify for the state. But this rule neither prohibits a spouse from testifying voluntarily for the state nor gives a spouse a privilege to refuse to be called to testify for the accused.

(2) Failure to Call Spouse. If other evidence indicates that the accused’s spouse could testify to relevant matters, an accused’s failure to call the spouse to testify is a proper subject of comment by counsel.

(3) Who May Claim. The privilege not to testify may be claimed by the accused’s spouse or the spouse’s guardian or representative, but not by the accused.

(4) Exceptions. This privilege does not apply:

(A) Certain Criminal Proceedings. In a criminal proceeding in which a spouse is charged with:

(i) a crime against the other spouse, any member of the household of either spouse, or any minor child; or

(ii) bigamy under Section 25.01 of the Penal Code.

(B) Matters That Occurred Before the Marriage. If the spouse is called to testify about matters that occurred before the marriage.

Notes and Comments

Comment to 1998 change: The rule eliminates the spousal testimonial privilege for prosecutions in which the testifying spouse is the alleged victim of a crime by the accused. This is intended to be consistent with Code of Criminal Procedure article 38.10, effective September 1, 1995.

Comment to 2015 Restyling: Previously, Rule 504(b)(1) provided that, “A spouse who testifies on behalf of an accused is subject to cross-examination as provided in Rule 611(b).” That sentence was included in the original version of Rule 504 when the Texas Rules of Criminal Evidence were promulgated in 1986 and changed the rule to a testimonial privilege held by the witness spouse. Until then, a spouse was deemed incompetent to testify against his or her defendant spouse, and when a spouse testified on behalf of a defendant spouse, the state was limited to cross-examining the spouse about matters relating to the spouse’s direct testimony. The quoted sentence from the original Criminal Rule 504(b) was designed to overturn this limitation and allow the state to cross-examine a testifying spouse in the same manner as any other witness. More than twenty-five years later, it is clear that a spouse who testifies either for or against a defendant spouse may be cross-examined in the same manner as any other witness. Therefore, the continued inclusion in the rule of a provision that refers only to the cross-examination of a spouse who testifies on behalf of the accused is more confusing than helpful. Its deletion is designed to clarify the rule and does not change existing law.

Rule 505. Privilege For Communications to a Clergy Member

(a) Definitions. In this rule:

(1) A “clergy member” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or someone whom a communicant reasonably believes is a clergy member.

(2) A “communicant” is a person who consults a clergy member in the clergy member’s professional capacity as a spiritual adviser.

(3) A communication is “confidential” if made privately and not intended for further disclosure except to other persons present to further the purpose of the communication.

(b) General Rule. A communicant has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication by the communicant to a clergy member in the clergy member’s professional capacity as spiritual adviser.

(c) Who May Claim. The privilege may be claimed by:

(1) the communicant;

(2) the communicant’s guardian or conservator; or

(3) a deceased communicant’s personal representative.

The clergy member to whom the communication was made may claim the privilege on the communicant’s behalf—and is presumed to have authority to do so.

Rule 506. Political Vote Privilege

A person has a privilege to refuse to disclose the person’s vote at a political election conducted by secret ballot unless the vote was cast illegally.

Rule 507. Trade Secrets Privilege

(a) General Rule. A person has a privilege to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, unless the court finds that nondisclosure will tend to conceal fraud or otherwise work injustice.

(b) Who May Claim. The privilege may be claimed by the person who owns the trade secret or the person’s agent or employee.

(c) Protective Measure. If a court orders a person to disclose a trade secret, it must take any protective measure required by the interests of the privilege holder and the parties and to further justice.

Rule 508. Informer’s Identity Privilege

(a) General Rule. The United States, a state, or a subdivision of either has a privilege to refuse to disclose a person’s identity if:

(1) the person has furnished information to a law enforcement officer or a member of a legislative committee or its staff conducting an investigation of a possible violation of law; and

(2) the information relates to or assists in the investigation.

(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the informer furnished the information. The court in a criminal case must reject the privilege claim if the state objects.

(c) Exceptions.

(1) Voluntary Disclosure; Informer a Witness. This privilege does not apply if:

(A) the informer’s identity or the informer’s interest in the communication’s subject matter has been disclosed—by a privilege holder or the informer’s own action—to a person who would have cause to resent the communication; or

(B) the informer appears as a witness for the public entity.

(2) Testimony About the Merits.

(A) Criminal Case. In a criminal case, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence. If the court so finds and the public entity elects not to disclose the informer’s identity:

(i) on the defendant’s motion, the court must dismiss the charges to which the testimony would relate; or

(ii) on its own motion, the court may dismiss the charges to which the testimony would relate.

(B) Certain Civil Cases. In a civil case in which the public entity is a party, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of a material issue on the merits. If the court so finds and the public entity elects not to disclose the informer’s identity, the court may make any order that justice requires.

(C) Procedures.

(i) If it appears that an informer may be able to give the testimony required to invoke this exception and the public entity claims the privilege, the court must give the public entity an opportunity to show in camera facts relevant to determining whether this exception is met. The showing should ordinarily be made by affidavits, but the court may take testimony if it finds the matter cannot be satisfactorily resolved by affidavits.

(ii) No counsel or party may attend the in camera showing.

(iii) The court must seal and preserve for appeal evidence submitted under this subparagraph (2)(C). The evidence must not otherwise be revealed without the public entity’s consent.

(3) Legality of Obtaining Evidence.

(A) Court May Order Disclosure. The court may order the public entity to disclose an informer’s identity if:

(i) information from an informer is relied on to establish the legality of the means by which evidence was obtained; and

(ii) the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible.

(B) Procedures.

(i) On the public entity’s request, the court must order the disclosure be made in camera.

(ii) No counsel or party may attend the in camera disclosure.

(iii) If the informer’s identity is disclosed in camera, the court must seal and preserve for appeal the record of the in camera proceeding. The record of the in camera proceeding must not otherwise be revealed without the public entity’s consent.

Rule 509. Physician–Patient Privilege

(a) Definitions. In this rule:

(1) A “patient” is a person who consults or is seen by a physician for medical care.

(2) A “physician” is a person licensed, or who the patient reasonably believes is licensed, to practice medicine in any state or nation.

(3) A communication is “confidential” if not intended to be disclosed to third persons other than those:

(A) present to further the patient’s interest in the consultation, examination, or interview;

(B) reasonably necessary to transmit the communication; or