Someone said something important about your case. You have a text message repeating what another person said. A witness wants to testify about a conversation that happened months ago. Can that evidence be used in a Texas court?
The answer often depends on one of the most frequently misunderstood rules of evidence: hearsay.
People sometimes use the word “hearsay” to mean any statement made outside the courtroom. That is not the legal definition. An out-of-court statement is not automatically inadmissible, and some statements that appear to be hearsay may be admissible because they are not offered for their truth or because a specific exception applies.
Understanding that distinction can be extremely important in Texas civil, family, probate, and other litigation.
What Is Hearsay Under Texas Law?
Texas Rule of Evidence 801(d) defines hearsay as a statement that:
“(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.”
In simpler terms, hearsay generally involves an out-of-court statement offered to prove that what the statement says is actually true.
Consider this example:
A witness testifies:
“John told me that the traffic light was red.”
If the testimony is offered to prove that the traffic light really was red, John's statement may be hearsay.
But that does not end the analysis.
The same statement might be admissible if it is offered for another relevant purpose, and even a statement that qualifies as hearsay may sometimes be admitted under a recognized exception.
The Most Important Hearsay Question: Why Is the Statement Being Offered?
One of the biggest misconceptions about hearsay is that the analysis depends entirely on where the statement was made.
It does not.
The purpose for which the evidence is offered is critical.
Suppose a landlord receives a text message stating:
“There is water pouring through the ceiling.”
If a tenant offers the message solely to prove that water actually was pouring through the ceiling, the statement may raise a hearsay issue.
But suppose the tenant instead offers the message to establish that the landlord received notice of a reported problem before allegedly failing to act.
In that situation, the significance of the message may be that it was communicated to the landlord—not necessarily that every factual assertion in the message was true.
That distinction can change the hearsay analysis entirely.
What Counts as a “Statement”?
Under Texas Rule of Evidence 801, a statement can include more than spoken words.
A statement can include:
- an oral expression;
- a written expression; or
- nonverbal conduct intended as a substitute for verbal expression.
That means hearsay issues can arise from emails, text messages, letters, social-media messages, written records, recorded conversations, and other forms of communication.
Importantly, however, the fact that something appears in writing does not automatically make it admissible.
A text message can contain hearsay just as easily as oral testimony can.
Why Is Hearsay Generally Inadmissible?
Texas Rule of Evidence 802 generally prohibits hearsay unless another rule, statute, or applicable provision permits its admission.
One reason for the hearsay rule is that courtroom testimony ordinarily can be tested.
A witness can be questioned about what the witness saw, heard, remembered, or meant. The opposing side can cross-examine that witness and expose inconsistencies, faulty memory, lack of personal knowledge, or other weaknesses.
When a witness simply repeats someone else's statement, the original speaker may not be available for that testing.
But the hearsay rule is not absolute. The Texas Rules of Evidence recognize numerous situations in which an out-of-court statement may nevertheless be admissible.
Are Statements Made by the Other Party Hearsay?
Often, no.
Texas Rule of Evidence 801(e)(2) addresses statements offered against an opposing party. Subject to the requirements of the rule, this can include a statement:
- made by the opposing party;
- adopted or believed to be true by the opposing party;
- made by someone authorized by the party to speak on the subject;
- made by an agent or employee concerning a matter within the scope of that relationship while it existed; or
- made by a coconspirator during and in furtherance of the conspiracy.
This rule is enormously important in litigation.
For example, assume a defendant sends the plaintiff a text stating:
“I know I still owe you the $15,000. I just don't have it right now.”
If the plaintiff offers that statement against the defendant, the defendant ordinarily cannot exclude it merely by saying, “That's hearsay because I said it outside court.”
The hearsay rules specifically address statements of an opposing party.
Are a Witness's Prior Statements Hearsay?
Sometimes—and sometimes not.
Rule 801(e)(1) provides that certain prior statements are not hearsay when the declarant testifies and is subject to cross-examination about the prior statement.
Depending on the circumstances, this can include certain:
- prior inconsistent statements;
- prior consistent statements; and
- prior identifications.
The precise requirements matter. A prior inconsistent statement, for example, does not automatically become substantive evidence merely because a witness previously told a different story.
Common Hearsay Exceptions in Texas
Even when a statement actually is hearsay, Rule 803 contains numerous exceptions.
Several commonly encountered exceptions include the following.
Present Sense Impression — Rule 803(1)
A present sense impression is generally a statement describing or explaining an event or condition made while the declarant was perceiving it or immediately afterward.
For example:
“That truck is coming into our lane.”
The timing of the statement is important because the exception is based in part on the statement's close connection to what the speaker was perceiving.
Excited Utterance — Rule 803(2)
An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by that event or condition.
A statement does not qualify merely because the speaker was emotional. Courts consider the circumstances surrounding the statement and whether the declarant remained under the stress of the event.
Then-Existing Mental, Emotional, or Physical Condition — Rule 803(3)
Certain statements concerning a person's then-existing state of mind, emotional condition, sensation, or physical condition may qualify for this exception.
This rule can become important when a person's intent, plan, motive, emotional state, or physical condition is relevant to a disputed issue.
Statements Made for Medical Diagnosis or Treatment — Rule 803(4)
Certain statements made for—and reasonably pertinent to—medical diagnosis or treatment may be admissible under Rule 803(4).
Depending on the circumstances, this can include descriptions of medical history, symptoms, pain, sensations, or the inception or general character of the cause or external source of a condition.
Recorded Recollection — Rule 803(5)
A record concerning a matter a witness once knew about but can no longer recall well enough to testify fully and accurately may qualify under the recorded-recollection exception if the rule's requirements are satisfied.
