LegalTips.ORG - Texas CIVIL PRACTICE & REMEDIES CODE

§ 18.001. AFFIDAVIT CONCERNING COST AND NECESSITY OF
SERVICES. (a) This section applies to civil actions only, but not
to an action on a sworn account.
(b) Unless a controverting affidavit is filed as provided by
this section, an affidavit that the amount a person charged for a
service was reasonable at the time and place that the service was
provided and that the service was necessary is sufficient evidence
to support a finding of fact by judge or jury that the amount
charged was reasonable or that the service was necessary.
(c) The affidavit must:
(1) be taken before an officer with authority to
administer oaths;
(2) be made by:
(A) the person who provided the service; or
(B) the person in charge of records showing the
service provided and charge made; and
(3) include an itemized statement of the service and
charge.
(d) The party offering the affidavit in evidence or the
party's attorney must file the affidavit with the clerk of the court
and serve a copy of the affidavit on each other party to the case at
least 30 days before the day on which evidence is first presented at
the trial of the case.
(e) A party intending to controvert a claim reflected by the
affidavit must file a counteraffidavit with the clerk of the court
and serve a copy of the counteraffidavit on each other party or the
party's attorney of record:
(1) not later than:
(A) 30 days after the day he receives a copy of
the affidavit; and
(B) at least 14 days before the day on which
evidence is first presented at the trial of the case; or
(2) with leave of the court, at any time before the
commencement of evidence at trial.
(f) The counteraffidavit must give reasonable notice of the
basis on which the party filing it intends at trial to controvert
the claim reflected by the initial affidavit and must be taken
before a person authorized to administer oaths. The
counteraffidavit must be made by a person who is qualified, by
knowledge, skill, experience, training, education, or other
expertise, to testify in contravention of all or part of any of the
matters contained in the initial affidavit.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended
by Acts 1987, 70th Leg., ch. 167, § 3.04(a), eff. Sept. 1, 1987.

§ 18.002. FORM OF AFFIDAVIT. (a) An affidavit
concerning cost and necessity of services by the person who
provided the service is sufficient if it follows the following
form:

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AFFIDAVIT
Before me, the undersigned authority, personally appeared
__________(NAME OF AFFIANT)__________, who, being by me duly sworn,
deposed as follows:
My name is __________(NAME OF AFFIANT)__________. I am of
sound mind and capable of making this affidavit.
On __________(DATE)__________, I provided a service to
__________(NAME OF PERSON WHO RECEIVED SERVICE)__________. An
itemized statement of the service and the charge for the service is
attached to this affidavit and is a part of this affidavit.
The service I provided was necessary and the amount that I
charged for the service was reasonable at the time and place that
the service was provided.
________________________________
Affiant

SWORN TO AND SUBSCRIBED before me on the __________ day of
__________, 19___.

My commission expires:

______________________
________________________________
Notary Public, State of Texas
Notary's printed name:
________________________________
(b) An affidavit concerning cost and necessity of services
by the person who is in charge of records showing the service
provided and the charge made is sufficient if it follows the
following form:

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AFFIDAVIT
Before me, the undersigned authority, personally appeared
______(NAME OF AFFIANT)______, who, being by me duly sworn, deposed
as follows:
My name is __________(NAME OF AFFIANT)__________. I am of
sound mind and capable of making this affidavit.
I am the person in charge of records of __________(PERSON WHO
PROVIDED THE SERVICE)__________. Attached to this affidavit are
records that provide an itemized statement of the service and the
charge for the service that __________(PERSON WHO PROVIDED THE
SERVICE)__________ provided to __________ (PERSON WHO RECEIVED THE
SERVICE)__________ on __________(DATE)__________. The attached
records are a part of this affidavit.
The attached records are kept by me in the regular course of
business. The information contained in the records was transmitted
to me in the regular course of business by __________(PERSON WHO
PROVIDED THE SERVICE)__________ or an employee or representative of
__________(PERSON WHO PROVIDED THE SERVICE)__________ who had
personal knowledge of the information. The records were made at or
near the time or reasonably soon after the time that the service was
provided. The records are the original or an exact duplicate of the
original.
The service provided was necessary and the amount charged for
the service was reasonable at the time and place that the service
was provided.
________________________________
Affiant

SWORN TO AND SUBSCRIBED before me on the __________ day of
__________, 19___.

