§ 18.061.Communications of Sympathy

The Texas apology statute, and the line it draws is precise.

A court may not admit a communication that expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident, that is made to the individual or a person related within the second degree by consanguinity or affinity, and that is offered to prove liability of the communicator.

All three conditions must hold. A sympathetic statement made to a stranger, or offered for a purpose other than proving liability, is outside the section.

"Communication" is broad — a statement, a writing, or a gesture that conveys a sense of compassion or commiseration emanating from humane impulses. A hand on the shoulder is covered.

Subsection (c) is the limit, and it is where the section is usually decided. Notwithstanding the exclusion, a communication which also includes a statement concerning negligence or culpable conduct pertaining to the accident is admissible to prove liability — and the subsection names the excited utterance under Rule 803(2) expressly.

So Texas protects "I am so sorry this happened to you" and does not protect "I am so sorry, I never saw the light." The second sentence carries an admission, and the sympathy around it does not shelter it.

The provision exists so that ordinary human decency after an accident is not a litigation risk. It does not create a safe harbour for admitting fault.