This is different from simply introducing any old note or written statement.
Business Records — Rule 803(6)
The business-records exception is among the most important hearsay exceptions in civil litigation.
Records of a regularly conducted activity may be admissible when the requirements of Rule 803(6) are established.
Examples can include:
- account records;
- invoices;
- payment histories;
- medical records;
- transaction records; and
- other records maintained in the regular course of an organization's activities.
But calling a document a “business record” does not automatically make it admissible. The necessary foundation and other evidentiary requirements still matter.
Public Records — Rule 803(8)
Certain records or statements of public offices may qualify under the public-records exception.
Again, the rule contains requirements and limitations. The mere fact that a document was created by or obtained from a government agency does not eliminate every possible evidentiary objection.
Statements Against Interest — Rule 803(24)
Texas Rule of Evidence 803(24) recognizes an exception for certain statements against the declarant's interest.
Broadly speaking, this concerns a statement that a reasonable person in the declarant's position would have made only if the person believed it to be true because the statement was sufficiently contrary to the declarant's interest or exposed the declarant to specified adverse consequences.
This is different from an opposing party's statement under Rule 801(e)(2).
A party's own statement offered against that party does not have to be against the party's interest when originally made merely to qualify under Rule 801(e)(2).
What If the Person Who Made the Statement Is Unavailable?
Rule 804 contains additional hearsay exceptions that depend upon the declarant being unavailable as a witness.
“Unavailable” has a specific legal meaning. Depending on the circumstances, it can include situations involving privilege, refusal to testify despite a court order, lack of memory, death or qualifying illness, or an inability to procure the declarant's attendance or testimony despite the efforts required by the rule.
Exceptions under Rule 804 include certain former testimony and statements made under the belief of imminent death.
Because these exceptions have additional requirements, a party generally cannot establish admissibility merely by asserting that the original speaker will not be at trial.
What About Text Messages, Emails, and Social Media?
Electronic communications create hearsay questions constantly.
Suppose a party wants to introduce a text-message conversation.
Several separate evidentiary questions may arise:
- Can the messages be authenticated?
- Who made each statement?
- Is a particular statement being offered for its truth?
- Is it a statement of an opposing party?
- Does a hearsay exception apply?
- Does the conversation contain hearsay within hearsay?
The last question is particularly important.
Imagine a text message that says:
“Maria told me yesterday that the contractor admitted he never obtained the permit.”
That single text potentially contains multiple layers of statements. Rule 805 addresses this problem—often called hearsay within hearsay. Each part of the combined statements generally must conform to an applicable hearsay exception or exclusion.
Is a Police Report or Medical Record Automatically Admissible?
No.
Records can present multiple evidentiary issues.
Even when a document itself qualifies under the business-records or public-records exception, statements contained inside that document can create separate hearsay problems.
For example, a medical record might satisfy the requirements for admission as a business record while also containing a statement attributed to a third party. Whether that embedded statement is admissible can require a separate analysis.
The same general problem can arise with incident reports, investigative records, company files, and other documents.
What Does “Effect on the Listener” Mean?
A statement offered to show its effect on the person who heard it may not be offered for the truth of what it asserts.
Consider this example:
“The customer told the store manager that the floor was wet.”
Suppose the issue is whether the store had notice of a potentially dangerous condition.
The statement might be relevant because the manager received the warning, regardless of whether the customer's description was ultimately accurate.
This is why lawyers and judges frequently ask not simply, “Was this said outside court?” but rather:
“What is this statement being offered to prove?”
That question is often the heart of the hearsay analysis.
Can You Object Simply by Saying “Hearsay”?
At trial, hearsay objections can become more complicated than the familiar television version of a lawyer standing up and saying, “Objection—hearsay.”
The court may need to determine:
- exactly which statement is challenged;
- what the statement is being offered to prove;
- whether it actually satisfies the definition of hearsay;
- whether Rule 801 excludes it from the hearsay definition;
- whether an exception under Rule 803 or Rule 804 applies;
- whether the evidence contains multiple layers of hearsay; and
- whether some other evidentiary rule independently affects admissibility.
Evidence can also be admissible for one purpose but not another.
A Simple Way to Analyze Hearsay in a Texas Case
When evaluating a potential hearsay problem, it helps to ask four questions:
First: What exactly is the statement?
Identify the words, writing, or communicative conduct at issue.
Second: Who made it?
That person is the declarant.
Third: Why is the statement being offered?
If it is not being offered to prove the truth of the matter asserted, it may not be hearsay in the first place.
Fourth: If it is hearsay, does an exclusion or exception apply?
That requires examining Rules 801, 803, 804, and any other applicable authority.
This framework is much more useful than assuming that every statement made outside a courtroom is automatically inadmissible.
The Bottom Line on Hearsay in Texas
Hearsay is not simply “something somebody else said.”
Under the Texas Rules of Evidence, the central question is whether an out-of-court statement is being offered to prove the truth of the matter asserted. If it is, the next question is whether the statement falls outside the definition of hearsay or qualifies under a recognized exception.
That distinction matters in virtually every kind of litigation.
Texts, emails, business records, medical records, conversations, admissions, and witness statements may all present hearsay issues—but their admissibility depends on what the evidence is, who made the statement, why it is being offered, and which evidentiary rules apply.
For litigants, the practical lesson is simple: do not assume that important evidence can—or cannot—be used merely because someone made the statement outside court. Hearsay analysis is highly dependent on the purpose for which the evidence is offered and the circumstances surrounding the statement.
This article provides general information about Texas evidence law and is not legal advice. Evidentiary rulings depend on the particular facts, purpose for which evidence is offered, and applicable law in each case.
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.
