When your case goes to trial in Texas, you will have the chance to call witnesses on your behalf, but the prosecution will also call witnesses. There are some rules about who the prosecution may call that could affect you if you have a spouse at the time of the incident. Specifically, Rule 504, according to the Texas Judicial Branch, may offer your spouse the right to not testify against you.
Many people mistakenly think that Rule 504 gives complete immunity from testifying against a spouse, but that is not true. There are exceptions to the rule and details of the law that may not give you as much protection as you thought against your spouse testifying.
The right to not testify against your spouse in court comes from the state recognizing that private communication between spouses is confidential. This does require that the interaction occurs during your marriage, but it does not matter what your current marital status is.
This privilege means that the prosecution may not call your spouse to testify against you. However, you can call your spouse to testify on your behalf. Do be aware, though, if you do this, the prosecutor may then question him or her.
When it does not apply
The spousal privilege does not always apply. You cannot use it if it enables or helps someone plan or commit a crime; in cases of crimes against a child, member of household or spouse; in bigamy cases; or during incompetence hearings.
If you want your spouse to use his or her privilege, you do not have to do anything because the prosecutor should already understand Rule 504. If you have serious concerns about what your spouse may have to divulge if he or she goes on the stand, then you may want to consider not calling your spouse to testify on your behalf. This will help ensure that the information he or she has stays protected.