1. law, govt and politics

ARTICLE II: JUDICIAL NOTICE
Commentary by Murl A. Larkin"
1993 Update by Cathleen C. Herasimchuk
According to Professor Thayer, l judicial notice is one of
the oldest doctrines of the common law and is traceable to two
ancient maxims: manifesta non indigent probatione (that which
is known need not be proved) and non refert quid notum sit
judici, si notum non sit in forma judicii (it matters not what is
known to a judge if it is not known in judicial form). 2 The
former, according to Thayer, existed so far back that it may be
"coeval with legal procedure itself."3
The concept of judicial notice is often considered an exception to the modern doctrine that the trier of fact must determine all factual questions on the basis of formal proof. More
likely, however, judicial notice is the pillar around which the
modern doctrine was constructed. In any event, judicial notice
authorizes the factfinder, under the guidance of the trial judge,
to accept the truth of certain facts without the necessity of
formal proof.4
The principal purpose served by judicial notice is to promote judicial efficiency by avoiding the expenditure of time
and effort involved in adducing unnecessary evidence.5 In ef-
•
Professor of Law Emeritus, Texas Tech University School of Law. Member,
State Bar Liaison Committee on Rules of Evidence.
1. James Bradley Thayer was the Weld Professor of Law at Harvard University in the latter years of the 19th century. JAMES B. '!'HAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAw at v (Boston, Little, Brown, and Company
1898).
2. [d. at 277. Both maxims are traceable to Bracton's Note Book and cases
from the 13th Century. [d. at 13 n.1, 277 nn.1-2.
3. [d. at 277.
4. See GRAHAM C. LILLY, AN INTRODUcrlON TO THE LAw OF EVIDENCE § 7, at
13 (1978); MCCORMICK ON EVIDENCE § 328, at 919-20 (Edward W. Cleary ed., 3d ed.
1984); 9 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAw § 2565, at 694
(Chadbourn ed. 1981).
5. See James v. State, 546 S.W.2d 306, 310 {Tex. Crim. App. 1977) (stating
that "[t]he whole purpose of the rule of judicial notice is one of convenience to save
time in the trial by eliminating the need for proof of facts about which there is
really no controversy"); Skinner v. HCC Credit Co., 498 S.W.2d 708, 711 {Tex. Civ.
App.-Fort Worth 1973, no writ) (noting that "judicial notice is founded on expedien~ and convenience adopted to save time in the trial of controversies"); see also Ex
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fect, "judicial notice spares the expense of proof.»6 Not only is
the proponent of the judicially noticed fact relieved of the burden of presenting evidence attesting to that fact, 7 but also
once judicial notice has been taken, the party against whom
the noticed fact operates is, at least under the traditional view
in civil cases, prohibited from challenging the veracity of that
fact. s Because judicial notice saves significant time--and
avoids the "cumbrous process of formal proof,,,g several legal
scholars argue that the use of the doctrine should be expanded. to However, in view of the significant potential for abuse
and consequent injury or unfairness to the party against whom
a noticed fact would operate, the doctrine of judicial notice has
developed slowly. The most prevalent limitation requires that
judicial notice be confined to facts which are of common knowledge or of readily verifiable certainty.11 Texas courts generally
recognized this limitation prior to the adoption of the Texas
Rules of Evidence. 12
Article II of the Texas Rules contains four rules. Rule 201,
when the civil and criminal versions are combined, is a verba-
parte Turner, 612 S.W.2d 611, 612 (Tex. Crim. App. 1981) (stating that judicial notice can be a "proper conservation of judicial time and energy"). But see E.F. Roberts, Preliminary Notes Toward a Study of Judicial Notice, 52 CORNELL L.Q. 210,
219 (1967) (arguing that if the opponent can introduce controverting evidence of
judicially noticeable facts, then those facts become another "litany sung to judicial
notice").
6. STEPHEN A. SALTZBURG & KENNETH R. REDDEN, FEDERAL RULES OF. EVIDENCE MANuAL 61 (4th ed. 1986).
7. See Fender v. St. Louis S.W. Ry., 513 S.W.2d 131, 134 (Tex. Civ. App.-Dal·
las 1974, writ refd n.r.e.) (stating that "[j]udicial notice eliminates the necessity for
taking evidence by the usual procedures"), cerl. denied, 421 U.S. 913 (1975); Texas
Sec. Corp. v. Peters, 463 S.W.2d 263, 265 (Tex. Civ. App.-Fort Worth 1971, no
writ) (citing numerous cases which hold that a litigant is not required to prove judicially noticed facts).
8. Such challenges are prohibited because "judicial notice implies the absolute
truth of the fact known, and such fact being undisputed, its effect becomes [a] matter of law." Harper v. Killion, 162 Tex. 481, 484, 348 S.W.2d 521, 522 (1961) (quoting Reynolds v. McMan Oil & Gas Co., 11 S.W.2d 778, 784 (Tex. Comm'n App.
1928, holding approved)).
9. CHARLES T. MCCoRMICK, HANDBOOK OF THE LAw OF EVIDENCE § 323, at 687
(1st ed. 1954) [hereinafter MCCORMICK'S HANDBOOK I].
10. See MCCORMICK ON EVIDENCE, supra note 4, § 332, at 930-31; THAYER, supra note 1, at 309; 9 WIGMORE, supra note 4, § 2583, at 819 (terming judicial notice
as "an instrument of a usefulness hitherto unimagined by judges").
11. MCCORMICK ON EVIDENCE, supra note 4, §§ 329-330, at 922-27.
12. See, e.g., Barber v. Intercoast Jobbers & Brokers, 417 S.W.2d 154, 157 (Tex.
1967) (finding that facts are judicially noticeable if they are "certain and indisputable" or of "verifiable certainty").
