The Texas Rules of Evidence (TRE), which govern nonjury civil cases in district court, apply to contested cases at the State Office of Administrative Hearings (SOAH): “except that evidence inadmissible under those rules may be admitted if the evidence is:
(1) necessary to ascertain facts not reasonably susceptible of proof under those rules;
(2) not precluded by statute; and
(3) of a type on which a reasonably prudent person commonly relies in the conduct of the person’s affairs.”
Administrative Procedure Act § 2001.081. Here the APA carves out major exceptions to the blanket adherence to the TRE.
Hearsay Exceptions for Administrative Hearings Before SOAH
The TRE defines “hearsay” as “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Tex. R. Evid. 801(d). The TRE goes on to carve out a number of exceptions to the rule against hearsay.
Two of the hearsay exceptions that occur most regularly in the administrative proceeding context are the public records exception and the business records exception.
Public Records Exception
The public records exception to the hearsay rule is vital because state agency records are almost always implicated in case hearings before SOAH. This exception allows for the state agency records to be admitted into evidence.
The public records exception excludes the following from being considered hearsay: “A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.”
Tex. R. Evid. § 803(8). It is important to understand that not all document in an agency’s files are considered “public records” under TRE § 803(8). If the document in questions does not satisfy the requirements of the public records exception, then that document is inadmissible unless another hearsay exception is applicable.
Business Records Exception
The business records exception excludes records of a regularly conducted activity from being inadmissible hearsay. This exception excludes the following from being considered hearsay: A record of an act, event, condition, opinion, or diagnosis made at or near the time by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the report or record, all as shown by the testimony of the custodian or other qualified witness, or by affidavit, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Tex. R. Evid. § 803(6).
Similarly to the public records exception, not every document from a business will meet the business records exception. If the document in questions does not satisfy the requirements of the business records exception, then it is inadmissible unless it can be admitted under another hearsay exception.
Administrative law can be complex and is a specialized area. If you are going to appear before SOAH, it is critical that you understand the applicable rules of evidence.
Representation for Administrative Hearings Before SOAH
The professional license defense attorneys of BERTOLINO LLP are prepared to represent you at any administrative hearing. We have in-depth knowledge of the evidentiary rules that apply at SOAH hearings. When you hire us, we will zealously defend your rights and do everything possible to show that your actions were in accordance with the rules and responsibilities of your profession.
BERTOLINO LLP proudly represents licensed professionals across the entire State of Texas. To best serve our clients we have offices in Austin, Houston, and San Antonio. Our law firm helps professionals, like you, keep their licenses when those licenses are under attack by a state agency or board.
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