Rules of Evidence Article I. General Provisions 2

(A) one employed by the lawyer to assist the lawyer 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 to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. (b) Rules of Privilege. (1) General rule of privilege. --A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (B) between the lawyer and the lawyer's representative; (C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (D) between representatives of the client or between the client and a representative of the client; or (E) among lawyers and their representatives representing the same client. (c) Who May Claim the Privilege. --The privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client. (d) Exceptions. --There is no privilege under this rule: 13 (1) Furtherance of crime or fraud. --If the services of the lawyer 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. --As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transactions; (3) Breach of duty by a lawyer or client. --As to a communication 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. --As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or (5) Joint clients. --As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients. RULE 504. HUSBAND-WIFE PRIVILEGES [as revised and effective Jan. 1, 2007] (a) Confidential Communication Privilege. (1) Definition. A communication is confidential if it is made privately by any person to the person's spouse and it is not intended for disclosure to any other person. (2) Rule of privilege. A person, whether or not a party, or the guardian or representative of an incompetent or deceased person, has a privilege during marriage and afterwards to refuse to disclose and to prevent another from disclosing a confidential communication made to the person's spouse while they were married. (3) Who may claim the privilege. The confidential communication privilege may be claimed by the person or the person's guardian or representative, or by the spouse on the person's behalf. The authority of the spouse to do so is presumed. (4) Exceptions. There is no confidential communication privilege: (A) Furtherance of crime or fraud. If the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or fraud. 14 (B) Proceeding between spouses in civil cases. In (A) a proceeding brought by or on behalf of one spouse against the other spouse, or (B) a proceeding between a surviving spouse and a person who claims through the deceased spouse, regardless of whether the claim is by testate or intestate succession or by inter vivos transaction. (C) Crime against spouse or minor child. In a proceeding in which the party is accused of conduct which, if proved, is a crime against the person of the spouse, any minor child, or any member of the household of either spouse, or, in a criminal proceeding, when the offense charged is under Section 25.01 Penal Code (Bigamy). (D) Commitment or similar proceeding. In a proceeding to commit either spouse or otherwise to place that person or that person's property, or both, under the control of another because of an alleged 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 Criminal Case. (1) Rule of privilege. In a criminal case, the spouse of the accused has a privilege not to be called as a witness for the state. This rule does not prohibit the spouse from testifying voluntarily for the state, even over objection by the accused. A spouse who testifies on behalf of an accused is subject to cross-examination as provided in rule 611(b). (2) Failure to call as witness. Failure by an accused to call the accused's spouse as a witness, where other evidence indicates that the spouse could testify to relevant matters, is a proper subject of comment by counsel. (3) Who may claim the privilege. The privilege not to testify may be claimed by the person or the person's guardian or representative but not by that person's spouse. (4) Exceptions. The privilege of a person's spouse not to be called as a witness for the state does not apply: (A) Certain criminal proceedings. In any proceeding in which the person is charged with a crime against the person's spouse, a member of the household of either spouse, or any minor, or in an offense charged under Section 25.01, Penal Code (Bigamy). (B) Matters occurring prior to marriage. As to matters occurring prior to the marriage. Rule 505 COMMUNICATIONS TO MEMBERS OF THE CLERGY (a) Definitions. --As used in this rule: 15 (1) A "member of the clergy" is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting with such individual. (2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. (b) General Rule of Privilege. --A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser. (c) Who May Claim the Privilege. --The privilege may be claimed by the person, by the person's guardian or conservator, or by the personal representative of the person if the person is deceased. The member of the clergy to whom the communication was made is presumed to have authority to claim the privilege but only on behalf of the communicant. Rule 506 POLITICAL VOTE Every person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally. Rule 507 TRADE SECRETS A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require. Rule 508 IDENTITY OF INFORMER (a) Rule of Privilege. --The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation. 