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tim adoption of Rule 201 of the Federal Rules; Rule 202 is a
revised version of former Rule 184a of the Texas Rules of Civil
Procedure;13 Rule 203 is a significantly expanded version of
Rule 44.1 of the Federal Rules of Civil Procedure, which is
substantially the same as Rule 26.1 of the Federal Rules of
Criminal Procedure; and Rule 204 is a new, but salutary, addition to Texas law which has no specific federal analogue.
While the Federal Rules deal only with judicial notice of adjudicative facts, the Texas provisions deal both with adjudicative
facts and law. Texas Civil Rule 201 differs from Federal Rule
201 only to the extent that subdivision (g) of the former contains no criminal-applicability language. Similarly, the criminal
rule is the same as the federal version except for deleting the
sentence in subdivision (g) regarding jury instructions in civil
actions. Because the Texas Rules are otherwise identical to
their federal counterpart, the intention was to retain the identical meaning encompassed by the Federal Rules. 14 Additionally, because Civil and Criminal Rules 202 through 204 are
similar, decisions rendered under them are generally applicable
in both civil and criminal proceedings.
13. Rule 184a was added to the Texas Rules of Civil Procedure by an order
dated June 16, 1943, and was first amended on October 10, 1945. The rule was
amended again in 1984 and renumbered as Rule 184. A new Rule 184a, DETERMINATION OF THE LAws OF FOREIGN COUNTRIES, was added to the Rules of Civil Procedure in 1984. Both rules were amended once more in 1988 to conform with Civil
Rules 202 and 203. Both rules were repealed effective September I, 1990 because
the material is covered by Civil Rules 202 and 203. Changes to Texas Rules of Civil
Procedure, Texas Rules of Appellate Procedure, and Texas Rules of Civil Evidence, 53
TEx. B.J. 589, 600 (1990).
14. See, e.g., Bodin v. State, 807 S.W.2d 313, 317 (Tex. Crim. App. 1991) (noting
that "[g]enerally the Texas Rules of Criminal Evidence were patterned after the
Federal Rules of Evidence. Cases interpreting federal rules should be construed for
guidance with regard to the Texas Evidence Rules, unless the Texas rule clearly
departs from its federal counterpart"); Montgomery v. State, 810 S.W.2d 372, 376
(TeL Crim. App. 1990) (recommending that "when the Texas Rule duplicates the
Federal Rule, greater than usual deference should be given to the federal court's
interpretations"); cf. Campbell v. State, 718 S.W.2d 712, 716-17 (Tex. Crim. App.
1986) (asserting that the intention in adopting the language of Federal Rule
801(dX1)(B) for Criminal Rule 801(eX1)(B) was to adopt the interpretation of the
former as well); Rodda v. State, 745 S.W.2d 415, 418 (Tex. App.-Houston [14th
Dist.] 1988, pet. refd) (stating that Civil Rule 403 was patterned after its federal
counterpart and that while "Texas courts are not bound by lower federal court decisions, in order to advance the harmony in judicial construction of the rules of evidence, greater than usual deference should be given to the construction of the federal rules by the federal courts").
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RULE 201
JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a) Scope of Rule. [civil and criminal rule] This rule
governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. [civil and criminal rule] A judi-
cially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
(c) When Discretionary. [civil and criminal rule] A
court may take judicial notice, whether requested or not.
(d) When Mandatory. [civil and criminal rule] A
court shall take judicial notice if requested by a party and
supplied with the necessary information.
(e) Opportunity to Be Heard. [civil and criminal
rule] A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial
notice and the tenor of the matter noticed. In the absence
of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. [civil and criminal rule]
Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. [civil rule] The court shall instruct the jury to accept as conclusive any fact judicially
noticed.
(g) Instructing Jury. [criminal rule] The court shall
instruct the jury that it may, but is not required to, accept
as conclusive any fact judicially noticed.
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Commentary to Rule 201
Rule 201(a): Scope of the Rule
Matters that may be judicially noticed are often divided
into three categories: adjudicative facts, legislative facts, and
law. 15 These categories are important because different rules
apply to each. Adjudicative facts are "those to which the law is
applied in the process of adjudication."16 These facts normally
go to the trier of fact. 17 "They relate to the parties, their activities, their properties, their businesses."18 In other words,
"[w]hen a court or an agency finds facts concerning the immediate parties-who did what, where, when, how, and with
what motive or intent-the court or agency is performing an
adjudicative function, and the facts are conveniently called
adjudicative facts."19
In contrast, legislative facts are "those which help the
tribunal to determine the content of law and policy and to
exercise its judgment or discretion in determining what course
of action to take. Legislative facts are ordinarily general and
do not concern the immediate parties."20 Legislative facts include, for example, information concerning the impact of prior
and proposed law used to facilitate lawmaking through judicial
decisions, information concerning the legislative history of a
statute used to assist in its interpretation, and information
respecting the basis for the exercise of legislative power used
to enable a court to fulfill its constitutional responsibility.21
15. Professor Kenneth Davis flX'St suggested that judicially noticed facts should
be categorized as either adjudicative or legislative. Kenneth C. Davis, An Approach
to Problems of Evidence in the Administrative Process, 55 HARv. L. REV. 364, 402
(1942). The substantive-law-determination function of the judge, at least as to domestic law, has traditionally been described as judicial notice of law. MCCORMICK ON
EVIDENCE, supra note 4, § 335, at 938.
16. Kenneth C. Davis, Judicial Notice, 55 COLUM. L. REV. 945, 952 (1955).
17. fd.
18. fd.
