If you are involved in a lawsuit or criminal case in Texas, can your husband or wife be forced to testify against you?
The answer is sometimes—but not always.
Texas law recognizes two different spousal privileges under Texas Rule of Evidence 504. One protects certain confidential communications made during a marriage. The other, which applies only in criminal cases, generally protects the accused's spouse from being called as a witness for the State.
These rules are easy to confuse. They also contain important exceptions. Being married does not create a blanket rule preventing one spouse from testifying about the other.
Understanding the difference can matter in criminal cases, civil litigation, probate disputes, fraud cases, and other proceedings involving communications between spouses.
What Is Spousal Privilege in Texas?
Texas Rule of Evidence 504 actually contains two separate privileges:
- The confidential marital communications privilege under Rule 504(a); and
- The spousal testimonial privilege in criminal cases under Rule 504(b).
The distinction matters because the two privileges protect different things, apply in different circumstances, and belong to different people.
1. Confidential Communications Between Spouses — Texas Rule of Evidence 504(a)
Rule 504(a)(2) provides:
“A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made to the person’s spouse while they were married.”
This privilege can apply in both civil and criminal proceedings, subject to the exceptions contained in the rule.
The focus is not simply on whether the witness is married to a party. Instead, the question is whether the evidence would reveal a confidential communication made to a spouse during the marriage.
What Is a “Confidential” Marital Communication?
Rule 504(a)(1) defines a communication as confidential when a person makes it privately to the person's spouse and does not intend disclosure to anyone else.
Common examples potentially include:
- A private conversation between spouses;
- A private text message sent from one spouse to another;
- An email intended only for the other spouse; or
- Another communication made privately during the marriage.
The Texas Court of Criminal Appeals and Texas appellate courts have recognized that communications lose their confidential character when circumstances demonstrate that they were not intended to remain private.
That means the mere fact that a husband and wife communicated does not automatically make the communication privileged.
Are Text Messages Between Spouses Privileged in Texas?
Potentially.
A text message can qualify as a confidential marital communication if it was made privately to a spouse during the marriage and was not intended to be disclosed to someone else.
But a party asserting the privilege still must establish that its requirements are satisfied. Texas appellate courts have rejected privilege arguments when the party asserting the privilege failed to establish that the communications were intended to remain private.
This distinction can become particularly important during discovery, when a party seeks text messages, emails, or other electronic communications between spouses.
Does Spousal Privilege Continue After Divorce?
The confidential-communications privilege can survive divorce.
Rule 504(a)(2) expressly states:
“This privilege survives termination of the marriage.”
Thus, divorcing your spouse does not automatically make previously protected marital communications discoverable or admissible.
The important date is generally when the communication occurred. A confidential communication made while the parties were married may remain protected after the marriage ends.
However, that does not mean former spouses can never testify against each other. The privilege protects qualifying confidential communications—not every fact a spouse learned during the marriage—and the rule contains significant exceptions.
An Important Exception: Lawsuits Between Spouses
One of the most important limitations is particularly relevant to family-law cases.
Under Rule 504(a)(4)(B), the confidential-communications privilege does not apply in a civil proceeding:
- Brought by or on behalf of one spouse against the other; or
- Between a surviving spouse and a person claiming through a deceased spouse.
This means a spouse generally cannot use Rule 504(a) as a universal shield for marital communications in litigation directly between the spouses.
That distinction is crucial in divorce and related civil litigation.
What About Probate and Estate Litigation?
The rule also contains an important exception involving deceased spouses.
In a civil proceeding between a surviving spouse and someone claiming through the deceased spouse, the confidential-communications privilege does not apply.
Accordingly, lawyers and litigants should not simply assume that a conversation with a deceased spouse is protected in a will contest, inheritance dispute, or other probate proceeding.
The precise parties, claims, communication, and applicable exception all matter.
The Crime-or-Fraud Exception
Rule 504(a) also contains a significant crime-or-fraud exception.
The privilege does not apply when the communication was made, wholly or partially, to enable or aid anyone to commit or plan to commit a crime or fraud.
For example, a private conversation between spouses about ordinary household finances presents a very different privilege question from a communication made for the purpose of planning a fraudulent transaction.
