Privacy law — federal vs. Texas
The standard (federal) privacy law, and where Texas replaces, adds to, fills a gap in, or is limited by it. Click a topic to open the two statutes side by side, then pull the cases interpreting them. Federal privacy law is sectoral — there is no single comprehensive federal privacy statute — which is exactly why the states matter. Informational only, not legal advice.
Comprehensive consumer privacy ◆ Texas fills a gap
There is no comprehensive federal consumer-privacy statute — the FTC Act’s "unfair or deceptive practices" power (15 U.S.C. § 45) is the only general federal backstop. Texas enacted its own comprehensive law, the TDPSA. Notably it has no revenue threshold but exempts small businesses (by the U.S. SBA definition) — a Texas-specific twist. AG-enforced, with a 30-day cure period.
15 U.S.C. § 45Tex. Bus. & Com. Code Ch. 541Data-breach notification ◆ Texas fills a gap
There is no general federal data-breach-notification statute — only sector fragments (e.g. the HIPAA Breach Notification Rule). Texas supplies the general rule through its Identity Theft Enforcement and Protection Act, which carries BOTH the data-safeguard duty (§ 521.052) and the breach-notice requirement (§ 521.053) in the same chapter.
45 C.F.R. §§ 164.400–414 (HIPAA breach rule, health sector only)Tex. Bus. & Com. Code Ch. 521 (§§ 521.052, 521.053)Health / medical-records privacy ▲ Texas goes further
HIPAA is the federal floor for protected health information. Texas goes further: its Medical Records Privacy Act defines "covered entity" far more broadly — essentially anyone who obtains, stores, or uses PHI, not just HIPAA-covered entities and their business associates — and adds training and stricter consent duties.
Driver / motor-vehicle records = Texas parallels federal
The federal Driver’s Privacy Protection Act restricts disclosure of motor-vehicle records. Texas mirrors it at the state level with its Motor Vehicle Records Disclosure Act — a parallel scheme rather than an expansion.
Credit reporting ⊘ Federal preempts (state role limited)
The Fair Credit Reporting Act governs consumer credit reporting — and it expressly PREEMPTS much state credit-reporting law, so Texas’s role here is limited (mainly security-freeze mechanics under Bus. & Com. Code Ch. 20). This is the teaching contrast to the topics above: sometimes federal law leaves room for the state, and sometimes it takes it away. To dispute a credit error, the FCRA path (and the CFPB) is usually the operative one.
Tex. Bus. & Com. Code Ch. 20Marriage & family — the constitutional privacy of the home
Long before the Supreme Court spoke of a 'right to privacy' by name, it located marriage and family life inside the 'liberty' protected by the Fourteenth Amendment's Due Process Clause. Beginning with the right to raise and educate one's own children (Meyer, Pierce), the Court built a line of cases recognizing that the most intimate decisions a person makes -- whom to marry, whether and with whom to have children, how to raise them, and who counts as one's family under one roof -- belong to the individual and the family rather than the state. Marital privacy (Griswold), the freedom to marry across race (Loving) and for prisoners (Turner), the choice to use contraception whether married or not (Griswold, Eisenstadt), the right of an extended family to live together (Moore), a parent's authority over third-party visitation (Troxel), the liberty to conduct one's private intimate life (Lawrence), and the equal right of same-sex couples to marry (Obergefell) are all threads of this one tradition: that the family is a zone of protected liberty the government may enter only with strong justification. This is the constitutional half of the privacy stack -- liberty and autonomy in personal and family life -- as distinct from the statutory data-privacy protections paired elsewhere on this page.
Federalism: Marriage, divorce, custody, adoption, and other domestic-relations matters are traditionally state law: the Supreme Court has long recognized a 'domestic relations exception' keeping federal courts out of divorce, alimony, and custody decrees (Ankenbrandt v. Richards, 504 U.S. 689 (1992)), and family codes still differ substantially from one state to the next. Scholars have described American family law as functioning almost like a 'personal law' system, where the rules that govern a person's marriage and family vary by the jurisdiction they live in rather than being uniform nationwide (see Jeffrey A. Redding, Slicing the American Pie: Federalism and Personal Law, 40 N.Y.U. J. Int'l L. & Pol. 941 (2008), Part IV). But that state authority operates above a federal constitutional floor: the cases above establish liberty and equality guarantees -- the right to marry, to raise one's children, to family living arrangements, to marital and intimate privacy -- that no state may go below. The reach of that floor is now contested. In Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), the Court overruled Roe and Casey and returned abortion regulation to the states, and a concurrence urged reconsidering other substantive-due-process precedents; the majority stated its holding did not reach them. How far the substantive-due-process family rights collected here extend after Dobbs is therefore an open question. See the Ninth Amendment / penumbra and Dobbs entries elsewhere on this page for the doctrinal background, which this section does not repeat.
