Texas Hearsay Exceptions: Rules 801, 803, and 804

The Texas hearsay exceptions live in three places in the Texas Rules of Evidence. Rule 801(e) pulls certain statements out of the hearsay definition entirely. Rule 803 lists exceptions that work whether or not the person who spoke can testify. Rule 804 lists exceptions that only apply when the speaker is unavailable. Which track a statement falls into usually decides whether it comes in or gets excluded.

A working definition helps before the exceptions do. Under Rule 801(d), hearsay is a statement the speaker did not make while testifying at the current trial or hearing, offered to prove that what the statement asserts is true.¹ If a bystander yelled “the car ran the red light” and an attorney offers that testimony to prove the car actually ran the light, it is hearsay. If the same testimony is offered only to show the witness heard a loud noise, it is not. The purpose of the offer controls.

Statements Rule 801(e) Treats as Non-Hearsay

Rule 801(e) removes several categories from the hearsay definition altogether. A statement in one of these categories faces no hearsay objection at all.¹

An Opposing Party’s Statement

If you said it, the other side can use it against you. The rule reaches beyond words you personally spoke: it also covers statements you adopted or indicated you believed, statements by someone you authorized to speak for you, statements by your employee or agent about matters within the scope of that relationship, and statements by a coconspirator made during and in furtherance of the conspiracy.¹

A Witness’s Own Prior Statements

When a witness testifies and is subject to cross-examination, three kinds of prior statements by that same witness are non-hearsay. A prior inconsistent statement counts if it was given under penalty of perjury at a trial, hearing, other proceeding, or deposition. In criminal cases, grand jury testimony is excluded. A prior consistent statement comes in when the opposing party charges recent fabrication or improper motive. And a statement identifying a person the witness perceived earlier also qualifies.²

Depositions in the Same Civil Case

Texas adds a category the federal rules lack. Under Rule 801(e)(3), a statement made during a deposition taken in the same civil proceeding is not hearsay, and the deponent does not need to be unavailable.² Deposition testimony from the same lawsuit can be introduced at trial as substantive evidence without meeting the unavailability requirements of Rule 804.

Rule 803 Exceptions That Apply Regardless of Availability

Rule 803 exceptions rest on the idea that certain circumstances make a statement reliable enough that cross-examining the speaker would add little.¹ The speaker’s availability is irrelevant.

Present Sense Impressions and Excited Utterances

A present sense impression is a statement describing or explaining an event, made while the declarant was witnessing it or immediately afterward. An excited utterance is a statement about a startling event, made while the declarant was still under the stress of that event.¹ Both rely on the same idea: when someone speaks in the moment, there is little time to fabricate. A present sense impression needs near-simultaneity with the event. An excited utterance can come somewhat later so long as the speaker is still reacting to the shock. A calm, reflective account given hours later is neither.

Then-Existing Mental, Emotional, or Physical Condition

A statement about the declarant’s current state of mind, emotion, or physical sensation is admissible. This covers statements like “I plan to drive to Houston tomorrow” for intent, “my back hurts” for a physical condition, or “I’m afraid of him” for an emotional state. The exception does not extend to statements of memory or belief offered to prove the fact remembered, unless the statement relates to the declarant’s will.¹

Statements Made for Medical Diagnosis or Treatment

A statement made for medical diagnosis or treatment is admissible if it is reasonably related to that purpose and describes the patient’s medical history, symptoms, how those symptoms began, or their general cause.¹ The reasoning is that patients have a strong incentive to be truthful with their doctor. This exception shows up constantly in personal injury and family cases. The identity of the person who caused the injury is generally not covered unless it is pertinent to treatment, as in child abuse cases where knowing the abuser affects the child’s care.

Recorded Recollection

When a witness once knew something but can no longer recall it well enough to testify fully, a record the witness made or adopted while the memory was fresh can be read aloud to the jury. Three conditions apply: the witness must have insufficient memory to testify completely, the record must have been made or adopted when the matter was fresh, and it must accurately reflect the witness’s knowledge without circumstances casting doubt on its trustworthiness.¹ The record can be read into evidence, but it only becomes a physical exhibit if the opposing party offers it.

Business Records

Records kept in the regular course of any organized activity are admissible if four conditions are met: the record was made at or near the time of the event by someone with knowledge, it was kept during a regularly conducted business activity, creating such records was routine for that activity, and these facts are established through a records custodian’s testimony or an affidavit that complies with Rule 902(10).¹ “Business” includes any regular organized activity, whether for profit or not. Medical records, invoices, bank statements, and digital logs all qualify as long as the record-keeping system is systematic. The opponent can still exclude the records by showing that the source of information or the method of preparation is untrustworthy.

The Rule 902(10) affidavit route lets you authenticate records without live testimony. The affidavit must identify the custodian, confirm the records were made at or near the time of the events by someone with knowledge, and verify the records were kept in the ordinary course of business. The records and affidavit must be served on the opposing party at least 14 days before trial.² Miss that 14-day deadline and you may have to bring the custodian to court.

Public Records

Public office records are admissible if they document the office’s own activities, record a matter observed under a legal duty to report, or (in civil cases or against the government in a criminal case) contain factual findings from a legally authorized investigation.¹ One important limit for criminal cases: observations by law enforcement personnel do not come in under this exception. That prevents the prosecution from using a police report as a substitute for having the officer testify. The opponent can still challenge a public record by showing its source or circumstances indicate a lack of trustworthiness.

