Cases involving questions on the admissibility of evidence rarely rise to the level of importance that the Texas Supreme Court gets involved.  Yet these questions routinely arise in the trial courts and are fundamental to trial practice.  The Texas Supreme Court recently examined an evidence question involving the admissibility of public records.

In Fleming v. Wilson, the defendants moved for summary judgment on the defense of collateral estoppel.  They supported their motion by attaching a jury verdict form and a judgment from a prior case (tried by the same trial judge).  The verdict form and judgment were not certified or authenticated copies, but they bore a watermark stating that they were unofficial copies of the district clerk, they contained the district clerk’s initialed, file-stamp, and they each had the trial judge’s signature on them.

The plaintiffs objected on the grounds that the documents were not certified or authenticated.  The trial court overruled the objections and granted summary judgment in favor of the defendants.  The plaintiffs appealed.

On appeal, the court of appeals reversed the summary judgment after concluding that the judgment and jury verdict were not sufficiently authenticated.

The Texas Supreme Court reversed the court of appeals judgment and reinstated the trial court’s summary judgment.  The court rejected the idea that if a document is not self-authenticating (as some documents are) that the proponent of the document must necessarily introduce some additional, extrinsic evidence to authenticate the document.

Turning to Texas Rule of Evidence 901, the court observed that it contains a non-exclusive list of examples of documents and how those documents might be authenticated.  Some of those examples indicate a need for extrinsic evidence, but others do not.

With respect to the jury verdict and judgment that were the documents in question, the court held that they were properly authenticated based upon two separate examples found in Rule 901.

Paragraph (b)(4) states:

Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

Paragraph (b)(7) states:

Evidence About Public Records.

Evidence that:

(A) a document was recorded or filed in a public office as authorized by law; or

(B) a purported public record or statement is from the office where items of this kind are kept.

Because the jury verdict and judgment bore a diagonal watermark from the district clerk’s office, a stamp, and signature noting when they were filed in the clerk’s office, and the trial judge’s own signature, the court held that the trial court did not abuse its discretion by treating the documents as authentic under paragraph (b)(4).

Further the court noted that under paragraph (b)(7) an uncertified public record might be authenticated if it contains sufficient evidence that it was filed or kept in a public office.  Here, the court concluded that the watermark and file-stamp were sufficient such that the trial court could not be said to have abused its discretion by finding the documents authentic.

For the readers’ benefit, links to the documents at issue showing the watermark, file-stamp, and signature may be found at this link.

The breadth of the Fleming  holding remains to be seen.  In particular, suppose the documents had only the judge’s signature on them, or only the the clerk’s file-stamp (now usually electronic).  Would the either of those facts qualify the documents for authentication under Rule 901?

By Published On: October 12, 2020Categories: AppellateTags: ,

About the Author: Mike Northrup

Mike Northrup is a Shareholder and Section Head of the Cowles and Thompson Appellate Practice Group.