(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
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(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
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(2) refuses to testify about the subject matter despite a court order to do so;
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(3) testifies to not remembering the subject matter;
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(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
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(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance or testimony. But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
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(1) Former Testimony. Testimony that:
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- (A) when offered in a civil case:
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- (i) was given as a witness at a trial or hearing of the current or a different proceeding or in a deposition in a different proceeding; and
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- (ii) is now offered against a party and the party—or a person with similar interest—had an opportunity and similar motive to develop the testimony by direct, cross-, or redirect examination.
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- (B) when offered in a criminal case:
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- (i) was given as a witness at a trial or hearing of the current or a different proceeding; and
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- (ii) is now offered against a party who had an opportunity and similar motive to develop it by direct, cross-, or redirect examination; or
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- (iii) was taken in a deposition under—and is now offered in accordance with—chapter 39 of the Code of Criminal Procedure.
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(2) Statement Under the Belief of Imminent Death. A statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
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(3) Statement of Personal or Family History. A statement about:
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- (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
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- (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.