19. FED. R. EVID. 201 advisory committee's note, subdiv. (a).
20. Davis, supra note 16, at 952. Professor Davis explained the rationale for
judicial use of legislative facts:
In the great mass of cases decided by courts and by agencies, the legislative
element is either absent, unimportant, or interstitial, because in most cases
the applicable law and policy have been previously established. But whenever a tribunal is engaged in the creation of law or of policy, it may need to
resort to legislative facts, whether or not those facts have been developed on
the record.
fd.
21. JACK B. WEINSTEIN ET AL., NEW YORK CIVIL PRACTICE 'lI 4511.01 (1981); see
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Judicial notice of legislative facts is ordinarily limited only by
the court's own sense of propriety.22 This view renders any
limitation inappropriate as to the indisputability of the facts
and any formal requirements of notice or findings of facts. 23
According to Professor Davis, "judge-made law would stop
growing if judges, in thinking about questions of law and policy, were forbidden to take into account the facts they believe,
as distinguished from facts which are 'clearly ... within the
domain of the indisputable.'''24
The judicial function of determining law is traditionally
characterized as within the concept of judicial notice. 25 "Law"
includes, of course, not only the law of the forum26 but also
the law of sister states27 and foreign countries. 28 When the
content or applicability of law of the forum is to be noticed,
the judge is unrestricted in his investigation and conclusion.
He may reject the propositions of either party or of both parties. He may consult the sources of pertinent data to which
they refer, or he may refuse to do so. He may make an independent search for persuasive data or rest content with what
he has or what the parties present. 29
When other than domestic law is involved, determination of the
law is generally considered a question of fact, which is subject
to the requirements of formal pleading and proof. 30 Regardless
of the type of law to be determined, the requirements of general knowledge or indisputability are inapplicable.
Federal Rule 201 is expressly limited to adjudicative facts
also MCCORMICK ON EVIDENCE, supra note 4, § 331, at 928 (finding that the three
principal purposes for taking judicial notice of legislative facts are 1) to decide upon
the constitutional validity of a statute, 2) to interpret a statute, and 3) to extend or
restrict a common law rule).
22. WEINSTEIN ET AL., supra note 21, 'll 4511.01.
23. FED. R. EVID. 201 advisory committee's note, subdiv. (a); see Warren F.
Schwartz, A Suggestion for the Demise of Judicial Notice of "'Judicial Facts,· 45 TEx.
L. REv. 1212, 1212 (1967) (noting that such facts "'can better be explored by the
judge free of the limitations imposed by the rules of evidence").
24. Kenneth C. Davis, A System of Judicial Notice Based on Fairness and Convenience, in PERSPECTIVES OF LAw 69, 82 (Roscoe Pound et al. eds.,-1964).
25. See MCCORMICK ON EVIDENCE, supra note 4, § 335, at 938 (classifying judicial notice of law as a subsection of judicial notice).
26. [d. § 335, at 938-39.
27. [d. § 335, at 940.
28. State practice regarding judicial notice of foreign law is not, however, uni·
fied. [d. § 335, at 942-43.
29. Edmund M. Morgan, Judicial Notice, 57 HARV. L. REv. 269, 270 (1944).
30. MCCORMICK ON EVIDENCE, supra note 4, § 335, at 938.
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and thus does not attempt to control or affect judicial notice of
legislative facts or law.31 According to the Advisory
Committee's note on Federal Rule 201, the omission of any
treatment of legislative facts was due to the fundamental differences between adjudicative facts and legislative facts. 32 An additional unarticulated reason was undoubtedly that the rule
was unnecessary because substantially no problems had been
encountered with judicial notice of legislative facts. 33 The Advisory Committee did not comment on why it made no attempt
to cover judicial notice of law but did mention that judicial
notice of foreign law was expressly covered by rules of federal
criminal and civil procedure.34
Although Texas courts have long utilized judicial notice in
all three categories, they have not frequently found it necessary
to identify and categorize judicial notice of legislative facts. 35
31. FED. R. EVID. 201 advisory committee's note, subdiv. (a). Rule 44.1 of the
Federal Rules of Civil Procedure and Rule 26.1 of the Federal Rules of Criminal
Procedure, which remained intact after the Federal Rules were enacted, deal with
judicial notice of matters of foreign law.
32. Id.
33. Although a large number of decisions, particularly those of the Supreme
Court, involve the consideration by judges of matters outside the record of a societal,
economic, sociological, or historical nature, relatively little judicial recognition is given to the notion that these decisions are a form of judicial notice. See, e.g., Turner v. United States, 396 U.S. 398, 407 (1970) (finding that the possession of heroin
is equivalent to the possession of imported heroin because heroin is not produced in
the United States). Judicial notice of legislative facts is particularly prevalent in
Supreme Court death penalty jurisprudence. See Ford v. Wainwright, 477 U.S. 399,
407·10 (1986) (relying upon common law principles, religious postulates, and state
statutes in concluding that the execution of insane individuals is unconstitutional);
Gregg v. Georgia, 428 U.S. 153, 168-87 (1976) (relying upon historical treatises, leg·
islative enactments, statistical studies, and law review articles in determining that
the death penalty is not always "cruel and unusual" punishment).
A substantial attempt has not been made to regulate such action. Restrictions
in this area deal principally with the use of extrinsic aids, such as the opinion of a
statute's author and debates and discussions on the floor of the legislature, in the
interpretation of legislative enactments. See Dellmuth v. Muth, 491 U.S. 223, 230
(1990) (stating that there is no need to refer to the legislative history of a statute if
Congress' intention is unmistakably clear in the language of the statute); United
States v. James, 478 U.S. 597, 606 (1986) (noting that judicial inquiry is complete
when the terms of a statute are unambiguous); see also William N. Eskridge, Jr.,
The New Textualism, 37 UCLA L. REv. 621, 623 (i990) (stating that the new
textualism proposes that legislative history is irrelevant if the Supreme Court has
determined a statute's plain meaning); c{. Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437, 444-45 (1987) (holding that absent explicit statutory direction, the
legislative intent evidenced by the detailed treatment of litigant's fees in 28 U.S.C.
