EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, August 17, 2011

In The Public Eye: Court Of Appeals Of Texas Finds Public Records Weren't Self-Authenticating In Negligence Appeal

Texas Rules of Evidence 902(4) & (10) provide that

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:....

(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority.....

(10) Business Records Accompanied by Affidavit.

(a) Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause.

(b) Form of affidavit. A form for the affidavit of such person as shall make such affidavit as is permitted in paragraph (a) above shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice....

In its recent opinion in Husain v. Petrucciani,  2011 WL 3449497 (Tex.App.-Houston [14 Dist.],2011), the Court of Appeals of Texas, Houston correctly concluded that non-certified copies of public records no accompanied by an affidavit were not self-authenticating under these rules. But couldn't they still have been authenticated under Texas Rule of Evidence 901(b)(7)?

In Petrucciani

Russell A. Petrucciani used his 2008 Ford F–150 pick-up truck as a company vehicle for Spectrum [Construction Services, Inc]. On the morning of February 17, 2009, while on his way to work, Petrucciani stopped at a dry cleaning establishment located on FM 1960 in the Spring, Texas area. He parked directly in front of the business, left the keys in the ignition and the vehicle running, and went inside the dry cleaners. While inside waiting for service, Petrucciani looked out the front window and saw a thief sitting in the driver's seat of his pick-up truck. Petrucciani immediately returned to his truck, opened the door, and tried to remove the thief. After a struggle, the thief shifted the truck into reverse and accelerated through the parking lot. Petrucciani hung onto the truck between the open driver's side door and the frame of truck.

The thief then struck a parked car in the parking lot. Petrucciani fell to the ground, severely injured. The thief sped from the parking lot in Petrucciani's truck onto FM 1960. Less than a minute later, the thief struck the Husains' vehicle with Petrucciani's truck.

The Husains thereafter brought an action against Petrucciani and Spectrum, alleging "that Petrucciani was negligent both by leaving his vehicle in a manner in which it could be entered and operated by another person and by engaging in a physical altercation with the thief." Petrucciani and Spectrum responded with a motion for summary judgment dismissing the complaint. In turn, the Husains responded with, inter alia,

voluminous paperwork obtained by the Husains from the Harris County Sheriff's Office produced pursuant to a public information request for the following: [C]opies of selected crime statistics 2008, 2009 for that area generally defined by Tomball Parkway/Hwy 290 to the west, FM 2920 to the north, Kuykendahl Road to the east, and Sam Houston Tollway (Beltway 8) to the south, including any patrol beat or patrol district contained within or partially within such area: 1) All calls for service, or records of any activity by any member of your department, or response or appearance of any member of your department for any complaint relating to or of auto theft, attempted auto theft, unauthorized use of motor vehicle, burglary of motor vehicle, vandalism of a motor vehicle, and/or criminal mischief relating to a motor vehicle w/in any patrol district, patrol beat contained wholly or partially w/in [the area as defined above]; 2) All 911 records, dispatch slip(s), dispatch log reports, and/or any publicly releasable section or portions of any case reports files, calls for service or reports or documents of any sort wherein RUSSELL A. PETRUCCIANI...is identified as either complainant, witness, or suspect, or in any other capacity at any time w/in the 10 years prior to the date of this request, at any location w/in your jurisdiction[.] 

The trial court deemed this paperwork inadmissible and granted the defendants' motion for summary judgment. The Husains then appealed, claiming, inter alia, that the trial court erred in deeming this evidence inadmissible. The Court of Appeals of Texas, Houston, disagreed, concluding that

The Husains acknowledge that the public information request information does not contain certified copies of this information. Under the Texas Rules of Evidence, "public records" may be self-authenticating, if presented in the form of a certified copy or if accompanied by an affidavit made by a custodian of the records. Tex.R. Evid. 902(4), (10). But these documents were not properly authenticated under this rule because the documents are neither certified copies nor were they accompanied by an affidavit made by the custodian of the records. As such, the trial court did not abuse its discretion in excluding the public information request documents from the summary-judgment record.

I agree with this conclusion, but this merely means that the paperwork was not self-authenticating under Texas Rule of Evidence 902. The Husains, however, still could have properly authenticated the paperwork under Texas Rule of Evidence 901 generally and Texas Rule of Evidence 901(b)(7) specifically. Texas Rule of Evidence 901(b)(7) provides that public records or reports can be authenticated through

Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

So, what happened? Did the Husains not argue that the paperwork was admissible under Texas Rule of Evidence 901(b)(7)? Did they fail to present the extrinsic evidence required to authenticate non-self-authenticating writings? The opinion of the Court of Appeals of Texas doesn't answer these questions.



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