The New Rule on Business Record Affidavits

Click here to download the form I have prepared in response to the amendment of Tex. R. Evid. 902(10) on business record affidavits. In my last edition, I attached a link to a draft version of the rule, rather than the official version of this new rule, which became effective on September 1, 2014. I thank Russ Burwell for pointing out that error and I direct you this time to the correct, official, final order adopting this new rule approved August 19, 2014.

Please note, this new rule applies to cases filed on or after September 1, 2014, which means the prior rule requiring affidavits and records to be filed with the clerk, still applies to pending cases. Parties can and should agree in writing not to file the actual records in the pending cases.

Just to be sure, here is the full text of the final rule we now have to comply with:

RULE 902.
SELF-AUTHENTICATION

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(10) Business Records Accompanied by Affidavit.

The original or a copy of a record that meets the requirements of Rule 803(6) or (7), if the record is accompanied by an affidavit that complies with subparagraph (B) of this rule and any other requirements of law, and the record and affidavit are served in accordance with subparagraph (A). For good cause shown, the court may order that a business record be treated as presumptively authentic even if the proponent fails to comply with subparagraph (A).

(A) Service Requirement. The proponent of a record must serve the record and the accompanying affidavit on each other party to the case at least 14 days before trial. The record and affidavit may be served by any method permitted by Rule of Civil Procedure 21a.

(B) Form of affidavit. An affidavit is sufficient if it includes the following language, but this form is not exclusive:

1. I am the custodian of records [or I am an employee or owner] of __________ and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities.

2. Attached are ____ pages of records. These are the original records or exact duplicates of the original records.

3. The records were made at or near the time of each act, event, condition, opinion, or diagnosis set forth. [or It is the regular practice of __________ to make this type of record at or near the time of each act, event, condition, opinion, or diagnosis set forth in the record.]

4. The records were made by, or from information transmitted by, persons with knowledge of the matters set forth. [or It is the regular practice of __________ for this type of record to be made by, or from information transmitted by, persons with knowledge of the matters set forth in them.]

5. The records were kept in the course of regularly conducted business activity. [or It is the regular practice of __________ to keep this type of record in the course of regularly conducted business activity.]

The official comment to this new rule states:

Comment to 2014 Change: At the direction of the Legislature, the requirement that records be filed with the court before trial has been removed. See Act of May 17, 2013, 83rd Leg., R.S., ch. 560, § 3, 2013 Tex. Gen. Laws 1509, 1510 (SB 679). The word “affidavit” in this rule includes an unsworn declaration made under penalty of perjury. TEX. CIV. PRAC. & REM. CODE § 132.001. The reference to “any other requirements of law” incorporates the requirements of Sections 18.001 and 18.002 of the Civil Practice and Remedies Code for affidavits offered as prima facie proof of the cost or necessity of services or medical expenses. The form medical expenses affidavit that was added to this rule in 2013 has been removed as unnecessary. It can now be found in Section 18.002(b-1) of the Civil Practice and Remedies Code.