§§ 1821 and 1920 controls the taxation of the litigant witness expenses).
34. FED. R. EVID. 201 advisory committee's note, subdiv. (a); see FED. R. CIV. P.
44.1; FED. R. CRIM. P. 26.1.
35. In one pre-Rules case, the Texas Court of Criminal Appeals noted that it
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By far, the greatest number of decisions are in the category of
adjudicative facts, thus indicating that this area is in need of
codification. In the category of judicial notice of law, the Texas
Supreme Court found it advisable to define the scope of judicial
notice of the law of every other state, territory, or jurisdiction
of the United States in the Rules of Civil Procedure. 36 Beyond
this scope, however, the doctrine is controlled by individual
decisions.
One category of knowledge that is not within the concept of
adjudicative facts and that is not subject to the limitations of
judicial notice under Rule 201 is what the Federal Advisory
Committee often refers to as "non-adjudicative facts"37 or "nonevidence facts."38 These terms refer to the very basic, generalized knowledge that the average factfinder possesses regarding
mankind, human affairs, and the environment in which we live
and that must be utilized without formal notice in drawing
inferences, evaluating evidence, judging the credibility of witnesses, and interpreting what is seen and heard from the witness stand. 39 These subjects are common reasoning facts that
could not take judicial notice of a local ordinance as an adjudicative fact, but stated
that it could "notice the existence of these ordinances as a social, or 'legislative fact,'
helpful in the resolution" of a constitutional question. Chapa v. State, 729 S.W.2d
723, 728 n.3 (Tex. Crim. App. 1987). For a case in which the court apparently considered legislative facts to determine whether to re·examine an earlier holding, see
Mitchell v. Town of Refugio, 265 S.W.2d 261, 267 (Tex. Civ. App.-San Antonio
1954, writ refd). The Mitchell court commented that "fj]udicial knowledge of a court
may, of course, extend beyond the personal knowledge of the judges making up the
court and, as a practical matter, information in the nature of evidence is received in
order to enable a court to intelligently make use of its judicial knowledge." IeL; see
also Lanes v. State, 767 S.W.2d 789, 798·800 (Tex. Crim. App. 1989) (relying upon
sociological studies and statistical reports to conclude that the present·day juvenile
justice system is a failure and holding that the probable cause requirement appli·
cable to adult suspects is equally applicable in juvenile proceedings); EI Chico Corp.
v. Poole, 732 S.W.2d 306, 310-11 (Tex. 1987) (using out-of-state judicial decisions and
statutes as persuasive authority in deciding to extend common law wrongful death
liability to liquor licensees who negligently sell beverages to persons who subse·
quently cause a death by driving while intoxicated).
36. Tex. R. Civ. P. 184 (West 1990) (formerly Tex. R. Civ. P. 184a). Refer to
note 13 supra.
37. FED. R. EVID. 201 advisory committee's note, subdiv. (a).
38.
Id.
39. For example,
[w]hen a witness in an automobile accident case says "car," everyone, judge
and jury included, furnishes, from non-evidence sources within himself, the
supplementing information that the "car" is an automobile, not a railroad
car, that it is self·propelled, probably by an internal combustion engine, that
it may be assumed to have four wheels with pneumatic rubber tires, and so
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are "imputed to judges and juries as part of their necessary
mental outfitoo4O which cannot possibly be introduced into evidence and, because of their multiplicity and fundamental nature, are not appropriate subjects for formalized judicial notice.41 Texas courts have long recognized this notion. 42 The
on.
FED. R. EVID. 201 advisory committee's note, subdiv. (a). Professor McCormick refers
to this information as "the residual data the jury members bring along with them as
rational human beings: MCCORMICK'S HANDBOOK OF THE LAw OF EVIDENCE § 329, at
762 (Edward W. Cleary ed., 2d ed. 1972) [hereinafter MCCORMICK'S HANDBOOK II).
Other authority states that this information is based upon the general experience
that the factf"mder possesses "in common with the generality of mankind." R.T.K.,
Annotation, Propriety of Instructions on Matters of Common Knowledge, 144 A.L.R.
932, 932-33 (1943); see also Kroger Grocery & Baking Co. v. Woods, 167 S.W.2d 869,
871 (Ark. 1943) (stating that "[j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life"). See
generally A. Leo Levin & Robert J. Levy, Persuading the Jury with Facts Not in Evidence: The Fiction-Science Spectrum, 105 U. PA. L. REv. 139 (1956) (discussing the
competing forces of common-sense, knowledge, fairness, and admissibility in the content and presentation of evidence). In City of Houston v. Federal Aviation Administration, the Fifth Circuit Court of Appeals rejected a challenge to FAA regulations that
"no rational basis connects the FAA's goals-to protect Dulles and to preserve the
short-haul status of National-to the means it has adopted." 679 F.2d 1184, 1191 (5th
Cir. 1982). The court noted that "[h]aving traveled through these two airports, we
may take judicial notice of their problems of under- and over-use: Id.
40. THAYER, supra note 1, at 280.
41. FED. R. EVID. 201 advisory committee's note, subdiv. (a).
42. For example, the Texas Supreme Court in El Chico Corp. v. Poole noted:
We know by common knowledge that alcohol distorts perception, slows reaction, and impairs motor skills, while operation of an automobile requires
clear perception, quick reaction, and adept motor skills. Our everyday use
and reliance on the automobile is unquestionable. Also unquestionable is the
tragic relationship between intoxicated drivers and fatal or injury-producing
accidents.
