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  • Writer's pictureBrian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 101

Updated: May 31, 2023

Conroe Criminal Defense Lawyer Brian Foley discusses Texas Rule of Evidence 101

This is the first installation of a blog series on the Texas Rules of Evidence. Today's rule is Rule 101.

Rule 101 is the first rule in the Texas Rules of Evidence which are modeled after the Federal Rules of Evidence, which were in turn created from the Common Law. Rule 101 defines how the rules may be cited, when the rules apply, and carves out exemptions for Constitutional conflicts both at the United State's Supreme Court level and the Texas level.

Some of the notable exceptions to when the rules of evidence do not apply in court are questions on the admissibility of evidence. These types of hearings are called suppression hearings and are brought by a party that seeks to exclude certain pieces of evidence or statements from a trial.

For example you may request that blood results in a DWI case be suppressed from evidence because the procedures used to test the blood were not in accordance with the rules about scientific evidence found later in the 700s section of the Texas Rules of Evidence.

Rule 101 exempts the rules from applying at these hearings other than the rules related to privileges like Attorney Client privilege.

Grand Jury proceedings also are not bound by the rules of evidence. Some people find it surprising that the group of citizens assembled and presented to by the District Attorney's Office are allowed to see evidence that a jury at a trial would never get to see. The proceedings of a Grand Jury are Secret and defense lawyers are not allowed inside even if their client has chosen to testify. An attorney may wait outside the grand jury room and advise his client while taking a break and if the client leaves the grand jury room.

Rule 101. Title, Scope, and Applicability of the Rules; Definitions

(a) Title. These rules may be cited as the Texas Rules of Evidence.

(b) Scope. These rules apply to proceedings in Texas courts except as otherwise provided in subdivisions (d)-(f).

(c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.

(d) Exception for Constitutional or Statutory Provisions or Other Rules. Despite these rules, a court must admit or exclude evidence if required to do so by the United States or Texas Constitution, a federal or Texas statute, or a rule prescribed by the United States or Texas Supreme Court or the Texas Court of Criminal Appeals. If possible, a court should resolve by reasonable construction any inconsistency between these rules and applicable constitutional or statutory provisions or other rules.

(e) Exceptions. These rules—except for those on privilege—do not apply to:

(1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;

(2) grand jury proceedings; and

(3) the following miscellaneous proceedings:

(A) an application for habeas corpus in extradition, rendition, or interstate detainer proceedings;

(B) an inquiry by the court under Code of Criminal Procedure article 46B.004 to determine whether evidence exists that would support a finding that the defendant may be incompetent to stand trial;

(C) bail proceedings other than hearings to deny, revoke, or increase bail;

(D) hearings on justification for pretrial detention not involving bail;

(E) proceedings to issue a search or arrest warrant; and

(F) direct contempt determination proceedings.

(f) Exception for Justice Court Cases. These rules do not apply to justice court cases except as authorized by Texas Rule of Civil Procedure 500.3. 5

(g) Exception for Military Justice Hearings. The Texas Code of Military Justice, Tex. Gov’t Code §§ 432.001-432.195, governs the admissibility of evidence in hearings held under that Code.

(h) Definitions. In these rules:

(1) “civil case” means a civil action or proceeding;

(2) “criminal case” means a criminal action or proceeding, including an examining trial;

(3) “public office” includes a public agency;

(4) “record” includes a memorandum, report, or data compilation;

(5) a “rule prescribed by the United States or Texas Supreme Court or the Texas Court of Criminal Appeals” means a rule adopted by any of those courts under statutory authority;

(6) “unsworn declaration” means an unsworn declaration made in accordance with Tex. Civ. Prac. & Rem. Code § 132.001; and

(7) a reference to any kind of written material or any other medium includes electronically stored information. Comment to 2015 Restyling: The reference to “hierarchical governance” in former Rule 101(c) has been deleted as unnecessary. The textual limitation of former Rule 101(c) to criminal cases has been eliminated. Courts in civil cases must also admit or exclude evidence when required to do so by constitutional or statutory provisions or other rules that take precedence over these rules. Likewise, the title to former Rule 101(d) has been changed to more accurately indicate the purpose and scope of the subdivision.

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