CHAPTER 18. EVIDENCE
CIVIL PRACTICE AND REMEDIES CODE
TITLE 2. TRIAL, JUDGMENT, AND APPEAL
SUBTITLE B. TRIAL MATTERS
CHAPTER 18. EVIDENCE
SUBCHAPTER A. DOCUMENTARY EVIDENCE
Sec. 18.001. AFFIDAVIT CONCERNING COST AND NECESSITY OF
SERVICES. (a) This section applies to civil actions only, but
not to an action on a sworn account.
(b) Unless a controverting affidavit is filed as provided by
this section, an affidavit that the amount a person charged for a
service was reasonable at the time and place that the service was
provided and that the service was necessary is sufficient
evidence to support a finding of fact by judge or jury that the
amount charged was reasonable or that the service was necessary.
(c) The affidavit must:
(1) be taken before an officer with authority to administer
oaths;
(2) be made by:
(A) the person who provided the service; or
(B) the person in charge of records showing the service provided
and charge made; and
(3) include an itemized statement of the service and charge.
(d) The party offering the affidavit in evidence or the party's
attorney must serve a copy of the affidavit on each other party
to the case at least 30 days before the day on which evidence is
first presented at the trial of the case.
(e) A party intending to controvert a claim reflected by the
affidavit must serve a copy of the counteraffidavit on each other
party or the party's attorney of record:
(1) not later than:
(A) 30 days after the day the party receives a copy of the
affidavit; and
(B) at least 14 days before the day on which evidence is first
presented at the trial of the case; or
(2) with leave of the court, at any time before the commencement
of evidence at trial.
(f) The counteraffidavit must give reasonable notice of the
basis on which the party serving it intends at trial to
controvert the claim reflected by the initial affidavit and must
be taken before a person authorized to administer oaths. The
counteraffidavit must be made by a person who is qualified, by
knowledge, skill, experience, training, education, or other
expertise, to testify in contravention of all or part of any of
the matters contained in the initial affidavit.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by Acts 1987, 70th Leg., ch. 167, Sec. 3.04(a), eff.
Sept. 1, 1987.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
978, Sec. 1, eff. September 1, 2007.
Sec. 18.002. FORM OF AFFIDAVIT. (a) An affidavit concerning
cost and necessity of services by the person who provided the
service is sufficient if it follows the following form:
No. ___________________
John Doe
)
IN THE _______
(Name of Plaintiff)
)
COURT IN AND FOR
v.
)
_________ COUNTY,
John Roe
)
TEXAS
(Name of Defendant)
)
AFFIDAVIT
Before me, the undersigned authority, personally appeared
__________(NAME OF AFFIANT)__________, who, being by me duly
sworn, deposed as follows:
My name is __________(NAME OF AFFIANT)__________. I am of sound
mind and capable of making this affidavit.
On __________(DATE)__________, I provided a service to
__________(NAME OF PERSON WHO RECEIVED SERVICE)__________. An
itemized statement of the service and the charge for the service
is attached to this affidavit and is a part of this affidavit.
The service I provided was necessary and the amount that I
charged for the service was reasonable at the time and place that
the service was provided.
________________________________
Affiant
SWORN TO AND SUBSCRIBED before me on the __________ day of
__________, 19___.
My commission expires:
______________________
________________________________
Notary Public, State of Texas
Notary's printed name:
________________________________
(b) An affidavit concerning cost and necessity of services by
the person who is in charge of records showing the service
provided and the charge made is sufficient if it follows the
following form:
No. ___________________
John Doe
)
IN THE _______
(Name of Plaintiff)
)
COURT IN AND FOR
v.
)
_________ COUNTY,
John Roe
)
TEXAS
(Name of Defendant)
)
AFFIDAVIT
Before me, the undersigned authority, personally appeared
______(NAME OF AFFIANT)______, who, being by me duly sworn,
deposed as follows:
My name is __________(NAME OF AFFIANT)__________. I am of sound
mind and capable of making this affidavit.
I am the person in charge of records of __________(PERSON WHO
PROVIDED THE SERVICE)__________. Attached to this affidavit are
records that provide an itemized statement of the service and the
charge for the service that __________(PERSON WHO PROVIDED THE
SERVICE)__________ provided to __________ (PERSON WHO RECEIVED
THE SERVICE)__________ on __________(DATE)__________. The
attached records are a part of this affidavit.
The attached records are kept by me in the regular course of
business. The information contained in the records was
transmitted to me in the regular course of business by
__________(PERSON WHO PROVIDED THE SERVICE)__________ or an
employee or representative of __________(PERSON WHO PROVIDED THE
SERVICE)__________ who had personal knowledge of the information.
The records were made at or near the time or reasonably soon
after the time that the service was provided. The records are the
original or an exact duplicate of the original.
The service provided was necessary and the amount charged for the
service was reasonable at the time and place that the service was
provided.