732 S.W.2d 306, 311 (Tex. 1987). For other supportive cases, see Missouri-Pacific
RR. v. Kimbrell, 160 Tex. 542, 546-47, 334 S.W.2d 283, 286-87 (1960) (finding that
common knowledge includes current interest rates and the earning power of money);
International & G.N.R Co. v. Eckford, 71 Tex. 274, 279, 8 S.W. 679, 680 (1888) (recognizing that "[t]he common knowledge and experience of jurors, their acquaintance
with the affairs of life and the motives of men acting under different conditions, are
especially called into request" in determining questions of negligence); City of Austin
v. SeIter, 415 S.W.2d 489, 501 (Tex. Civ. App.-Austin 1967, writ refd n.r.e.) (stating
that "[o]ne does not die from drowning without unpleasant changes occurring within
the body ... [and that] [t]he law does not necessarily require direct proof of or specific fmdings on matters of universal knowledge"); Missouri-Pacific RR v. Prejean,
307 S.W.2d 284, 288-89 (Tex. Civ. App.-Houston 1957, no writ) (holding that interest
rates and the earning power of money need not be introduced into evidence to support damage award); Tennessee Gas Transmission Co. v. Hall, 277 S.W.2d 733, 73536 (Tex. Civ. App.-San Antonio 1955, no writ) (noting that because a specific farming technique was common knowledge in the jurisdiction, the jury's discussion of it
during deliberations was not reversible error); Gillette Motor Transp. Co. v. Whitfield,
197 S.W.2d 157, 162 (Tex. Civ. App.-Fort Worth 1946), affd on other grounds, 145
Tex. 571, 200 S.W.2d 624 (1947) (holding that it was not reversible error for the jury
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trial judge may instruct the jurors that they may consider information within common knowledge, although the Texas Supreme Court discourages this practice so as not to mislead the
jurors.43
Thus, judicial notice of both legislative facts and "legal
reasoning" facts has existed since the promulgation of the Federal44 and Texas Rules but is not regulated by Article II. 45
Hence, there are no specific requirements of notice, hearing,
opportunity to rebut, or supporting materials in either of these
types of judicial notice. 46 Some commentators suggest, however, that in the realm of legislative facts, the parties should
have an opportunity to be heard and to rebut the reliability of
the sources upon which the court relies. 47
Rule 201 (b): Types of facts
Long before the effective date of the Federal Rules, a controversy raged on whether judicial notice of adjudicative facts
should be confined to substantially indisputable facts or to facts
that are unlikely to be disputed. Even the evidence greats were
divided on the issue: Professors Morgan and McCormick argued
that judicial notice should be confined to indisputables48 while
to discuss matters of common knowledge); Blue Diamond Motor Bus Co. v. Hale, 69
S.W.2d 228, 230 (Tex. Civ. App.-San Antonio 1934, writ dism'd) (allowing jurors to
rely upon their own driving experience to assess the causes of an accident).
43. See Gillette Motor Transp. Co. v. Whitfield, 145 Tex. 571, 574, 200 S.W.2d
624, 626 (1947) (stating that the jury may consider matters of general knowledge in
its deliberations, but that it is a better practice not to instruct the jurors to consider
matters of general knowledge because such instructions may confuse them).
44. See 1 DAVID W. LoUiSELL & CHRISTOPHER B. MUELLER, FEDERAL EVIDENCE
§ 56, at 395-403 (1977) (discussing Federal Rule 201); 1 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE 'i 205[01], at 200-2 to 200-6; 'lI 200[03], at
200-15 to 200-20 (1990) (discussing the distinction between legislative and adjudica·
tive facts). Subdivision (a) of the advisory committee's note to Federal Rule 201
states that "the regulation of judicial notice of facts by the present rule extends only
to adjudicative facts." FED. R. EVID. 201 advisory committee's note, subdiv. (a).
45. STEVEN GoODE ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND
CRIMINAL § 201.1, at 35 (1988).
46. See Morgan, supra note 29, at 270·71.
47. See SALTZBURG & REDDEN, supra note 6, at 60 (stating that "[i]f a fact or
set of facts is likely to be critical to a decision on the law to be applied to parties,
there is every reason to want the parties to be heard on the factual question). For
an example of extensive judicial consideration of and reliance upon statistical data,
professional manuals, psychological studies, and law review articles in determining
the abuses of the constitutional right against self-incrimination, see Miranda v. Arizona, 384 U.S. 436, 445-55 (1966).
48. See MCCORMICK'S HANDBOOK I, supra note 9, § 330, at 710·11 (taking issue
202
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Professors Thayer, Wigmore, and Davis contended that judicial
notice should extend to facts that are somewhat less absolute.49 Both sides muster cogent arguments to support their
positions and both contend that the weight of existing case law
supports their views. 50 A substantial split also exists among
the states on this issue.Sl In providing that "[a] judicially noticed fact must be one not subject to reasonable dispute, ,,52 the
Federal Rules followed the Morgan-McCormick view requiring
substantial indisputability. The Advisory Committee's note on
the federal rule stated that this more stringent standard was
based upon "the theory that these considerations call for dispensing with traditional methods of proof only in clear
cases.,,53
Several older cases set forth an even more rigid standard.