The fact that spouses discussed alleged wrongdoing does not by itself resolve the issue. The language and purpose of the communication matter.
Crimes Against a Spouse, Household Member, or Minor Child
Rule 504 also limits the privilege in proceedings involving certain crimes against family or household members.
Under Rule 504(a)(4)(C), the confidential-communications privilege does not apply in specified proceedings in which a party is accused of conduct that, if proved, would constitute a crime against:
- The other spouse;
- A member of either spouse's household; or
- A minor child.
The rule also contains an exception for criminal proceedings involving a bigamy charge.
These exceptions prevent marital privilege from operating as an absolute evidentiary barrier in the proceedings identified by the rule.
2. Spousal Testimonial Privilege in Texas Criminal Cases — Rule 504(b)
The second privilege is fundamentally different.
Rule 504(b)(1) provides:
“In a criminal case, an accused’s spouse has a privilege not to be called to testify for the state.”
This privilege applies specifically to criminal cases.
Most importantly, the privilege belongs to the witness-spouse, not the criminal defendant.
The accused cannot simply prohibit a willing spouse from testifying for the prosecution under this provision. Rule 504 expressly states that the spouse may voluntarily testify for the State.
That makes Texas spousal testimonial privilege very different from a blanket rule that “your spouse cannot testify against you.”
Can the Defendant's Spouse Refuse to Testify for the Defense?
Rule 504(b)'s testimonial privilege is specifically a privilege not to be called for the State.
It is therefore not a general privilege allowing a spouse to refuse to provide favorable testimony when called by the accused merely because the witness is married to the defendant.
Confidential marital communications can present a separate Rule 504(a) issue, but the two privileges should not be confused.
Exceptions to the Criminal Spousal Testimonial Privilege
The testimonial privilege also has important exceptions.
Among other circumstances, Rule 504(b) does not apply when the spouse is called to testify about matters that occurred before the marriage.
That prevents someone from creating testimonial privilege over earlier events simply by marrying a potential witness.
The rule also contains exceptions involving specified offenses against a spouse, household member, or minor child, as well as certain other criminal proceedings identified in Rule 504.
Does Spousal Privilege Protect Conduct a Spouse Personally Witnessed?
Not necessarily.
This is another major source of confusion.
The confidential-communications privilege protects communications. It does not automatically prevent a spouse from testifying about every event or act the spouse personally observed.
For example, there can be an important evidentiary distinction between:
- “My husband privately told me that he transferred the money”; and
- “I personally watched my husband transfer the money.”
The first potentially involves a confidential marital communication. The second concerns personally observed conduct.
Texas courts have long distinguished communications from acts when applying marital-communications privilege.
What If Someone Else Heard the Conversation?
Confidentiality is essential.
If spouses speak in front of another person, the communication may not qualify as confidential in the first place. Texas courts have recognized that communications overheard by third persons can lose their confidential character.
Similarly, a communication intended to be relayed to someone else may not satisfy Rule 504(a)'s requirement that the speaker did not intend disclosure to another person.
This makes the factual circumstances surrounding the communication extremely important.
Who Has the Burden of Establishing Spousal Privilege?
A party asserting privilege generally cannot simply announce that a communication was “between spouses” and end the inquiry.
The party seeking the protection of the privilege ordinarily bears the burden of establishing facts showing that the privilege applies.
For confidential marital communications, that may require evidence establishing matters such as:
- The existence of a marriage at the relevant time;
- When the communication occurred;
- Who participated in it;
- Whether it was made privately; and
- Whether it was intended to remain confidential.
Texas appellate courts have applied this principle in disputes involving marital text messages and other communications.
Does Common-Law Marriage Count for Spousal Privilege?
It can, if a legally recognized informal marriage is established.
Texas courts have explained that Rule 504's use of “spouse” requires a marital relationship. A boyfriend, girlfriend, fiancé, or other romantic partner does not become a spouse for privilege purposes merely because the relationship is close or long-term.
When a party relies on an alleged informal marriage, the existence of that marriage can itself become an evidentiary issue.
