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CHAPTER 18. EVIDENCE

SUBCHAPTER A. DOCUMENTARY EVIDENCE

§ 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 file the affidavit with the clerk of the court and 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 file a counteraffidavit with the clerk of the court and 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 he 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 filing 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, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 3.04(a), eff. Sept. 1, 1987.

§ 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

(Name of Plaintiff)

v.

John Roe

(Name of Defendant)
) IN THE ____________

) COURT IN AND FOR

) ___________ COUNTY,

) TEXAS

)

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

(Name of Plaintiff)

v.

John Roe

(Name of Defendant)
) IN THE ____________

) COURT IN AND FOR

) ___________ COUNTY,

) TEXAS

)

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, § 1, eff. Aug. 30, 1993.

SUBCHAPTER B. PRESUMPTIONS

§ 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, § 1, eff. Sept. 1, 1985.

§ 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, § 2, eff. Sept. 1, 1995.

SUBCHAPTER C. ADMISSIBILITY

§ 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, § 1, eff. Sept. 1, 1999.

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