My commission expires:

______________________
________________________________
Notary Public, State of Texas
Notary's printed name:
________________________________
(c) The form of an affidavit provided by this section is not
exclusive and an affidavit that substantially complies with Section
18.001 is sufficient.

Added by Acts 1993, 73rd Leg., ch. 248, § 1, eff. Aug. 30, 1993.

SUBCHAPTER B. PRESUMPTIONS

§ 18.031. FOREIGN INTEREST RATE. Unless the interest
rate of another state or country is alleged and proved, the rate is
presumed to be the same as that established by law in this state and
interest at that rate may be recovered without allegation or proof.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 18.032. TRAFFIC CONTROL DEVICE PRESUMED TO BE
LAWFUL. (a) In a civil case, proof of the existence of a traffic
control device on or alongside a public thoroughfare by a party is
prima facie proof of all facts necessary to prove the proper and
lawful installation of the device at that place, including proof of
competent authority and an ordinance by a municipality or order by
the commissioners court of a county.
(b) Proof of the existence of a one-way street sign is prima
facie proof that the public thoroughfare on or alongside which the
sign is placed was designated by proper and competent authority to
be a one-way thoroughfare allowing traffic to go only in the
direction indicated by the sign.
(c) In this section, 'traffic control device' includes a
control light, stop sign, and one-way street sign.
(d) Any party may rebut the prima facie proof established
under this section.

Added by Acts 1995, 74th Leg., ch. 165, § 2, eff. Sept. 1, 1995.

§ 18.033. STATE LAND RECORDS. (a) In a dispute between
the State of Texas and an upland owner of property fronting on the
Gulf of Mexico and the arms of the Gulf of Mexico within the
boundaries of the State of Texas, the maps, surveys, and property
descriptions filed in the General Land Office in connection with
any conveyance by the state or any predecessor government by
patent, deed, lease, or other authorized forms of grant shall be
presumed to accurately depict the boundary between adjacent upland
owners and the state-owned submerged lands.
(b) This presumption applies only to those surveys
conducted by a surveyor duly appointed, elected, or licensed, and
qualified.
(c) This presumption may be overcome only on a showing of
clear and convincing evidence that the boundary as described and
depicted in the archives of the General Land Office is erroneous.

Added by Acts 2003, 78th Leg., ch. 148, § 1.

SUBCHAPTER C. ADMISSIBILITY

§ 18.061. COMMUNICATIONS OF SYMPATHY. (a) A court in a
civil action may not admit a communication that:
(1) expresses sympathy or a general sense of
benevolence relating to the pain, suffering, or death of an
individual involved in an accident;
(2) is made to the individual or a person related to
the individual within the second degree by consanguinity or
affinity, as determined under Subchapter B, Chapter 573, Government
Code; and
(3) is offered to prove liability of the communicator
in relation to the individual.
(b) In this section, 'communication' means:
(1) a statement;
(2) a writing; or
(3) a gesture that conveys a sense of compassion or
commiseration emanating from humane impulses.
(c) Notwithstanding the provisions of Subsections (a) and
(b), a communication, including an excited utterance as defined by
Rule 803(2) of the Texas Rules of Evidence, which also includes a
statement or statements concerning negligence or culpable conduct
pertaining to an accident or event, is admissible to prove
liability of the communicator.

Added by Acts 1999, 76th Leg., ch. 673, § 1, eff. Sept. 1, 1999.

SUBCHAPTER D. CERTAIN LOSSES

§ 18.091. PROOF OF CERTAIN LOSSES; JURY
INSTRUCTION. (a) Notwithstanding any other law, if any claimant
seeks recovery for loss of earnings, loss of earning capacity, loss
of contributions of a pecuniary value, or loss of inheritance,
evidence to prove the loss must be presented in the form of a net
loss after reduction for income tax payments or unpaid tax
liability pursuant to any federal income tax law.
(b) If any claimant seeks recovery for loss of earnings,
loss of earning capacity, loss of contributions of a pecuniary
value, or loss of inheritance, the court shall instruct the jury as
to whether any recovery for compensatory damages sought by the
claimant is subject to federal or state income taxes.

Added by Acts 2003, 78th Leg., ch. 204, § 13.09, eff. Sept. 1,
2003.