16 (b) Who May Claim. --The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished, except the privilege shall not be allowed in criminal cases if the state objects. (c) Exceptions. (1) Voluntary disclosure; informer a witness. --No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the public entity. (2) Testimony on merits. --If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present. (3) Legality of obtaining evidence. --If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, it may require the identity of the informer to be disclosed. The court shall, on request of the public entity, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. 17 Rule 509 PHYSICIAN-PATIENT PRIVILEGE (a) Definitions. --As used in this rule: (1) A "patient" means any person who consults or is seen by a physician to receive medical care. (2) A "physician" means a person licensed to practice medicine in any state or nation, or reasonably believed by the patient so to be. (3) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or those reasonably necessary for the transmission of the communication, or those who are participating in the diagnosis and treatment under the direction of the physician, including members of the patient's family. (b) Limited Privilege in Criminal Proceedings. --There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding. (c) General Rule of Privilege in Civil Proceedings. --In a civil proceeding: (1) Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed. (2) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed. (3) The provisions of this rule apply even if the patient received the services of a physician prior to the enactment of the Medical Liability and Insurance Improvement Act, Tex. Rev. Civ. Stat. art. 4590i. (d) Who May Claim the Privilege in a Civil Proceeding. --In a civil proceeding: 18 (1) The privilege of confidentiality may be claimed by the patient or by a representative of the patient acting on the patient's behalf. (2) The physician may claim the privilege of confidentiality, but only on behalf of the patient. The authority to do so is presumed in the absence of evidence to the contrary. (e) Exceptions in a Civil Proceeding. --Exceptions to confidentiality or privilege in administrative proceedings or in civil proceedings in court exist: (1) when the proceedings are brought by the patient against a physician, including but not limited to malpractice proceedings, and in any license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of a physician; (2) when the patient or someone authorized to act on the patient's behalf submits a written consent to the release of any privileged information, as provided in paragraph (f); (3) when the purpose of the proceedings is to substantiate and collect on a claim for medical services rendered to the patient; (4) as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense; (5) in any disciplinary investigation or proceeding of a physician conducted under or pursuant to the Medical Practice Act, Tex. Rev. Civ. Stat. art. 4495b, or of a registered nurse under or pursuant to Tex. Rev. Civ. Stat. arts. 4525, 4527a, 4527b, and 4527c, provided that the board shall protect the identity of any patient whose medical records are examined, except for those patients covered under subparagraph (e)(1) or those patients who have submitted written consent to the release of their medical records as provided by paragraph (f); (6) in an involuntary civil commitment proceeding, proceeding for court-ordered treatment, or probable cause hearing under Tex. Health & Safety Code ch. 462; tit. 7, subtit. C; and tit. 7, subtit. D; (7) in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an "institution" as defined in Tex. Health & Safety Code § 242.002. 19 (f) Consent. (1) Consent for the release of privileged information must be in writing and signed by the patient, or a parent or legal guardian if the patient is a minor, or a legal guardian if the patient has been adjudicated incompetent to manage personal affairs, or an attorney ad litem appointed for the patient, as authorized by Tex. Health & Safety Code tit. 7, subtits. C and D; Tex. Prob. Code ch. V; and Tex. Fam. Code § 107.011; or a personal representative if the patient is deceased, provided that the written consent specifies the following: (A) the information or medical records to be covered by the release; (B) the reasons or purposes for the release; and (C) the person to whom the information is to be released. (2) The patient, or other person authorized to consent, has the right to withdraw consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal. (3) Any person who received information made privileged by this rule may disclose the information to others only to the extent consistent with the authorized purposes for which consent to release the information was obtained. Rule 510 CONFIDENTIALITY OF MENTAL HEALTH INFORMATION IN CIVIL CASES (a) Definitions. --As used in this rule: (1) "Professional" means any person: (A) authorized to practice medicine in any state or nation; (B) licensed or certified by the State of Texas in the diagnosis, evaluation or treatment of any mental or emotional disorder; (C) involved in the treatment or examination of drug abusers; or (D) reasonably believed by the patient to be included in any of the preceding categories. 