What is Spousal Privilege Under Texas Law?

Being charged with a crime is a situation that has the potential to transform many lives, not just the lives of those directly affected as a perpetrator or a victim. The loved ones, including spouses, often experience both the immense stress and the changes in their everyday lives.

In order to mitigate these transitions and for various other reasons, Texas has a well-established spousal privilege law: a legal permission for a spouse not to testify against their partner. According to Texas legislation, spousal immunity includes two privileges: the privilege not to testify in a criminal trial and the marital confidential communications privilege.

In this blog post, we cover specificities of this privilege, including details about what the law entails, what kinds of relationships are recognized, exceptions to the rule, and marital confidential communications privilege.

Privilege Not to Testify in a Criminal Case

Woman Testifying at Court

Spousal privilege, commonly known as spousal immunity, is a rule implemented with the aim of preserving the sanctitude and integrity of marriage. According to the Texas Rules of Evidence 504 (b), spouses cannot be compelled to testify against their partner who is being criminally prosecuted in a court of law.

Voluntarily Testifying at Spouse’s Trial

While the spouses are legally ensured the right not to testify, some people choose to voluntarily testify for various reasons. They are not obliged to invoke this privilege and are free to make a choice if they want to do it or not. The spouse can volunteer to testify in spite of their partner’s objections.

Similarly, the defendant has the right to invite their spouse as a witness. If their partner is open to taking the stand, they will be welcome to do it.

Exceptions to Privilege Not to Testify

Similar to a number of other laws in Texas, spousal immunity legislation includes exceptions.

The first spousal privilege exception is a situation in which the couple is either not yet married, or has been divorced. In other words, the partners cannot invoke their spousal privilege for crimes that have happened before they have gotten married, or after the couple had divorced.

The second situation in which the spousal privilege does not apply are situations in which the defendant has committed a crime against their spouse, who is now defined as a victim. The most common example of this is domestic violence committed by the defendant.

Marital Confidential Communication Privilege

What is the Confidential Communications Privilege?

Jail Telephone

Marital confidential communications privilege is defined as any sort of confidential communication between a married couple that they do not want to disclose to anyone else.

This privilege does not apply to couples that have not yet been married or have been divorced at the time when the conversation has taken place. However, if a couple is now divorced, but the correspondence in question happened while they were married, they can retain their right to privacy.

Who Holds the Confidential Communications Privilege?

People who hold rights to marital confidential communications privilege include the spouses engaged in communications, legal guardians of a spouse who is incapable of communicating, as well as a personal or legal representative of a now-deceased communicating spouse.

Additionally, a spouse has the right to claim the privilege of communicating on their spouse’s behalf if they have the authority for it.

The other spouse may claim the privilege on the communicating spouse’s behalf—and is presumed to have authority to do so.

Exceptions to Marital Confidential Communication Privilege

The marital confidential communications privilege does not apply in the following cases:

If the crime has been committed against a child who is a minor, a spouse, another household or family member;

If the correspondence or a discussion has helped the defendant to commit a crime, or if they have discussed committing a crime with their spouse;

In case of bigamy.

Does Spousal Immunity Apply to All Relationships in Texas?

The spousal privilege law was created in order to preserve the integrity of the holy matrimony. As such, it only applies to common-law spouses who are living together and are a man and a woman.

This means that the law does not apply to other kinds of relationships such as civil partnerships, same-sex marriages, couples living together, and other relationships between family members.

Contact Benjamin Gergen today at (512) 614-4412 if you require any help with your spouse’s criminal defense case.