Rule 804 Exceptions That Require an Unavailable Declarant

Rule 804 exceptions apply only when the speaker cannot testify. The court has to be satisfied the declarant genuinely cannot appear before any of these open up.²

What Counts as Unavailable

Privilege: the court rules that a privilege exempts the declarant from testifying about the subject.
Refusal: the declarant refuses to testify despite a court order.
Memory loss: the declarant testifies to not remembering the subject.
Death or illness: the declarant cannot be present or testify because of death, infirmity, physical illness, or mental illness.
Absence: the declarant is absent and the proponent cannot procure attendance or testimony through a subpoena or other reasonable means.

None of these grounds work if the party offering the statement is the one who caused the declarant’s absence. The Texas Court of Criminal Appeals adopted this forfeiture-by-wrongdoing principle in Gonzales v. State, confirming that a party cannot profit from its own misconduct in making a witness unavailable.²

Former Testimony

Testimony from an earlier proceeding comes in under Rule 804(b)(1) if the party against whom it is now offered had an opportunity and similar motive to develop it through direct, cross-, or redirect examination. In civil cases, testimony from a deposition in a different proceeding also qualifies. In criminal cases, deposition testimony must have been taken under Chapter 39 of the Code of Criminal Procedure and offered in accordance with that chapter.²

Dying Declarations

A statement by someone who believes their death is imminent, made about the cause or circumstances of that impending death, is admissible. Texas’s version is broader than the federal rule. The federal rule limits dying declarations to civil cases and homicide prosecutions; Texas imposes no such limit, so the exception applies in any type of case.² What matters is the declarant’s subjective belief that death is imminent when the statement is made. A person seriously injured but optimistic about recovery does not meet the standard.

Statements Against Interest

A statement so contrary to the declarant’s financial, property, or legal interests that a reasonable person would not have said it unless they believed it to be true is admissible when the declarant is unavailable. This covers statements that would expose the declarant to civil or criminal liability or harm their financial position. In criminal cases, a statement that tends to expose the declarant to criminal liability must be supported by corroborating circumstances that clearly indicate its trustworthiness. That safeguard blocks fabricated confessions offered to help a defendant.

Statements of Personal or Family History

An unavailable declarant’s statements about their own birth, adoption, marriage, ancestry, or similar facts of personal history are admissible, even without personal knowledge. Statements about another person’s family history are also admissible if the declarant was related to that person by blood, adoption, or marriage, or was so closely associated with the family that the information is likely accurate.²

Hearsay Within Hearsay

One piece of evidence can contain multiple layers of out-of-court statements. A hospital record might include a nurse’s written notes quoting what a patient said. Under Rule 805, layered hearsay is admissible only if each layer independently qualifies under an exception or exclusion.² In the hospital example, the nurse’s notes might qualify as a business record under Rule 803(6) and the patient’s statements might qualify as statements made for medical diagnosis under Rule 803(4). If both layers check out, the evidence comes in. If either fails, the whole thing is excluded. Medical records, police reports, and corporate memos get challenged this way constantly.

The Residual Exception

Rule 807 is a catch-all for statements that fit no specific exception but carry equivalent guarantees of trustworthiness. Courts treat it as a narrow safety valve. The statement must be more probative on the point it addresses than any other evidence the proponent can reasonably obtain, and admitting it must serve the interests of justice. The proponent must give the opposing party reasonable notice, including the substance of the statement and the declarant’s name, before trial.² Judges rarely admit evidence under Rule 807.

The Confrontation Clause Limit in Criminal Cases

A hearsay exception is not the end of the analysis in a criminal case. The Sixth Amendment’s Confrontation Clause can still block a testimonial out-of-court statement offered against a defendant. Under Crawford v. Washington (2004), the prosecution cannot introduce a testimonial statement unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine them. A statement is testimonial when its primary purpose is to establish facts for a future prosecution. Formal police interrogations, affidavits, and prior testimony qualify. Casual remarks to friends or offhand statements during an ongoing emergency generally do not.

The Texas Court of Criminal Appeals applies Crawford case-by-case, looking at the objective purpose of the questioning rather than what the speaker expected. The court has held that Crawford does not apply to probation or parole revocation hearings or juvenile transfer hearings. An excited utterance or a business record that satisfies Rule 803 can still be excluded in a criminal trial if it is testimonial and the defendant never had a chance to cross-examine the speaker. Dying declarations appear to survive the Confrontation Clause as a recognized historical exception, though Texas appellate courts have addressed the question less often than federal courts.

Attacking an Absent Declarant’s Credibility

When a hearsay statement is admitted, the declarant never took the stand, but the opposing party is not stuck accepting it at face value. Rule 806 allows you to attack the declarant’s credibility with any evidence that would be admissible if the declarant had testified live. You can introduce evidence of the declarant’s prior inconsistent statements or conduct, and the court can admit that impeachment evidence regardless of when it occurred or whether the declarant ever had a chance to explain it.² If you do call the declarant as a witness, you may examine them about the hearsay statement as if on cross.

Objecting and Preserving the Issue

Hearsay is not excluded automatically. Under Rule 802, hearsay is inadmissible only if someone objects. And inadmissible hearsay admitted without objection may not be denied probative value simply because it is hearsay.¹ Without an objection, the hearsay comes in and the fact-finder can rely on it.

To preserve a hearsay issue for appeal, Rule 103 requires a timely objection on the record that states the specific ground. If the objection is to the admission of evidence, you must object or move to strike before the moment passes. Waiting until cross-examination or raising the issue for the first time on appeal waives the error.¹ In criminal cases, a court may notice fundamental error affecting a substantial right without a proper objection, but that is a narrow escape hatch, not a strategy. Failing to object at the right moment can forfeit the argument permanently.

1
Texas Courts. Texas Rules of Evidence Effective September 1, 2025
2
Texas Courts. Texas Rules of Evidence