In trials, it’s important to object to the submission of certain records by the other side that haven’t been “authenticated.” These records include business records that meet the definition of Texas Rule of Evidence 803(6), and can include credit card statements, cardholder agreements, bank account agreements and so forth. The easy way to avoid this objection is to show that the records have been authenticated by means of a business records affidavit that complies of Texas Rule of Evidence 902(10). What often happens is people tender an affidavit that either completely tracks Rule 902(10) form affidavit (found in Tex. R. Evid. § 902(10)(B)) or basically tracks the Rule (“substantially conforms” or “substantially complies” per court jargon). These affidavits, however, are missing some basic language long held as required in all affidavits by the Supreme Court of Texas, since at least 1887. These requirements are to disclose that the contents are “true” and “within the personal knowledge” of the affiant. So a Rule 902(10) affidavit should always contain these disclosures and also meet the other basics of the Rule to get the business records to survive the hearsay objection.
I will call these requirements that affidavits represent that their contents be “true” and “within the personal knowledge” of the affiant as the “dual requisites”. In this article, I will describe Rule 902(10) (governing the affidavit to authenticate business records), Rule 803(6) (governing business records), Texas case law laying out the dual requisites, and some arguments regarding the Rules that you might hear at trial about the affidavit requisites.
My recent trial
At a recent trial, I argued for the exclusion of purported business records because the affidavit lacked one of the dual requisites – a disclosure that the contents are true. The plaintiff creditor argued that the records’ accompanying affidavit complied with Rule 902(10) by tracking the form affidavit in that Rule, and thus the records should be admitted as authenticated to support recovery on multiple theories, including breach of contract, account stated and open account. This response reflected a confusion as to the purpose and language of the Rule.
I want to explore this because it’s important for debtors and creditors to understand. If debtors understand it, they can tank bad affidavits in court. If creditors understand it, they can debtor-proof their affidavits.
What does Rule 902(10) do?
Texas Rule of Evidence 803 states that certain evidence is “excluded by the rule against hearsay, regardless of whether the declarant is available as a witness.” Rule 803(6) governs “[a] record of an act, event, condition, opinion or diagnosis if” it meets five requirements. A “business” is any “business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” Id.
Rule 902 is a “self-authenticating evidence” rule, meaning that the usual process of authenticating records sought to be admitted as evidence can be shortcut by complying with the Rule. Evidence in general needs to be authenticated before it can be admitted; that is, admissibility of evidence is conditioned on authentication of the evidence. Tex. R. Evid. § 901(a).
Rule 902(10) says “business records” under Rule 803(6) and 803(7) that accompany an affidavit compliant with both Rule 902(10)(B) “and any other requirements of law” and served together with such affidavit per Rule 902(10)(A) will be considered self-authenticated. The Rule further adds that provided “good cause” is shown, the court can simply order the business record as “presumptively authentic” even if the affidavit is not compliant with Rule 902(10)(A) (the service requirement), but it does not say the Court can do this if the affidavit is not compliant with Rule 902(10)(B) or if it fails to meet “any other requirements of law.”
The Rule says that “[a]n affidavit is sufficient if it includes the [Rule’s form] language, but this form is not exclusive,” and provides for an alternative to an affidavit (unsworn declaration made under penalty of perjury). The proposed form’s only factual recitals are 1) that the affiant is a custodian of records familiar with the manner in which the records are created and maintained thanks to the custodian’s job duties, and 2) that a certain number of pages of records are attached which are originals or duplicates of the originals that meet the business records requisites of Rule 803(6).
It is silent about the dual requisites but because the Rule refers “other requirements of law,” we must keep our eye on these dual requisites in the background.
Texas law requires that all affidavits recite that the facts disclosed are true and within affiant’s personal knowledge
Affidavits have dual requisites in Texas law. See Humphreys v. Caldwell, 888 S.W.2d 469 (Tex. 1994). Humphreys required that any affidavit submitted to support a factual claim of some sort contain both a recital that its contents are within the personal knowledge of the affiant and that the recitals within the affidavit were true.
“An affidavit which does not positively and unqualifiedly represent the facts as disclosed in the affidavit  to be true and  within the affiant’s personal knowledge is legally insufficient.” Id. at 470, citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) and Burke v. Satterfeld, 525 S.W.2d 950, 955 (Tex. 1975).
This case has not been vacated or abrogated by statutory law.
The affidavits involved in Humphreys were discovery affidavits to support a claim of privilege to avoid discovery pursuant to Rule 166b(4). Id.