________________________________
Affiant
SWORN TO AND SUBSCRIBED before me on the __________ day of
__________, 19___.
My commission expires:
______________________
________________________________
Notary Public, State of Texas
Notary's printed name:
________________________________
(c) The form of an affidavit provided by this section is not
exclusive and an affidavit that substantially complies with
Section 18.001 is sufficient.
Added by Acts 1993, 73rd Leg., ch. 248, Sec. 1, eff. Aug. 30,
1993.
SUBCHAPTER B. PRESUMPTIONS
Sec. 18.031. FOREIGN INTEREST RATE. Unless the interest rate of
another state or country is alleged and proved, the rate is
presumed to be the same as that established by law in this state
and interest at that rate may be recovered without allegation or
proof.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 18.032. TRAFFIC CONTROL DEVICE PRESUMED TO BE LAWFUL. (a)
In a civil case, proof of the existence of a traffic control
device on or alongside a public thoroughfare by a party is prima
facie proof of all facts necessary to prove the proper and lawful
installation of the device at that place, including proof of
competent authority and an ordinance by a municipality or order
by the commissioners court of a county.
(b) Proof of the existence of a one-way street sign is prima
facie proof that the public thoroughfare on or alongside which
the sign is placed was designated by proper and competent
authority to be a one-way thoroughfare allowing traffic to go
only in the direction indicated by the sign.
(c) In this section, "traffic control device" includes a control
light, stop sign, and one-way street sign.
(d) Any party may rebut the prima facie proof established under
this section.
Added by Acts 1995, 74th Leg., ch. 165, Sec. 2, eff. Sept. 1,
1995.
Sec. 18.033. STATE LAND RECORDS. (a) In a dispute between the
State of Texas and an upland owner of property fronting on the
Gulf of Mexico and the arms of the Gulf of Mexico within the
boundaries of the State of Texas, the maps, surveys, and property
descriptions filed in the General Land Office in connection with
any conveyance by the state or any predecessor government by
patent, deed, lease, or other authorized forms of grant shall be
presumed to accurately depict the boundary between adjacent
upland owners and the state-owned submerged lands.
(b) This presumption applies only to those surveys conducted by
a surveyor duly appointed, elected, or licensed, and qualified.
(c) This presumption may be overcome only on a showing of clear
and convincing evidence that the boundary as described and
depicted in the archives of the General Land Office is erroneous.
Added by Acts 2003, 78th Leg., ch. 148, Sec. 1, eff. September 1,
2003.
SUBCHAPTER C. ADMISSIBILITY
Sec. 18.061. COMMUNICATIONS OF SYMPATHY. (a) A court in a
civil action may not admit a communication that:
(1) expresses sympathy or a general sense of benevolence
relating to the pain, suffering, or death of an individual
involved in an accident;
(2) is made to the individual or a person related to the
individual within the second degree by consanguinity or affinity,
as determined under Subchapter B, Chapter 573, Government Code;
and
(3) is offered to prove liability of the communicator in
relation to the individual.
(b) In this section, "communication" means:
(1) a statement;
(2) a writing; or
(3) a gesture that conveys a sense of compassion or
commiseration emanating from humane impulses.
(c) Notwithstanding the provisions of Subsections (a) and (b), a
communication, including an excited utterance as defined by Rule
803(2) of the Texas Rules of Evidence, which also includes a
statement or statements concerning negligence or culpable conduct
pertaining to an accident or event, is admissible to prove
liability of the communicator.
Added by Acts 1999, 76th Leg., ch. 673, Sec. 1, eff. Sept. 1,
1999.
Sec. 18.062. CERTAIN INFORMATION RELATING TO IDENTITY THEFT.
(a) Except as provided by Subsection (b), a business record is
not admissible in a civil action if the business record is
provided to law enforcement personnel in connection with an
investigation of an alleged violation of Section 32.51, Penal
Code (fraudulent use or possession of identifying information).
(b) A business record described by Subsection (a) is admissible
if the party offering the record has obtained the record from a
source other than law enforcement personnel.
Added by Acts 2005, 79th Leg., Ch.
1059, Sec. 1, eff. June 18, 2005.
SUBCHAPTER D. CERTAIN LOSSES
Sec. 18.091. PROOF OF CERTAIN LOSSES; JURY INSTRUCTION. (a)
Notwithstanding any other law, if any claimant seeks recovery for
loss of earnings, loss of earning capacity, loss of contributions
of a pecuniary value, or loss of inheritance, evidence to prove
the loss must be presented in the form of a net loss after
reduction for income tax payments or unpaid tax liability
pursuant to any federal income tax law.
(b) If any claimant seeks recovery for loss of earnings, loss of
earning capacity, loss of contributions of a pecuniary value, or
loss of inheritance, the court shall instruct the jury as to
whether any recovery for compensatory damages sought by the
claimant is subject to federal or state income taxes.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 13.09, eff. Sept. 1,
2003.