What You Need to Know About Spousal Immunity in Texas

Originally published by Law Office of Brett A Podolsky.

If your spouse has been charged with a criminal offense, you might be questioning whether you will be asked to testify during their trial. It can be traumatizing to discover that a loved one has been slapped with serious charges. Often, the accused’s boyfriend, girlfriend, or spouse can suffer from cognitive dissonance, which causes them to question their own memories.

Because of reason and others, spouses are granted what’s called spousal immunity in Texas. This privilege allows the spouse to not be called as a witness during a criminal trial in some situations. Learn everything you need to know about spousal immunity in Texas below.

How Does Spousal Immunity Work in Texas?

So, what exactly does spousal immunity mean in the state of Texas? When your husband or wife is accused of a serious crime, there’s a good chance that their case will go to trial. In these situations, both the defense and prosecuting team may consider calling you to the witness stand to testify.

You may be asked about your husband or wife’s behavior during the marriage. You could be asked to verify where that person was on the night of the alleged crime(s). During all of the questioning, you’ll be under oath, which means you’re required by law to tell the truth. Lying on the witness stand is a criminal offense.

Obviously, this type of situation creates a massive conflict of interest for the spouse. That’s one reason why spousal immunity exists in the first place. Here are a few other big reasons why courtrooms in Texas still uphold spousal privilege in 2020:

• Advances in psychology show spouses suffer cognitive dissonance after a spouse’s arrest
• It protects the sanctity of marriage
• It’s an extension of the 5th Amendment (the right to be free from self-incrimination)
• It prevents the spouse from perjuring themselves either accidentally or on purpose

Here’s another important caveat – this spousal immunity and privilege belong exclusively to the spouse of the accused. If that spouse decides to voluntarily testify, then the accused spouse can’t prevent them from speaking in court.

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Exceptions to Spousal Immunity in Texas

Like most laws, there are exceptions to the spousal immunity privileges in Texas. Spousal immunity won’t apply to criminal cases that were committed against the non-defendant spouse. For instance, if the spouse suffered from domestic violence at the hands of the defendant, then the non-defendant spouse will need to testify. They won’t be granted spousal immunity.

Another exception is when the spouse is called to testify about things that happened either before they got married to their spouse or after they divorced them. Spousal immunity only applies for the duration of the marriage.

Does Spousal Immunity Apply to other Relationships?

Spousal immunity privilege was implemented to preserve the integrity and sanctity of marriage. For that reason, this type of immunity doesn’t extend to any other type of relationships. If you’re called to testify about a friend, sibling, parent or significant other that you’re not married to, then you’ll be obliged to.

Spousal immunity applies to common-law spouses only. By Texas law, that means the couple must be:

• Married by common law
• Living together
• A man and woman

 Same-sex couple marriages and LGBT couples may not be afforded spousal immunity in Texas courts, even when they’ve been living with each other for years. If you have specific questions about your rights as an LGBT couple in Texas, then it’s best to reach out to an attorney who can help.

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Should You Hire a Lawyer if You’re the Spouse of an Accused Criminal?

Typically, when you receive a subpoena in the mail, you’re obligated to provide testimony or evidence to the court. Spouses are afforded the special privilege of refusing to testify against their spouse.

When your loved one has been accused of a crime, it’s normal to experience a wide range of emotions. During this time, it can be difficult to make legal decisions like whether to testify or not. On top of all of this, your privacy has likely been reduced. Your name could be being posted by news outlets, and your private or business reputation may begin to suffer.

If you find yourself in this situation, then don’t hesitate to reach out to a lawyer who can help. Together, you and your attorney can decide if testifying during your spouse’s trial is right for you. If you choose not to, then your attorney will ensure that your spousal immunity privilege is upheld.

An attorney will also help you determine whether or not a divorce is the right choice for you. Keep in mind that spousal immunity may not apply anymore if you initiate a divorce prior to the trial. If you have questions about this type of scenario, then it’s best to consult with an attorney as soon as possible.

What You Need to Know About Your Rights

Is there ever a situation where you could be compelled by a Texas court to testify against your spouse? In most situations, spousal immunity will apply. You will have the choice of testifying or not.

Despite spousal immunity, there are some situations where the court can still compel you to testify. This includes situations that may have happened before you and your spouse got legally married.

If your spouse was accused of a crime, then it’s advised you seek out legal representation to protect your interests.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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