The Brownlee case involved a summary judgment affidavit which the Court found to be legally insufficient because, “[u]nless authorized by statute, an affidavit is insufficient unless the allegations contained therein are direct and unequivocal and perjury can be assigned upon it.” Brownlee, 665 S.W.2d at 112, citing Burke, 525 S.W.2d at 950. Because the affidavit failed to “unqualifiedly represent the ‘facts’ as disclosed in the affidavit to be true and within [the affiant’s] personal knowledge, it was insufficient as a matter of law.” Id.
The above excerpt from Brownlee is a quotation of Burke, even if not attributed in the case; the Burke passage further cites to multiple 20th century Texas cases. See Burke, 525 S.W.2d at 955, citing Spinks v. Matthews, 80 Tex. 373, 15 S.W. 1101 (1891) and Graham v. McCarty, 69 Tex. 323, 7 S.W. 342 (1887). The Burke affidavit was a probate accounting affidavit; it proclaimed that the “‘allegations set out thereunder and same are true and correct to the best of [the affiant’s] knowledge.’” Id. The Court found that such an allegation did “not appear to positively and unqualifiedly represent the facts as disclosed to be true and within the personal knowledge of the affiant.” Id. The Court thus equates the “positive and unqualified” representation that could have perjury “assigned upon it” to one that proclaims the contents of the affidavit “to be true. This line of case law applied to three distinct areas of law – summary judgment, discovery and probate proceedings, and was worded in a general sense in each case so as to apply to all affidavits.
Thus, it appears to be that Texas law since at least the late 1800s has required that affidavits, without qualification and unless excepted by statute, proclaim that their containments be both true and within the personal knowledge of the affiant. Rule 902(10) affidavits must contain certain types of facts according to the Rule (or not, since the form is not exclusive). The facts in the propounded form include 1) that the affiant is a custodian of records for a certain party, 2) that the records meet the Rule 803(6) requisites, and 3) that a certain number of records is attached to the affidavit. It would seem odd for any affidavit not meeting these simple basics are ever held as “valid” by courts. And yet, guess what? Courts bend over backwards to find Rule 902(10) is met in all kinds of apparently, grotesquely deficient affidavits. (I’ll discuss case law in another post. None of the opinions ever dig into the truth requisite, and many opinions, especially in Houston simply hold that tracking Rule 902(10) is good enough for the affidavit. It might be no one is arguing the dual requisites like I would for appeal.)
The Rule 902(10) form affidavit does not recite the dual requisites, but case law needs them. The affidavit would be invalid without them. It seems that the only way for an affidavit to escape this burden is to meet a statutory exception as articulated in the case law above, or for there to be a hard court ruling that such is not required for Rule 902(10) affidavits. I have found no such statutory exception and no such case law.
The text of Rule 902(10) does not minimize the dual requirements
Remember, Rule 902(10) simply declares the requisites of the business records affidavit is sufficient for purposes of authenticating business records. It does not say that the dual requisites are done away with or not necessary for the affidavit’s validity. The chapeau of Rule 902 says: “The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted.” Rule 902(10) furthermore states that the affidavit accompanying the Rule 803(6) business record must comport with “subparagraph (B) of this rule and any other requirements of law” to meet the self-authenticating exception.
The other requirements of law are the dual requisites. The business records affidavit would be invalid without these dual requisites, but must contain the Rule 902(10)(B) requisites in order to achieve the more limited function of authenticating the business records.
Is a business records affidavit under Rule 902(10) the type of affidavit addressed by this line of case law?
The line of case law above does not appear to care about the particular contents of the affidavit; all affidavits need to meet the dual requisite unless specifically excepted by statute. See Brownlee, 665 S.W.2d at 112, citing Burke, 525 S.W.2d at 950. Even a business records affidavit should comply with the dual requisites.
A creditor might also point out that Rule 902 effectively supplanted, abrogated or otherwise “repealed” such case law. I disagree.
Texas Government Code § 22.004 provides various laws regarding the Supreme Court of Texas’s “rulemaking power in the practice and procedure in civil actions, except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant.” Id. at § 22.004(a). Any “rule adopted by the supreme court repeals all conflicting laws and parts of laws governing practice and procedure in civil actions, but substantive law is not repealed.” So the thinking would go from a creditor: the Court’s rules repeal any conflicting procedural rule, including those governing affidavits.
But is common law governing affidavit contents the type of law that this Code provision says a Rule could replace? I didn’t find a definition of “law” in the Government Code. It probably doesn’t include common law, but only “official” law like legislation. Case law is never repealed; it is overturned or abrogated or preempted by legislation or rulemaking. If the legislature had meant that the rulemaking procedure should go so far as to overturn case law now over 100 years old, it could have said so.
