Proposed change to TRE 902(10) (business records)

Posted: May 12, 2014

In response to problems relating to voluminous medical records and medical billing information in civil cases, the Texas Supreme Court has promulgated a potential change to the Texas Rules of Evidence that would impact *all* business records affidavits filed on or after September 1, 2014, including those involving records used in criminal cases. The proposed rule change has been posted in the Texas Bar Journal or can be viewed in this PDF version.

There are three things to note in this change:

(1) new Rule 902(10) would require any business records affidavit to be served on opposing counsel 30 days before trial, rather than the current 14-day requirement;
(2) records governed by a business records affidavit would no longer be filed with the clerk before trial, but instead, would merely have to be served (by paper copy or electronically) on the opposing party; and
(3) the form of a business records affidavit will be somewhat simplified.

The Supreme Court is accepting comments on this proposed rule change for the next two months and may modify the final language in response to concerns raised by the public. In fact, we have reason to believe that the Court may look with favor on a suggestion to restore the 14-day notice provision for records not governed by Chapter 18 of the Civil Practices and Remedies Code, especially if that comment came in the form of a letter that included a list of elected prosecutors who supported that change. With that in mind, please review this issue carefully and then email Shannon Edmonds with any questions or comments, including whether you would support a return to the 14-day notice provision in current law and why you favor that policy. If there is sufficient support for filing a comment to that effect, we will prepare that comment and share it with all supporters before submitting it to the Supreme Court; but if only a handful of prosecutors care about this issue, we'll probably notify those members and tell them how to comment on their own. Note also that some criminal defense lawyers and family law practitioners may be engaged in similar efforts, so feel free to direct them to their respective associations for more information.