20 (2) "Patient" means any person who: (A) consults, or is interviewed by, a professional for purposes of diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism and drug addiction; or (B) is being treated voluntarily or being examined for admission to voluntary treatment for drug abuse. (3) A representative of the patient is: (A) any person bearing the written consent of the patient; (B) a parent if the patient is a minor; (C) a guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs; or (D) the patient's personal representative if the patient is deceased. (4) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the diagnosis, examination, evaluation, or treatment, or those reasonably necessary for the transmission of the communication, or those who are participating in the diagnosis, examination, evaluation, or treatment under the direction of the professional, including members of the patient's family. (b) General Rule of Privilege. (1) Communication between a patient and a professional is confidential and shall not be disclosed in civil cases. (2) Records of the identity, diagnosis, evaluation, or treatment of a patient which are created or maintained by a professional are confidential and shall not be disclosed in civil cases. (3) Any person who received information from confidential communications or records as defined herein, other than a representative of the patient acting on the patient's behalf, shall not disclose in civil cases the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. 21 (4) The provisions of this rule apply even if the patient received the services of a professional prior to the enactment of Tex. Rev. Civ. Stat. art. 5561h (Vernon Supp. 1984)(now codified as Tex. Health & Safety Code § § 611.001-611.008). (c) Who May Claim the Privilege. (1) The privilege of confidentiality may be claimed by the patient or by a representative of the patient acting on the patient's behalf. (2) The professional may claim the privilege of confidentiality but only on behalf of the patient. The authority to do so is presumed in the absence of evidence to the contrary. (d) Exceptions. --Exceptions to the privilege in court or administrative proceedings exist: (1) when the proceedings are brought by the patient against a professional, including but not limited to malpractice proceedings, and in any license revocation proceedings in which the patient is a complaining witness and in which disclosure is relevant to the claim or defense of a professional; (2) when the patient waives the right in writing to the privilege of confidentiality of any information, or when a representative of the patient acting on the patient's behalf submits a written waiver to the confidentiality privilege; (3) when the purpose of the proceeding is to substantiate and collect on a claim for mental or emotional health services rendered to the patient; (4) when the judge finds that the patient after having been previously informed that communications would not be privileged, has made communications to a professional in the course of a court-ordered examination relating to the patient's mental or emotional condition or disorder, providing that such communications shall not be privileged only with respect to issues involving the patient's mental or emotional health. On granting of the order, the court, in determining the extent to which any disclosure of all or any part of any communication is necessary, shall impose appropriate safeguards against unauthorized disclosure; (5) as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense; 22 (6) in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an institution as defined in Tex. Health and Safety Code § 242.002. Rule 511 WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE A person upon whom these rules confer a privilege against disclosure waives the privilege if: (1) the person or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged; or (2) the person or a representative of the person calls a person to whom privileged communications have been made to testify as to the person's character or character trait insofar as such communications are relevant to such character or character trait. Rule 512 PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege. Rule 513 COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE; INSTRUCTION (a) Comment or Inference Not Permitted. --Except as permitted in Rule 504(b)(2), the claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel, and no inference may be drawn therefrom. (b) Claiming Privilege Without Knowledge of Jury. --In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury. (c) Claim of Privilege Against Self-Incrimination in Civil Cases. --Paragraphs (a) and (b) shall not apply with respect to a party's claim, in the present civil proceeding, of the privilege against self-incrimination. 23 (d) Jury Instruction. --Except as provided in Rule 504(b)(2) and in paragraph (c) of this Rule, upon request any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom. ARTICLE VI. WITNESSES Rule 601 COMPETENCY AND INCOMPETENCY OF WITNESSES (a) General Rule. --Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules: (1) Insane persons. --Insane persons who, in the opinion of the court, are in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify. (2) Children. --Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated. (b) "Dead Man's Rule" in Civil Actions. --In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement. Except for the foregoing, a witness is not precluded from giving evidence of or concerning any transaction with, any conversations with, any admissions of, or statement by, a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof. The trial court shall, in a proper case, where this rule prohibits an interested party or witness from testifying, instruct the jury that such person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposite party. Rule 602 LACK OF PERSONAL KNOWLEDGE 24