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Revamping the Texas Rules of Evidence: Style Over Substance
By: Professor SpearIt

The Texas Rules of Evidence are getting a facelift.  In April 2015, the restyled rules will take effect and provide a cosmetic upgrade to the state’s evidence law.  Although the changes are noteworthy for litigators and judges who have worked under the old styling, young lawyers and future bar takers should also take note of the changes and implications for the profession.

The restyling of the Texas rules follows the revamping of the Federal Rules of Evidence in 2011.  The federal changes aimed to make the rules more understandable by removing archaic language, redundancies, and inconsistencies; it was a mission to simplify.  This revamp inspired Texas to revise its own rules, in large part to keep consistent with federal changes. 

According to the order adopting the restyled rules, the “changes are intended to be stylistic only” rather than substantive.  As such, the drafters aimed for consistent expression and avoided unnecessary word switching; hence, switches between words like “accused” and “defendant,” “party opponent” and “opposing party,” and the various formulations of “action,” “case,” and “proceeding,” are eliminated.  Improvements in formatting give the rules a more statutory look with greater visual appeal.

Despite the focus on style, there are two main substantive changes to the 2015 rules: 

Rule 511, waiver by voluntary disclosure, has been made to align more with Federal Rule 502 on waiver of a privilege by voluntary disclosure. Here, the drafters largely imported provisions from the federal rules that limit waiver of the attorney-client privilege and work product.This copy-and-paste job added several provisions that tripled the length of the original Texas rule.

Rule 613, prior statement of a witness, retains the requirement that a witness be given an opportunity to explain or deny: (a) a prior inconsistent statement or (b) circumstances or a statement showing the witness’s bias or interest.As the drafters make explicit in the comments, this requirement is not a part of the foundation requirement that the examining attorney must lay before introducing extrinsic evidence about the statement.Conveniently, the foundation elements are now outlined under the heading, “Foundation Requirement.”

Without doubt, the restyling makes for greater symmetry between the Texas and federal rules.  The changes should be recognized as an improvement over the status quo since they provide greater consistency and legibility, which is particularly noteworthy for novice lawyers and soon-to-be lawyers.  Newer lawyers, who likely studied the federal rules in law school, will take comfort in the familiarity of the restyling.  For future lawyers, since the Texas Bar tests on both federal and Texas evidence, the changes will make bar study a more cohesive endeavor, especially for those aspiring to practice in state and federal courts.

Professor SpearIt is an associate professor of law at Thurgood Marshall School of Law, Texas Southern University, where he teaches evidence, criminal law, and criminal procedure.