Spousal Immunity in Texas: What is it really? [2022]

If your spouse has been accused of a crime in Texas, can you refuse to testify at their trial? In most cases, the answer is yes – but there are some exceptions. Here's what you need to know about spousal immunity in Texas.

Spousal immunity is a long-standing rule that says an individual cannot be forced to testify against their spouse in a criminal case. The rule, which is defined in 504(b) of the Texas Rules of Evidence, was implemented to preserve the integrity and sanctity of marriage.

In Texas, two rules protect couples from possibly incriminating each other: Confidential Communication Privilege and Privilege Not to Testify in a Criminal Case.

Together these rules are referred to as "Spousal Privileges" or "Husband-Wife Privileges" and are defined in Rule 504 of the Texas Rules of Evidence. We will break down each rule below.

Let's say your husband or wife was accused of a serious crime and the prosecution wanted to call you to the stand and question you about his or her behavior or verify their whereabouts on the night in question. During questioning, you would be under oath, which means you would be required by law to tell the truth and could be charged with perjury if you did not.

Clearly, this scenario creates a unique conflict of interest, which is why spousal immunity exists in Texas. If you invoke your spousal immunity privilege not to testify – which is sometimes referred to as testimonial privilege – the state can't force you to testify against your spouse in criminal proceedings.

A couple of things are worth noting. This only keeps the State from being able to call you against your will if you are the spouse of the accused. The defense could call you. Second, the privilege is yours, not the accused. The accused could not assert the privilege for your or keep you from testifying if you wanted to.

Yes, it's important to understand that it is the defendant's spouse who holds the spousal immunity privilege in Texas, meaning it is their decision whether or not to invoke it. If a spouse wants to voluntarily testify for the state, he or she can do so, even if the defendant objects.

Spousal immunity does not prohibit the defendant from calling his or her spouse as a witness. If the defendant wants to call their spouse to the stand, then they will be compelled to testify.

While spousal immunity in Texas is a broad rule, there are some exceptions to it. Spousal immunity doesn't apply:

• if the defendant's spouse is also their victim. For example, if you are a victim of domestic violence at the hands of your husband, you will be required to testify. Spousal immunity does not apply.
• if the couple wasn't married yet. For example, if you are asked to testify about matters that occurred before the marriage, you can't invoke spousal immunity. You will be required to testify.

The marital communication privilege is a rule that protects private conversations between spouses from being used as evidence in a criminal trial. This rule is defined in Rule 504(a) of the Texas Rules of Evidence.

The privilege applies to any conversation that took place between a husband and wife, as long as the couple was married when the conversation occurred and they were not legally separated at the time. The conversation must also have been meant to be confidential, meaning that the couple had an expectation of privacy.

Either the spouse (witness or defendant) can assert this privilege. When a married couple has a private conversation, they can't be asked about it on the stand if either spouse objects. In other words, either spouse may prevent the other from disclosing their communications.

There are some exceptions to the marital confidential communications privilege. You cannot refuse questioning if:

• the communication aided in the commission of a crime. For example, if you and your husband discussed committing a crime, you can be compelled to testify.
• the alleged conduct is a crime against the spouse, a minor child, or any member of the household or in a prosecution for bigamy.

If your spouse has been accused of a crime, it's important to speak to an experienced criminal defense attorney. A seasoned lawyer can help you understand your rights and options, and can ensure that your spouse's rights are protected throughout the legal process.

At Varghese Summersett, our Fort Worth criminal defense attorneys have decades of experience handling all types of criminal cases, including those involving spousal immunity and marital confidential communications. We understand the stress and anxiety you are feeling, and we will work tirelessly to help you get through this difficult time.