This material is constitutional and legal education, not legal advice. It summarizes published Supreme Court decisions in general terms and does not address the facts of any particular marriage, divorce, custody dispute, or family situation. Family and domestic-relations law is primarily state law and varies significantly by jurisdiction, and the constitutional landscape is actively evolving. For a specific situation, consult a licensed attorney in your state.
Testimonial & confidential privileges — who can refuse to testify, and the limits
The starting point of American evidence law is that 'the public has a right to every man's evidence' -- a court is entitled to compel testimony and documents from anyone who has relevant knowledge. Testimonial and confidential privileges are the narrow, disfavored exceptions carved out of that duty, justified only where the law decides some relationship or secret is worth protecting more than the truth-seeking it costs. In federal court, most privileges are not written into a statute at all: Federal Rule of Evidence 501 leaves them to be 'governed by the common law -- as interpreted by United States courts in the light of reason and experience,' except that in civil cases resting on state-law claims, state privilege law applies. Because they suppress relevant evidence, privileges are construed narrowly and every one of them has limits. This page maps who holds each privilege, what it covers, and -- just as important for the privacy stack -- where each one runs out.
Spousal testimonial privilege (adverse spousal testimony)
Who holds it: The witness-spouse alone. Under Trammel, the spouse called to testify decides whether to testify against the defendant-spouse in a criminal case; the defendant-spouse can no longer block that testimony. This overturned the older rule (Hawkins) that let the party-spouse veto the testimony.
Covers: The right of a person not to be compelled to give adverse testimony against their spouse in a criminal proceeding. It reaches any adverse testimony, not just confidential communications, but it exists only during a valid marriage and ends at divorce. Because the witness-spouse holds it, a willing spouse may testify freely.
Limits: Does not apply where the witness-spouse chooses to testify (Trammel); ends with the marriage; and does not shield a spouse who is the victim of the other spouse's crime -- a husband cannot bar his wife's testimony when she is the victim of the charged offense (Wyatt, a Mann Act prosecution). Courts also recognize exceptions for crimes against the couple's children and for joint criminal participation by both spouses.
Fed. R. Evid. 501 (federal privileges governed by common law); Trammel v. United States, 445 U.S. 40 (1980); Hawkins v. United States, 358 U.S. 74 (1958); Wyatt v. United States, 362 U.S. 525 (1960).
Marital confidential-communications privilege
Who holds it: Either spouse. Both the speaking and the listening spouse can invoke it to keep a private marital communication out of evidence; each can prevent the other from disclosing it.
Covers: Confidential communications made privately between spouses during a valid marriage -- what one spouse says to the other in the confidence of the marital relationship. Unlike the testimonial privilege, it survives the end of the marriage for communications made while it lasted, but it protects only communications, not observed acts or facts, and not statements made in the presence of third parties.
Limits: Reaches only communications intended to be confidential; not conduct, observations, or anything said in front of others (Trammel noted the wife could testify to acts she observed and to communications made in a third party's presence). Standard exceptions apply for crimes against the other spouse or the children and for communications in furtherance of joint criminal activity by the spouses.
Fed. R. Evid. 501; the marital confidential-communications privilege as recognized at federal common law and distinguished in Trammel v. United States, 445 U.S. 40 (1980).
Clergy-penitent privilege (priest-penitent / seal of confession)
Who holds it: The penitent -- the person who made the confidential communication -- holds the privilege; by most statutes the member of the clergy may also assert it on the penitent's behalf, and cannot be examined about the communication without the penitent's consent. The 'seal of confession' is the clergy member's own religious duty of secrecy.
Covers: Confidential communications made privately to a member of the clergy acting in a spiritual or professional capacity -- classically the Catholic sacrament of confession, but by statute extending to ministers, rabbis, imams, and other spiritual advisers. It protects the penitent's disclosure from compelled testimony.
Limits: Applies only to communications made in the clergy member's spiritual/professional role and intended to be confidential; casual conversation or advice sought in a non-spiritual capacity is not covered. Exact scope, and how it interacts with mandatory child-abuse-reporting laws, is defined by each state's statute and varies. It does not authorize the government to intrude on the confessional itself: in Mockaitis, secretly recording a jailhouse confession was held unlawful.
Fed. R. Evid. 501 (common-law status); near-universal state clergy-penitent statutes; Trammel v. United States, 445 U.S. 40 (1980) (dicta); Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997).
State-secrets privilege (and the Totten bar)
Who holds it: The government -- and only the government. It is an executive-branch privilege, formally asserted by the head of the department with control over the matter after actual personal consideration, and the court then decides whether the privilege is properly invoked.
Covers: Evidence whose disclosure would harm national security -- military and state secrets. When properly invoked and sustained, the evidence is excluded entirely and no substitute is required, even if that leaves a private litigant unable to prove a claim. The related Totten bar goes further: a lawsuit whose very subject matter is a secret espionage relationship with the government cannot be maintained at all.