Judicial notice was permitted only of facts that were certain
and indisputable. 54 Most modern decisions and the Federal
Rules reject this standard because any rule of absolute
indisputability would seriously restrict the scope of judicial
notice and place an unwarranted burden on the trial judge.55
Texas decisions give lip-service to this rigid standard by stating
that adjudicative facts must be "certain and indisputable" to be
with the Wigmore-Thayer view of judicial notice and arguing that "the weight of
reason and the prevailing authority" dictate that judicial notice be confined to indisputable facts); John T. McNaughton, Judicial Notice-Excerpts Relating to the
llfolgan-Wigmore Controversy, 14 VAND. 1.. REv. 779, 779 (1961) (noting that
Morgan's view restricts judicial notice to "patently indisputable" matters).
49. See Davis, supra note 24, at 76-78 (propounding the Wigmore-Thayer view
and arguing that trial judges should entertain evidence which contradicts judicially
noticed facts); McNaughton, supra note 48, at 805 (concluding that the WigmoreThayer view allows courts to judicially notice matters which are "somewhat disputable but unlikely to be disputed").
50. See McNaughton, supra note 48, at 796 n.3.
51. See Carla A. Neely, Note, Judicial Notice: Rule 201 of the Federal Rules of
Evidence, 28 U. FLA. 1.. REv. 723, 758 nn.203-04 (1976) (citing decisions of several
states).
52. FED. R. EVID. 201(b).
53. FED. R. EVID. 201 advisory committee's note, subdiv. (b).
54. See Utah Constr. Co. v. Berg, 205 P.2d 367, 370 (Ariz. 1949); Varcoe v. Lee,
181 P. 223, 227 (Cal. 1919).
55. See, e.g., Edmund M. Morgan, Foreword to MODEL CODE OF EVIDENCE 66
(1942) (arguing that judicially noticed facts should be free from reasonable dispute,
verifiable through unquestioned sources, or determined through the same process as
an applicable rule or statute). But see Richard Jackson, Comment, The Binding Effect of Judicial Notice Under the Common Knowledge Test, 21 BAYLOR 1.. REV. 208,
213-16 (1969) (arguing that even the common knowledge test in Texas is not strict
enough and that judicial notice should be restricted to facts immediately observable
or subject to verification by any individual in the normal course of experience).
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noticed. 66 When these cases are analyzed, however, it becomes
clear that the courts were actually applying the intermediate
standard adopted by the federal rule. Texas Rule 201(b) follows
this approach, thus effecting no change in Texas law.
Federal Rule 201(b) includes two kinds of facts within the
scope of judicial notice and requires that both kinds not be
"subject to reasonable dispute. "57 .As indicated, this "not subject to reasonable dispute" standard is, in essence, the substantially indisputable standard favored by Morgan and
McCormick.66 The two kinds of facts are the so-called "notori0us" facts and facts that are verifiably certain.
Texas Rule 201(b) adopted verbatim the language of the
federal rule. We can therefore assume that the drafters intended to retain the meaning of the federal language for the
Texas rule. 59 Because the fact categories defined in Texas Rule
201(b) are substantially the same as the kinds of facts judicially noticeable under prior Texas case law, the rule makes relatively little, if any, change in Texas practice.
Rule 201 (b) (1): Notorious facts. Under early common
law, a fact could be judicially noticed as a notorious fact if it
was within the common knowledge of all persons of ordinary
understanding and intelligence.5O Under Federal Rule 20 1(b),
this extremely broad restriction was wisely reduced to general
knowledge by persons "within the tenitorial jurisdiction of the
trial court," a standard which is now commonly accepted as a
sufficient basis for judicial notice.61
56. See Johnson v. Cooper, 379 S.W.2d 396, 399 (Tex. Civ. App.-Fort Worth
1964, no writ) (finding that the trade meaning of "square" was not "certain and
indisputable"); Harper v. Killion, 345 S.W.2d 309, 311 (Tex. Civ. App.-Texarkana)
(holding that Jacksonville's location within Cherokee County could be determined
with certainty), affd, 162 Tex. 481, 348 S.W.2d 521 (1961).
57. FED. R. EVID. 201(b).
58. Refer to notes 48-53 supra and accompanying text.
59. See Kent Caperton & Erwin McGee, Background, Scope and Applicability of
the Texas Rules of Evidern:e, supra p. 95, at 118. Refer to note 14 supra and accompanying text.
60. See, e.g., Roden v. Connecticut Co., 155 A. 721, 723 (Conn. 1931) (stating
that judicially noticed facts must be "generally accepted by mankind as true"); In re
Buszta's Estate, 186 N.Y.S.2d 192, 193 (Sur. Ct. 1959) (holding that judicial notice is
proper only of facts which are "universally known and recognized").
61. MCCORMICK ON EVIDENCE, supra note 4, § 329, at 922; see, e.g., Henry v.
Butts, 591 So. 2d 849, 851-52 (Ala. 1991) (recognizing that courts may, but are not
required to, take judicial notice of matters of common knowledge and upholding a
trial court's decision not to take judicial notice of the fact that there are 5,280 feet
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Texas courts have long recognized that notorious facts are
appropriate subjects for judicial notice.62 The decisions have
differed. however. in the language used to define such facts.
One test inquires as to whether the fact to be noticed is both
"certain and indisputable" and "of common, everyday knowledge
in the jurisdiction, which every one [sic] of average intelligence
and knowledge of things about him can be presumed to
know.t>63 Other cases merely inquire whether "a fact is well
known by all reasonably intelligent people in the community. >064 The language in these latter cases is consistent with
that contained in Texas Rule 201(b)(1). Indeed, some post-Rules
Texas decisions explicitly rely upon prior case law in stating
that geographic facts of common notoriety within the district
are suitable for judicial notice under Texas Rule 201.65
in a mile); Stessman v. American Black Hawk Broadcasting Co., 416 N.W.2d 685,
686 (Iowa 1987) (stating that "[j]udicial notice can only be taken of evidence that is
'common knowledge or capable of certain verification'" (citation omitted»; Akers v.
