In family law cases, issues often arise regarding the admissibility of records that are maintained by a spouse or the household, like bank statements or children’s school records. Hearsay rules might seem to prevent admissibility of these documents unless they come directly from the bank or school. But that’s not the case.
Rule 806(6) permits records created by a third party person or entity to become the business records of another entity if the sponsoring witness has knowledge of the events recorded in the third party documents. The Texas Supreme Court reaffirmed this notion in the Duncan case, where the invoices of subcontractors became an integral part of the general contractor’s records showing the work, progress, and costs of the construction. Duncan Development Inc. v. Haney, 634 S.W.2d 811, 813-14 (Tex. 1982).
And, the personal records of a family can constitute business records. “…[P]rivate records, if kept regularly and if incidental to some personal business pursuit, are competent evidence. Sabatino v. Curtiss National Bank, 415 F.2d 632 (5th Cir. 1969, pet. denied). There, check records, even if kept by an individual, clearly meets the test of trustworthiness and is routinely entered and checked record of fact, used to compute funds remaining in one’s account, which the maker would have no motive to falsify. Id. The definition of “business” under the evidence code is broader than the ordinary use of the term. “’Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.” Tex. R. Evidence 803(6).
The 1st District Court of Appeals in Houston provides a three prong methodology for determining whether a third party’s records may become part of another entity’s records as an exception to the hearsay rule. Those three tests are:
- The records of the third party have been incorporated and kept in the regular course of the testifying witness’ business;
- That business reasonably relies upon the accuracy of the third party’s documents; and,
- Circumstances exist indicating the trustworthiness of the third party documents.
Bell v. State, 176 S.W.3d 90 (Tex. App. – Houston [1st Dist.] 2004, pet. ref’d.). The following courts have upheld the Bell test:
- Houston 1st Court: Simien v. Unifund CCR Partners, 321 S.W.3d 235 (Tex. App. – Houston [1st Dist.] 2010, no pet.);
- Austin: Ruper v. CitiMortgage, Inc., No. 03-11-00887-CV (Tex. App. – Austin 2013, pet denied);
- Dallas: Nat’l Health Resources Corp. TBF Fin., 429 S.W.3d 125 (Tex. App. – Dallas 2014, no pet)
- Houston 14th Court: Ainsworth v. CACH LLC, No. 14-11-00502-CV (Tex. App. – Houston [14th Dist.] 2012, pet denied);
The Dallas Court has also since affirmed this concept of household business records. The case of Castillon v. Morgan held that the Bell exception to the hearsay rule for business records of an entity applies to a marital household or to an individual party as much as it applies to a business. Castillon v. Morgan, No. 2015-13-00872-CV (Tex. App. – Dallas 2015, no pet.).
So, all of this together, should mean that in family court, if a spouse keeps records of activities like bank statements, credit card statements, school records, and the like, those should be admissible as an exception to hearsay as a business record of the household or spouse.