The Woodlands Criminal Defense Attorney -Texas Rules of Evidence Series RULE 511

Rule 511 is the rule which allows for waiver of the various privileges outlined in the preceding 500 series rules. This rule allows the person who is the holder of the privilege to disclose matters related to the privilege. So for example you could share personal medical information about how you can't bend over at all in a civil case where someone alleged you bent over and punched them. More significantly, you can inadvertently waive the privilege if you call your psychiatrist to the stand to talk about what good character you have or how non-violent you are. If you do this then the opposing side is going to be able to ask have you heard or did you know questions to your character witness and even inquire into otherwise privileged communications about violent behaviors or good character. The inquiries have to relate to the character issue for which the witness was called by the privilege holder in the first place. So you do have some protection if for example you sought drug and alcohol counseling you could call the counselor to testify as to your character for peacefulness without exposing your character for drunkenness automatically. If you are on the other side of that issue trying to cross examine then you may be able to argue that drunkenness can relate to violence and therefore you should be allowed to ask relevant questions.

RULE 511 Waiver by Voluntary Disclosure

(a) General Rule. A person upon whom these rules confer a privilege against disclosure waives the privilege if: (1) the person or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged; or

(2) the person or a representative of the person calls a person to whom privileged communications have been made to testify as to the person’s character or character trait insofar as such communications are relevant to such character or character trait.

(b) Lawyer-Client Privilege and Work Product; Limitations on Waiver. Notwithstanding paragraph (a), the following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the lawyer-client privilege or work-product protection.

(1) Disclosure Made in a Federal or State Proceeding or to a Federal or State Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or state proceeding of any state or to a federal office or agency or state office or agency of any state and waives the lawyer-client privilege or work-product protection, the waiver extends to an undisclosed communication or information only if: (A) the waiver is intentional; (B) the disclosed and undisclosed communications or information concern the same subject matter;

and

(C) they ought in fairness to be considered together.

(2) Inadvertent Disclosure in State Civil Proceedings. When made in a Texas state proceeding, an inadvertent disclosure does not operate as a waiver if the holder followed the procedures of Rule of Civil Procedure 193.3(d).

(3) Controlling Effect of a Court Order. A disclosure made in litigation pending before a federal court or a state court of any state that has entered an order that the privilege or protection is not waived by disclosure connected with the litigation pending before that court is also not a waiver in a Texas state proceeding.

(4) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a state proceeding of any state is binding only on the parties to the agreement, unless it is incorporated into a court order.

Comment to 2015 Restyling: The amendments to Rule 511 are designed to align Texas law with federal law on waiver of privilege by voluntary disclosure. Subsection (a) sets forth the general rule. Subsection (b) incorporates the provisions of Federal Rule of Evidence 502. Like the federal rule, subsection (b) only addresses disclosure of communications or information covered by the lawyer-client privilege or work-product protection. These amendments do not affect the law governing waiver of other privileges or protections.

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