Limits: This privilege is unusual because it cuts against private parties rather than protecting them: it can gut or dismiss a plaintiff's case (Reynolds) or bar the suit outright (Totten). But it belongs to the government alone, must be formally and personally invoked by a responsible official, and is subject to judicial review -- the court must satisfy itself, without forcing disclosure of the very secret at issue, that there is a reasonable danger the evidence would expose military matters that should not be divulged. It is not a general shield for government embarrassment.
United States v. Reynolds, 345 U.S. 1 (1953); Totten v. United States, 92 U.S. 105 (1875); the executive state-secrets privilege recognized at federal common law, alongside the separate statutory/classified-information framework (e.g., the Classified Information Procedures Act) that governs classified material in criminal cases.
Attorney-client privilege and the work-product doctrine
Who holds it: The client holds the attorney-client privilege (an organization's privilege is controlled by its management, and for a corporation is not limited to a narrow 'control group'). The work-product protection belongs primarily to the attorney (and the client) as to materials prepared in anticipation of litigation.
Covers: Attorney-client privilege protects confidential communications between a client and lawyer made to obtain or give legal advice. In the corporate setting it reaches communications from employees beyond top management when made to counsel to enable legal advice (Upjohn). The separate work-product doctrine (Hickman; now Fed. R. Civ. P. 26(b)(3)) shields materials an attorney prepares in anticipation of litigation, with especially strong protection for the lawyer's mental impressions, opinions, and legal theories.
Limits: Protects communications, not the underlying facts, and only confidential ones made for legal advice. The crime-fraud exception withdraws the privilege where the client sought the lawyer's help to commit or further a crime or fraud (Zolin), and a court may review the communications in camera to decide if the exception applies. Work-product protection is qualified (ordinary work product yields on a showing of substantial need and undue hardship). But the privilege does survive the client's death (Swidler & Berlin).
Fed. R. Evid. 501; Fed. R. Civ. P. 26(b)(3) (work product); Upjohn Co. v. United States, 449 U.S. 383 (1981); Hickman v. Taylor, 329 U.S. 495 (1947); United States v. Zolin, 491 U.S. 554 (1989); Swidler & Berlin v. United States, 524 U.S. 399 (1998).
Reporter's / press privilege (confidential sources)
Who holds it: Claimed by the reporter or news organization. Critically, the Supreme Court has held there is no First Amendment reporter's privilege to refuse grand-jury testimony -- so in federal court any protection comes from lower-court interpretations of a qualified privilege or, in the states, from statutory shield laws, not from a constitutional right.
Covers: The asserted right of a journalist to refuse to reveal confidential sources or unpublished information. The Supreme Court rejected it as a First Amendment matter in the grand-jury context; many states and some lower federal courts nonetheless recognize a qualified privilege (often modeled on Justice Stewart's dissent) that can be overcome by a sufficient showing, and most states have enacted shield laws giving reporters statutory protection.
Limits: There is no federal constitutional privilege and no general federal shield law: under Branzburg a reporter, like any citizen, must answer a grand jury's relevant questions about crimes he witnessed. Any qualified privilege recognized by lower courts can be defeated by a strong enough governmental showing of relevance, need, and unavailability of alternatives. State shield laws vary widely in who and what they cover and often contain their own exceptions.
U.S. Const. amend. I; Branzburg v. Hayes, 408 U.S. 665 (1972) (no federal constitutional reporter's privilege in the grand-jury context; Stewart, J., dissenting, proposing a three-part qualified-privilege test; Powell, J., concurring). No general federal shield statute exists; most states have enacted their own shield laws.
No privilege is absolute: None of these privileges is absolute. Each has a defined holder, a defined scope, and defined exits: the spousal testimonial privilege ends when the witness-spouse chooses to talk and does not protect a spouse or child who was the victim; the marital and clergy privileges reach only genuinely confidential communications and yield to abuse-reporting and crime exceptions; the attorney-client privilege falls to the crime-fraud exception and never covers legal help sought to commit a future crime; the state-secrets privilege belongs to the government and can be used to defeat a private claimant's case rather than to protect an individual; and the reporter's privilege is not a federal constitutional right at all. Privileges can also be waived -- by voluntary disclosure, by putting the protected communication at issue, or by failing to assert them. Because the default is that everyone must give relevant evidence, a privilege protects only what it clearly covers, and only until one of its limits is reached.
This material is legal education, not legal advice. It summarizes published court decisions, the Federal Rules of Evidence, and general privilege doctrine in broad terms and does not address the facts of any particular case. Privilege law differs between federal and state courts and varies significantly from state to state -- especially clergy-penitent scope, reporter shield laws, and the marital privileges -- and privileges can be waived or lost through conduct. Whether a communication is privileged in a specific situation, and how to preserve or assert a privilege, depends on the applicable jurisdiction's law; consult a licensed attorney in your jurisdiction.
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