Texas Amends the Self-Authentication Rule for Business Records – Thousands of Post-It Notes with the Business-Records Predicate Thrown Away

authenticDisputes over authenticity of trial exhibits have increased in recent years. In response, the Texas Supreme Court has amended the self-authentication rule of the Texas Rules of Evidence, making it easier to authenticate business records. In fact, they even provided a form affidavit, so you can throw away that Post-It note with the business record predicate, provided you send the affidavit or unsworn declaration more than 14 days from trial.


The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

. . .

(10) Business Records Accompanied by Affidavit. The original or a copy of a record that meets the requirements of Rule 803(6) or (7), if the record is accompanied by an affidavit that complies with subparagraph (B) of this rule and any other requirements of law, and the record and affidavit are served in accordance with subparagraph (A). For good cause shown, the court may order that a business record be treated as presumptively authentic even if the proponent fails to comply with subparagraph (A).

(A) Service Requirement. The proponent of a record must serve the record and the accompanying affidavit on each other party to the case at least 14 days before trial. The record and affidavit may be served by any method permitted by Rule of Civil Procedure 21a.

(B) Form of Affidavit. An affidavit is sufficient if it includes the following language, but this form is not exclusive:

  1. I am the custodian of records of _______ [or] I am an employee or owner of ___________ and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities.
  2. Attached are ____ pages of records. These are the original records or the exact duplicates of original records.
  3. Based on the regular practices of ________, the records were:

a.  made at or near the time of each act, event, condition, opinion, or diagnosis set forth in the records;

b.  made by, or from information transmitted by, persons with knowledge of the matters set forth; and

c.  kept in the course of regularly conducted business activity.

  1. It was the regular practice of the business activity to make the records.

The comment to the rule change is particularly important. It explicitly states that unsworn declarations are sufficient under the self-authentication rule, and that you can serve the affidavit or unsworn declaration by email.

Comment to 2014 Change: The word “affidavit” in this rule includes an unsworn declaration made under penalty of perjury. TEX. CIV. PRAC. & REM. CODE § 132.001. A record and affidavit may be served electronically, including by email. TEX. R. CIV. P. 21a. The reference to “any other requirements of law” incorporates the requirements of Sections 18.001 and 18.002 of the Civil Practice and Remedies Code for affidavits offered as prima facie proof of the cost or necessity of services or medical expenses.

While undoubtedly authentication disputes will still arise (I printed it from the internet, so it must be authentic), this rule has the potential to eliminate needless authentication disputes at trial, much to the delight of jurors subjected to white-noise machines and frequent unexplained breaks.

No notary? No problem! The Little-Known Rules about Unsworn Declarations

Need an affidavit but don’t have a notary handy? Running up against a deadline to respond to interrogatories? Many litigators—especially those who represent individuals—can save the hassle Notary Stampof directing their clients to a notary by drafting unsworn declarations.

Under Texas and federal statutes, unsworn declarations may be used in lieu of most written sworn declarations, verifications, certifications, oaths, or affidavits. But unlike affidavits, unsworn declarations are not notarized.

Under Texas Civil Practice and Remedies Code § 132.001(d), the declaration must be in writing, signed by the affiant as true under penalty of perjury, and include a jurat in substantially the following form:

My name is [first name] [middle name] [last name], my date of birth is ____________, and my address is [street address], [city], [state], [zip code], and [country]. I declare under penalty of perjury that the foregoing is true and correct.

Executed in _______ County, State of ________, on the ____ day of [month], [year].


[Declarant’s Name]

Likewise on the federal side, 28 U.S.C. § 1746(2) provides the following form for declarations signed within the United States (and its territories, possessions, or commonwealths):

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on (date).


The federal statute provides a slightly different form for declarations executed outside the United States, and the Texas statute provides a different form for declarations signed by employees of state agencies and political subdivisions as well as inmates. See 28 U.S.C. § 1746(1); Tex. Civ. Prac. & Rem. Code § 132.001(e), (f).

By using unsworn declarations in the place of affidavits and verifications, attorneys can save much time and hassle in obtaining written testimony or verifications from clients.