A second response would dig into the history of the promulgation of the Rules, but I haven’t done that so I’m not going to play with this response much. I will note that while I haven’t discovered when TRCP 902(10) was promulgated, even if I could a big issue would remain: the Rule definitely came into existence after the 19th century decisions where the affidavit’s dual requisites were (at a minimum) first pronounced. The Supreme Court made reference to the Rule in at least 1998 in a miscellaneous order related to the Harris County local rules. The Federal analog was adopted in 1975, it appears, if not 1944. (Again, haven’t got a copy of Vernon’s laying about). And case law has been made since at least 1944 pertaining to this exact Rule. I would wager a lot of money that the Supreme Court of Texas did not intend by adopting these Rules to repeal its line of case law governing affidavits in general.
Thus it appears that the only argument remaining to plaintiffs to avoid including the dual requisites is that the Rule is itself a statutory exception. But I don’t think it is because statutes aren’t rules.
Is Rule 902(10) a statute such that it could grant a statutory exception to the dual requisites? Doesn’t look like it.
Rule 902(10) is a Texas Rule of Civil Procedure. Is a Rule of Civil Procedure a “statute” that could except the dual requisites? The Rules themselves refer to “statutes” as distinct from the Rules in multiple places. See Tex. R. Civ. P 2 (“Where any statute . . . prescribed a rule of procedure . . . different from these Rules, and not included in the ‘List of Repealed States,’ such statute shall apply”); id. at R. 4 (“In computing any period of time prescribed or allowed by these rules . . . or by any applicable statute. . .”); id. at R. 18a(i) (authorizing Chief Justice of Supreme Court of Texas to assign judges and issue orders “permitted by this rule or pursuant to statute”) and so on. There is a peculiar Rule whose header appears to equate the Rules to “other statutes” – see Rule 110 – but the body of the Rule continues the distinction between statute and the Rules: “Where by statute or these rules citation by publication is authorized, and the statute or rules do not specify the requisites of such citation . . . the provision of these rules shall govern.”
For non-textual evidence, Black’s Law defines a statute as an act embodying or expressing the will of the Legislature, and not the judiciary. Furthermore, the Supreme Court does not issue statutes; it issues Rules.
In short, I do not find a statutory exception carving out the requisites or Rule 902(10) from the Supreme Court of Texas’s century-old case law governing the dual requisites.
Rule 902(10) provides a cheap mechanism to authenticate business records so witnesses don’t have to show up at trial to establish their authenticity. The Rule spells out the basics of a form affidavit to get through this little hurdle. The Rule does not say that simply following the form will result in admission of the records, but will merely solve the authenticity issue (which is tied to the hearsay problem). Finally, the Rule does not say that following the form affidavit is all you need to do for the affidavit to be authorized; in fact, the Rule says you need to follow other requirements of law. These other requirements of law are articulated in ancient case law. This case law has not been overturned or otherwise abrogated by any law. It is still the law of the land.
So, creditors, if you’re trying to submit a Rule 902(10) affidavit for a business records authentication tactic, you need to make sure you meet the dual requisites, which are not described in the form affidavit; you need to add it in. Debtors, if you come across a Rule 902(10) affidavit like commonly seen in credit card cases, point this argument out to the court in a well-briefed format.
What follows are some bullshit notes I had in the original article that I just want as a postscript now. I think they’re all incorporated in the article above.
Some extraneous observations I won’t bother
Key observations about Rule 902(10)
1) Silent about representing that the affidavit’s contents are true and within personal knowledge of affiant. What Rule 902(10) does not say is anything about requiring a representation that the disclosures within the affidavit be within the affiant’s “personal knowledge” or true (or otherwise assignable with perjury). This is germane because Texas case law requires that affidavits generally contain these representations unless a statutory exception applies. What Rule 902(10) does say is that the affidavit accompanying the business records you seek to have treated as self-authenticating must track the proposed form laid out in Rule 902(10)(B) “and any other requirements of law.” These other requirements of law are the dual requisites.
2) The form is not exclusive to be “sufficient” to meet the business records affidavit exception. Note the recital in the Rule that the form propounded is “not exclusive.” This has been held to mean that courts can review affidavits that don’t track the Rule’s language for a “sufficient” affidavit and if the affidavits “substantially conform” to the Rule, then it’s okay. (Personally, I read this Rule as simply saying that the affidavit “form is not exclusive” because “an unsworn declaration made under penalty of perjury” can suffice.)
3) The affidavit may be “sufficient” for the job it seeks to do, but it probably needs to contain the two required disclosures that the contents are both true and in personal knowledge of affiant. It is further noteworthy that the alternative to the form affidavit is a declaration made “under penalty of perjury” – nothing in this particular affidavit on its face is made under penalty of perjury, or otherwise purports to declare its contents to be true. I find this important for the following discussion.
With these notes and basics of the Rules in mind, let’s move to the Texas case law.