Mechanism 15
The business-records affidavit that holds
What does a business-records affidavit have to say to be admissible in Texas?
Custodian or other qualified witness, personal knowledge, made at or near the time by someone with knowledge, kept in the regular course of a regularly conducted activity, and making the record was a regular practice. Serve the records and the affidavit on every other party at least fourteen days before trial and they authenticate themselves. On a contract or account case this is the entire evidentiary case.
By John P. Henry · Tex. R. Evid. 902(10), 803(6) · Reviewed 2026-08-02
The authority
The proponent must serve the record and the accompanying affidavit on each other party to the case at least 14 days before trial.Tex. R. Evid. 902(10)(A)
Tex. R. Evid. 902(10), 803(6)
When it applies
Every summary judgment on a written instrument, every default prove-up, every suit on an account. It is the mirror image of the entries on striking the other side’s declaration — the same defects, read from the other chair.
How it is proved up
- Serve it, and calendar the service date. It is a service requirement, not a filing requirement — the filing requirement was removed in 2014, and lawyers still file and forget to serve.
- Do not copy the rule’s sample language and stop. Rule 902(10)(B) says in terms that the form is not exclusive; what matters is that every element of Rule 803(6) is actually stated about these records by this witness.
- An unsworn declaration under penalty of perjury works. There is no need to find a notary on a deadline.
- Attach the records the affidavit describes, in the order it describes them, and number the pages. An affidavit that refers to invoices not in the exhibit proves nothing.
- Have the custodian say how the records are made and kept, not merely that they are. The conclusory version is what gets struck.
What defeats it
- Service later than fourteen days before trial, unless the court finds good cause — the rule does contain that safety valve, and it is worth knowing before conceding the point.
- A custodian who cannot say the records were made at or near the time by a person with knowledge.
- Documents created for the litigation rather than in the regular course, which are not business records however they are labelled.
- Records of a different entity, received and filed but not integrated — the affidavit has to reach how the sponsoring business relies on them.
Where I have used it
Throughout a high-volume contract docket where the client’s custodian signed a records affidavit attaching the contract and the full invoice history, with a separate pre-judgment interest calculation. In a defended file in the Bexar County courts the summary judgment motion had four exhibits, and the records affidavit did all the work in three of them.
Questions
How many days before trial must a business-records affidavit be served in Texas?
At least 14 days, under Tex. R. Evid. 902(10)(A). It must be served on each other party; the requirement that it also be filed with the clerk was deleted in 2014.
Does a business-records affidavit have to follow the exact form in the rule?
No. Rule 902(10)(B) provides sample language and states that the form is not exclusive. What matters is that the affidavit establishes the Rule 803(6) elements. An unsworn declaration made under penalty of perjury may be used instead of an affidavit.
Can a business-records affidavit be used on summary judgment?
Yes, and it is the ordinary way documents are proved on a motion. The affidavit authenticates the records and removes the hearsay objection, which is why a defective one takes the entire damages proof with it.