Bruce A. Atkins

                             UNIVERSITY OF HOUSTON LAW CENTER
                        ADVANCED CIVIL LITIGATION SHORT COURSE
                                           MARCH 23 - 24, 1989
                                         EVIDENCE LAW UPDATE 

                                         EVIDENCE LAW CENTER

I. SCOPE OF THE ARTICLE. This article reviews civil case decisions by the Texas Supreme Court and the various Texas Courts of Appeal concerning evidence law that were reported in West's South Western Reporter during the 1988 calendar year. While numerous issues may have been before the court in an action, this outline focuses on the evidence issues and does not review the remaining issues. Case citations refer to the Texas Rules of Civil Evidence. Each case, while it may not be a milestone of decisional law, contributes in some manner to the devel­opment of the law of civil evidence in the Texas state court system.

II. ARTICLE I. GENERAL PROVISIONS.

A. Tex. R. Civ. Evid. l03(a). Ruling on Evidence; Effect of erroneous ruling.

1. Rule. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) in the case of a ruling admitting evidence, a timely objection or motion to strike appears of record, or (2) in the case of a ruling excluding evidence, the substance of the evidence is made known to the court by offer.

2. V.M. Solis Underqround Util. v. Laredo, 751 S.W.2d 532 (Tex. App. - San Antonio 1988). In this case, a contractor hired by the city to construct storm sewers sued the city and consulting engineers for tortious interference with its contractual relationship and for breach of contract. A witness, reading from a letter he had written to the contractor, testified at a prior temporary injunction hearing in the same case. The letter was admitted into evidence at the temporary injunc­tion hearing. The letter contained conclusory opinions about efforts to hinder the contrac­tor's ability to perform his contract. It contained no specific facts. That witness was unavailable at trial. The record showed that despite significant efforts to locate that witness over a substantial period of time, his whereabouts really were unknown. Tex. R. Civ. Evid 804(b)
(1) provides that if a party is unavailable as a witness, his testimo­ny at a former hearing is not excluded as hearsay if a party against whom the testimony was offered had an opportunity to develop the