(a) Confidential Communication Privilege.
(1) Definition. A communication is “confidential” if a person makes it privately to the person’s spouse and does not intend its disclosure to any other person.
(2) General Rule. 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 survives termination of the marriage.
(3) Who May Claim. The privilege may be claimed by:
(A) the communicating spouse;
(B) the guardian of a communicating spouse who is incompetent; or
(C) the personal representative of a communicating spouse who is deceased.
The other spouse may claim the privilege on the communicating spouse’s behalf—and is presumed to have authority to do so.
(4) Exceptions. This privilege does not apply:
(A) Furtherance of Crime or Fraud. If the communication is made—wholly or partially—to enable or aid anyone to commit or plan to commit a crime or fraud.
(B) Proceeding Between Spouse and Other Spouse or Claimant Through Deceased Spouse. In a civil proceeding:
(i) brought by or on behalf of one spouse against the other; or
(ii) between a surviving spouse and a person claiming through the deceased spouse.
(C) Crime Against Family, Spouse, Household Member, or Minor Child. In a:
(i) proceeding in which a party is accused of conduct that, if proved, is a crime against the person of the other spouse, any member of the household of either spouse, or any minor child; or
(ii) criminal proceeding involving a charge of bigamy under Section 25.01 of the Penal Code.
(D) Commitment or Similar Proceeding. In a proceeding to commit either spouse or otherwise to place the spouse or the spouse’s property under another’s control because of a mental or physical condition.
(E) Proceeding to Establish Competence. In a proceeding brought by or on behalf of either spouse to establish competence.
(b) Privilege Not to Testify in a Criminal Case.
(1) General Rule. In a criminal case, an accused’s spouse has a privilege not to be called to testify for the state. But this rule neither prohibits a spouse from testifying voluntarily for the state nor gives a spouse a privilege to refuse to be called to testify for the accused.
(2) Failure to Call Spouse. If other evidence indicates that the accused’s spouse could testify to relevant matters, an accused’s failure to call the spouse to testify is a proper subject of comment by counsel.
(3) Who May Claim. The privilege not to testify may be claimed by the accused’s spouse or the spouse’s guardian or representative, but not by the accused.
(4) Exceptions. This privilege does not apply:
(A) Certain Criminal Proceedings. In a criminal proceeding in which a spouse is charged with:
(i) a crime against the other spouse, any member of the household of either spouse, or any minor child; or
(ii) bigamy under Section 25.01 of the Penal Code.
(B) Matters That Occurred Before the Marriage. If the spouse is called to testify about matters that occurred before the marriage.
Notes and Comments
Comment to 1998 change: The rule eliminates the spousal testimonial privilege for prosecutions in which the testifying spouse is the alleged victim of a crime by the accused. This is intended to be consistent with Code of Criminal Procedure article 38.10, effective September 1, 1995.
Comment to 2015 Restyling: Previously, Rule 504(b)(1) provided that, “A spouse who testifies on behalf of an accused is subject to cross-examination as provided in Rule 611(b).” That sentence was included in the original version of Rule 504 when the Texas Rules of Criminal Evidence were promulgated in 1986 and changed the rule to a testimonial privilege held by the witness spouse. Until then, a spouse was deemed incompetent to testify against his or her defendant spouse, and when a spouse testified on behalf of a defendant spouse, the state was limited to cross-examining the spouse about matters relating to the spouse’s direct testimony. The quoted sentence from the original Criminal Rule 504(b) was designed to overturn this limitation and allow the state to cross-examine a testifying spouse in the same manner as any other witness. More than twenty-five years later, it is clear that a spouse who testifies either for or against a defendant spouse may be cross-examined in the same manner as any other witness. Therefore, the continued inclusion in the rule of a provision that refers only to the cross-examination of a spouse who testifies on behalf of the accused is more confusing than helpful. Its deletion is designed to clarify the rule and does not change existing law.