Baldwin, 736 S.W.2d 294, 305·06 (Ky. 1987) (stating that it is common knowledge
that in many instances the owner of a mineral estate can and does cause severe
damage to the surface estate while mining); see also State v. Armendariz, 449
N.W.2d 555, 558 (Neb. 1989) (holding that a court may take judicial notice that substances such as cocaine may be easily and quickly disposed of by flushing them
down a drain).
62. See Sudderth v. Grosshans, 581 S.W.2d 215, 217 (Tex. Civ. App.-Austin
1979, no writ) (taking judicial notice that San Angelo is in Tom Green County).
63. Johnson v. Cooper, 379 S.W.2d 396, 399 (Tex. Civ. App.-Fort Worth 1964,
no writ); see also Harper v. Killion, 162 Tex. 481, 484, 348 S.W.2d 521, 522 (1961)
(holding that some facts may be judicially noticed because of their "public notoriety
and indisputable existence").
64. Harper v. Killion, 345 S.W.2d 309, 311 (Tex. Civ. App.-Texarkana), affd,
162 Tex. 481, 348 S.W.2d 521 (1961); see also Eagle Trucking Co. v. Texas Bitulithic
Co., 612 S.W.2d 503, 506 (Tex. 1981) (stating that "well known and easily ascertainable facts may be judicially noticed"); Barber v. Intercoast Jobbers & Brokers, 417
S.W.2d 154, 157·58 (Tex. 1967) (finding that courts often judicially notice well known
geographical facts); Fender v. St. Louis S.W. Ry., 513 S.W.2d 131, 134 (Tex. Civ.
App.-Dallas 1974, writ refd nor.e.) (holding that foreign court proceedings do not
meet the "common knowledge" test), cert. denied, 421 U.S. 913 (1975); Clement v.
McNiel, 328 S.W.2d 823, 824 (Tex. Civ. App.-Waco 1959, no writ) (noting that facts
may be so well recognized that a court may take judicial notice of them); Alexander v. Firemen's Ins. Co., 317 S.W.2d 752, 755 (Tex. Civ. App.-Waco 1958, no writ)
(stating that a court may take judicial notice of scientific facts and principles which
"are generally recognized and ought to be known by men of ordinary understanding
and intelligence," but refusing to take judicial notice that a sonic boom is an "explosion" without sufficient scientific evidence to support the proposition).
65. See, e.g., Apostolic Church v. American Honda Motor Co., 833 S.W.2d 553,
555·56 (Tex. App.-Tyler 1992, writ requested) (relying upon pre.Rules precedent in
holding that "[h]ighway nomenclature and designations within the trial court's jurisdiction are matters of common knowledge and proper subjects for judicial notice" and
that the party's request for judicial notice did not require the proffer of any additional information to support trial court's rmding that certain cities and highways
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Several Texas decisions restrict the notorious fact category.
For example, courts have held that personal knowledge of an
ordinary fact by the trial judge is not equivalent to common
knowledge by persons in the community and, therefore, a trial
judge may not take judicial notice on such basis.66 Courts
have also held that judicial notice may not be taken of facts
that are commonly known by only a specially informed class of
persons.67 These restrictions continue to apply under the Texas Rules. 68
Rule 201 (b) (2): Verifiably certain facts. Federal Rule
201(b)(2) follows well-established modern doctrine in providing
were located within the same county as the court); Bella v. State, 792 S.W.2d 542,
544-45 (Tex. App.-EI Paso 1990, no pet.) (analogizing to Criminal Rule 201(bX1)
and using prior judicial notice caselaw to hold that evidence of a building located at
6210 Montana, two blocks from the intersection of Wieland and Airport in EI Paso
County, Texas, was a sufficient basis for a jury to conclude from common knowledge
that the site was within the city limits of EI Paso).
66. See, e.g., Eagle Trocking, 612 S.W.2d at 506 (holding that even if a trial
judge personally knew that a certain location satisfied statutory requirements, the
court could not take notice of that fact because personal knowledge is not a proper
basis for judicial notice); Barron v. Marusak, 359 S.W.2d 77, 84 (Tex. Civ.
App.-Austin 1962, no writ) (advising that a judge who has personal knowledge of a
fact that is not subject to judicial notice should take the stand as a witness and
testify on the matter); see also Ex parte Rains, 555 S.W.2d 478, 481 (Tex. Crim.
App. 1977) (citing numerous cases which hold that the judge's personal knowledge of
matters not in the record is not proper for judicial notice); 1 Roy R. RAy, TEXAS
LAw OF EVIDENCE: CIVIL AND CRIMINAL § 152, at 195 (Texas Practice 3d ed. 1980)
(finding that judicial notice and the judge's personal knowledge are not "coextensivej.
67. See, e.g., Johnson, 379 S.W.2d at 399 (holding that a party is not relieved
from providing competent evidence of the term "square" even though the specific
meaning of the term is well-known to persons in the roofing trade); State v. Arkansas Fuel Oil Co., 268 S.W.2d 311, 320 (Tex. Civ. App.-Austin 1954) (declining to
take judicial notice that an increase in gas prices was due solely to economic forces
because this conclusion was based on information which persons of average knowledge and intelligence did not have), rev'd on other grounds, 154 Tex. 573, 280
S.W.2d 723 (1955). Note, however, that facts of a specialized nature, which are
known only by persons who are interested in that specialty, may be judicially noticeable under the "verifiably certain" category of facts. Refer to notes 69-79 infra and
accompanying text.