Billing “A lot of Time” Preparing for Trial is Insufficient to Support Fee Award, Says Texas Supreme Court

alotAlthough the Texas Supreme Court handed down its El Apple opinion over 20 months ago, attorneys continue to submit inadequate affidavits and fail to provide redacted fee bills in discovery, precluding  recovery of attorney’s fees. Don’t say we didn’t warn you. In City of Laredo v. Montano, the Texas Supreme Court reaffirmed its holding in El Apple and confirmed that the days of submitting conclusory affidavits and hyperbolic testimony as “evidence” of attorney’s fees are gone (in most cases).

At issue in City of Laredo was the attempted condemnation of property in the central business district of Laredo owned by the Montano family. In December of 2004, the City decided it needed the Montanos’ property to widen a street and build a pedestrian plaza near the bridge. The Montanos refused to sell. The family claimed that the City had no public purpose for their land but rather merely intended to benefit El Portal Center, a private entity operating a nearby shopping center.

The City filed suit to condemn the property in March of 2006, and the case was tried to a jury about four years later. The jury agreed with the Montanos that the City had no authorized public use for the property and awarded attorney’s fees and expenses. The trial court rendered judgment on the jury verdict, awarding the Montanos $446,000 in attorney’s fees through trial, additional attorney’s fees on appeal, and additional sums for appraisals and other expenses the property owners incurred. The City appealed the attorney’s fees award.

A Tale of Two Attorneys

During the litigation, the Montanos were represented by multiple attorneys, including Richard J. Gonzalez and Adriana Benavides-Maddox. Gonzalez testified to performing the following tasks in the Montanos’ defense: (1) making an open records request; (2) searching through city council meeting minutes regarding the Montano family’s property; (3) watching 38 DVDs of the city-council meetings (some more than once); (4) visiting the premises many times; (5) conducting “a lot” of legal research; (6) preparing the pleadings and motions; (7) spending time in court for appearances; (8) spending “countless hours” preparing for and taking depositions; (9) reviewing the transcripts and DVDs of the depositions; and (10) preparing for trial and trying the case. Gonzalez further testified to working on the case for 226 weeks, estimating that he devoted on average “a barebones minimum” of six hours a week to the case.

The Court held that Gonzalez’s testimony that he spent “a lot of time getting ready for the lawsuit,” conducted “a lot of legal research,” visited the premises “many, many, many, many times,” and spent “countless” hours on motions and depositions was not evidence of a reasonable attorney’s fee under the lodestar method. Montano, 414 S.W.3d 731, 736 (Tex. 2013) (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012)). In fact, the Court characterized Gonzalez’s testimony as “simply devoid of substance.”

The Court reaffirmed El Apple, noting that “a lodestar calculation requires certain basic proof, including itemizing specific tasks, the time required for those tasks, and the rate charged by the person performing the work.” Id. (citing El Apple, 370 S.W.3d at 765). The Court further noted that “in all but the simplest cases, the attorney would probably have to refer to some type of record or documentation to provide this information.” Based on this reasoning, the Court reversed the award of attorney’s fees to Gonzalez and remanded the case back to the trial court for further proceedings.

Benavides-Maddox’s testimony, on the other hand, was not deficient. She testified that she used a billing system to keep track of her time in the case and that she had billed, and been paid, $25,000 for her work up to trial. She further testified that her contract with the Montanos provided for payment at her $200 hourly rate. Finally, she testified that she arrived early each day of trial and continued to work after the jury was dismissed preparing for the next day. She estimated that she worked about twelve hours per day during the course of the five-day trial. The Court noted:

While similar to Gonzalez’s estimation that he worked the case an average of six hours a week during his four-year involvement, it is also different in significant respects. The billing inquiry here involves contemporaneous events and discrete tasks—the trial and associated preparation for each succeeding day. Moreover, it is a task the opponent witnessed at least in part, having also participated in the trial. Despite this knowledge, Benavides-Maddox’s charges relating to the trial were not questioned on cross-examination. Unlike Gonzalez’s testimony, Benavides-Maddox’s testimony about her unbilled trial work is some evidence on which to base an award of attorney’s fees because it concerns contemporaneous or immediately completed work for which she had not had time to bill, or presumably even record, in her billing system.

Id. at 737. The Court affirmed the award attributable to Benavides-Maddox’s fees.

The tale of these two attorneys provides an important moral: he that does not keep (and submit) contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed is a man awaiting his folly.