Texas Rule of Evidence 505, its clergy privilege, provides in pertinent part that “[a] communicant has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication by the communicant to a clergy member in the clergy member’s professional capacity as spiritual adviser.” Meanwhile, N.C. GEN. STAT. § 8–53.2 provides that “No priest, rabbi, accredited Christian Science practitioner, or a clergyman or ordained minister of an established church shall be competent to testify in any action, suit or proceeding concerning any information which was communicated to him and entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted, provided, however, that this section shall not apply where communicant in open court waives the privilege conferred.”
Facially, these seem similar, but there might be a key difference between the two that had an important impact in a murder trial. In Campbell v. State, 2025 WL 1958110 (Tex. App. 2025),
A jury convicted Corey Lewis Campbell of murdering Darlene Solis, a Houston-area woman he was dating. The State presented evidence that Campbell fatally shot Solis during an argument, fled to his mother’s home in North Carolina, and then admitted to Solis’s murder in a telephone call with the bishop of his mother’s church.
The location of that call was critical to the court’s conclusion. Specifically, “[u]nder North Carolina law, the presence of Campbell’s mother on the call destroys the privilege because a communicant cannot ‘expect confidentiality when the disclosures [to clergy] are made in the presence of a third party.” As a result, the bishop was allowed to testify to Campbell’s confession.
Yesterday, the Court of Criminal Appeals of Texas denied discretionary review to Campbell, with Justice Yeary dissenting from that denial. Justice Yeary thought that Texas Rule of Evidence 505, should have governed the issue and noted that
Applying a different state’s law or rule can have a massive impact on the outcome of cases. For example, our Texas rule for clergy communications contemplates a situation in which another person may be “present to further the purpose of the communication[,]” but North Carolina law does not. Tex. R. Evid. 505(a)(3).1 In this case, Appellant’s mother appears to have been present during the call between Appellant and the bishop when Appellant made the statements at issue. Under Texas Rule of Evidence Rule 505(a)(3), Appellant’s mother’s presence might not serve to preclude Appellant from asserting the clergy-communicant privilege. It is therefore conceivable that, if the Texas Rule had been applied, Appellant might have been able to prevent the bishop from testifying.
Personally, I don’t know why the presence of a family member should sever the privilege in any state. If a defendant goes to his attorney with his mother to discuss his case, attorney-client privilege still applies. Why shouldn’t the same apply to the clergy privilege?