Why Spousal Privilege Matters in Civil Litigation
Although the testimonial privilege under Rule 504(b) is criminal, the confidential-communications privilege can have major consequences in civil cases.
Suppose litigation concerns business transactions involving one spouse, and the opposing side seeks private messages exchanged between the spouses. Before assuming those communications are discoverable—or assuming that they are automatically protected—the parties should analyze:
- Whether the communication was made during the marriage;
- Whether it was actually confidential;
- Who is asserting the privilege;
- Whether the communication falls within the crime-or-fraud exception;
- Whether the proceeding is between the spouses; and
- Whether another Rule 504 exception applies.
That analysis can affect discovery requests, privilege logs, depositions, motions to compel, and trial evidence.
Five Common Mistakes About Texas Spousal Privilege
Mistake No. 1: “My spouse can never testify against me.”
False. Texas law does not impose a universal prohibition on adverse spousal testimony.
Mistake No. 2: “Everything I tell my spouse is privileged.”
Not necessarily. Rule 504(a) protects qualifying confidential communications, subject to its exceptions.
Mistake No. 3: “If we divorce, the privilege disappears.”
Not necessarily. The confidential-communications privilege expressly survives termination of the marriage for qualifying communications made while the parties were married.
Mistake No. 4: “A spouse can refuse to testify in any type of case.”
No. Rule 504(b)'s testimonial privilege applies in criminal cases and specifically concerns being called as a witness for the State.
Mistake No. 5: “Anything my spouse knows is privileged.”
No. Personal observations, information obtained independently, nonconfidential communications, and communications falling within an exception can present very different evidentiary questions.
Frequently Asked Questions About Texas Spousal Privilege
Can my wife be forced to testify against me in Texas?
Possibly. The answer depends on whether the case is civil or criminal, who is calling the spouse, what testimony is sought, whether it involves confidential marital communications, and whether an exception applies.
Can my husband voluntarily testify against me in a Texas criminal case?
Yes. The testimonial privilege belongs to the witness-spouse. Rule 504(b) does not give the accused an absolute right to prevent a willing spouse from testifying for the State.
Are conversations between husband and wife always confidential?
No. The communication must have been made privately and without an intention that it be disclosed to another person.
Are marital text messages privileged?
They can be, but the party asserting privilege must establish that the requirements of Rule 504 are met. The fact that the participants were married is not enough by itself.
Does marital privilege survive divorce in Texas?
The confidential-communications privilege can. Rule 504(a) expressly states that it survives termination of the marriage. But the rule contains exceptions, including an important exception for certain civil proceedings between spouses.
Can I marry a witness so the witness cannot testify?
Marriage does not retroactively protect matters occurring before the marriage. Rule 504(b) expressly contains an exception for testimony concerning matters that occurred before the marriage.
Practical Considerations in Texas Litigation
Spousal privilege should be addressed early when marital communications may become important evidence.
A lawyer may need to consider:
- Whether discovery requests seek privileged communications;
- Whether a privilege log is appropriate;
- Whether third parties were present;
- Whether electronic communications were intended to remain private;
- Whether an exception under Rule 504 applies;
- Whether the spouse has independent personal knowledge;
- Whether an informal marriage must first be established; and
- Whether other evidence can prove the same facts without relying on a disputed marital communication.
Waiting until trial to address those questions can create serious evidentiary problems.
The Bottom Line
Marriage does not automatically prevent your spouse from testifying against you in Texas.
Instead, Texas Rule of Evidence 504 creates two distinct protections. The confidential marital communications privilege can protect certain private communications made during marriage and can survive divorce. The separate spousal testimonial privilege generally allows the spouse of a criminal defendant to avoid being called as a witness for the State.
Both privileges contain significant limitations and exceptions.
The practical question therefore is not simply, “Can my spouse testify against me?”
The better questions are: What testimony is being sought? Who is calling the spouse? Was the information communicated privately during the marriage? And does one of Rule 504's exceptions apply?
Those distinctions can determine whether important evidence is protected—or admissible in court.
This article provides general information about Texas law and is not legal advice. Privilege questions can depend heavily on the facts of the particular case and the version of the applicable rules and law in effect at the relevant time.
At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.
