2009 Texas Code
CIVIL PRACTICE AND REMEDIES CODE
TITLE 2. TRIAL, JUDGMENT, AND APPEAL
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.