68. See, e.g., Stowe v. State, 745 S.W.2d 568, 570 (Tex. App.-Houston [lst
Dist.] 1988, no pet.) (holding that a judge may not take judicial notice of juror state·
ments that he overheard after a trial); Haden Co. v. Mixers, Inc., 667 S.W.2d 316,
317·18 (Tex. App.-Dallas 1984, no writ) (noting that even if the abbreviation
"5-12'2" x 14'1" O.H. Std. M.G. $3,328.00" is customary in the construction trade,
the abbreviation is not generally known and, thus, not a proper subject for judicial
notice); see also Olin G. Wellborn III, Judicial Notice Under Article II of the Texas
Rules of Evidence, 19 ST. MARY'S L.J. 1, 14 (1987).
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for judicial notice of facts that are "capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned. na9 Texas case law also follows this
doctrine. 7o In Eagle Trucking Co. v. Texas Bitulithic CO.,71
the court noted that the proper test for judicial notice is "verifiable certainty" based upon a "source for the ascertainment of
[the] fact from which a judge could refresh his memory or inform. his conscience in any manner in which that judge deems
trustworthy."72 Thus, adoption of the federal language in Texas Rule 201(b)(2) did not change Texas law regarding the appropriate standard to use in taking judicial notice.
The category of verifiably certain facts, however, may be
more liberal under Texas Rule 201(b)(2) than it was under the
common law. Prior Texas decisions had indicated that courts
could not take judicial notice of substantially indisputable facts
merely because those facts could be ascertained by reference to
dictionaries, encyclopedias, or other publications. 73 Post-Rules
decisions, however, liberalize such holdings. For example, in
Bender v. State,74 the court held that under Rule 201 an appellate court could, "by resort to obtainable, accurate reference
materials,,,75 take judicial notice of the fact that "the 2100
block of West Loop South, is located in Houston, Texas and
69. See MCCORMICK ON EVIDENCE, supra note 4, § 330, at 924; 9 JOHN
H. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIAlS
AT COMMON LAw § 2571, at 548 (3d ed. 1940) (citing statutes which expressly permit judicial notice through extraneous verifiable sources, and stating that such facts
fall within the scope of judicial notice); Morgan, supra note 55, at 66 (explaining
that Rule 801 of the MODEL CODE OF EVIDENCE, which allows judicial notice of
verifiably certain facts, simply restates settled common law doctrine); Note, Judicial
Notice and Advice of Counsel on Scientific Facts, 47 COLUM. L. REv. 151, 151 (1947)
(finding that a "large body of authority has subscribed to the doctrine that the scope
of judicial notice be extended to include all facts capable of accurate and ready demonstrationj.
70. See, e.g., Harper v. Killion, 162 Tex. 481, 483-84, 348 S.W.2d 521, 522
(1961) (recognizing that a court may take judicial notice of a fact that is readily
verifiable); Fender v. St. Louis S.W. Ry., 513 S.W.2d 131, 135 (Tex. Civ. App.-Dallas 1974, writ refd nor.e.) (stating that "[t]he theory of judicial notice is that the fact
to be noticed is so notorious or its existence so easily ascertainable that proof wiIl
not be requiredj, cert. denied, 421 U.S. 913 (1975).
71. 612 S.W.2d 503 (Tex. 1981).
72. fd. at 506.
73. See Johnson v. Cooper, 379 S.W.2d 396, 399 (Tex. Civ. App.-Fort Worth
1964, no writ) (holding that the trial court could not judicially notice the trade
meaning of "square,· even though the definition might have been found in a dictionary).
74.
75.
739 S.W.2d 409 (Tex. App.-Houston [l4th Dist.] 1987, pet. refd).
fd. at 413.
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that an 'MBank' building is located at that address."76 Although the court did not specify what reference materials might
be resorted to, presumably items such as key maps would suffice. 77 This result appears to be in accord with federal precedent under Federal Rule 201.78 Under Texas Rule 201, Texas
courts may take judicial notice of a wide variety of verifiably
certain facts. 79
Courts have long taken judicial notice of various scientific
principles which justify the evidentiary use of procedures employing these principles, e.g., radar, blood and breath tests for
intoxication, fingerprinting, and ballistics.so This policy is an
enormous time-saving tool because it relieves courts from the
necessity of taking lengthy testimony on basic scientific principles upon which common tests are routinely performed.
On the other hand, a judge may not take judicial notice of
adjudicative facts that are open to reasonable dispute, even if
the judge is personally convinced of the correctness of a particular conclusion.81 Judicial' notice does not depend upon the
76. [d.
77. Under Civil Rule 201, information found in dictionaries will also suffice as
"easily accessible," See Drake v. Holstead, 757 S.W.2d 909, 911 (Tex.
App.-Beaumont 1988, no writ) (accepting the number of feet in a mile as specified
in a deskside dictionary).
78. See, e.g., United States v. Perez, 776 F.2d 797, 801·02 (9th Cir. 1985) (tak·
ing judicial notice of the minimum distance between Rota and Guam and of the
necessity of traveling through international water or airspace); United States v.
Hughes, 542 F.2d 246, 248 n.1 (5th' Cir. 1976) (allowing judicial notice that certain
streets and intersections were located on a federal enclave); Church of Scientology
Int'l v. Elmira Mission, 614 F. Supp. 500, 504 n.4 (W.D.N.Y. 1985) (taking judicial
notice of data compiled by a local auto club which indicated the distance between
three cities in the state), relJ'd on other grounds, 794 F.2d 38 (2d Cir. 1986); Deary
v. Evans, 570 F. Supp. 189, 197 n.ll (D.V.I. 1983) (taking judicial notice that a
downtown business area was small and that two buildings were within several
blocks of each other), affd in part, rev'd in part, 746 F.2d 185 (3d Cir. 1984).
79. See, e.g., .Higginbotham v. General Life & Accident Ins. Co., 796 S.W.2d 695,
696 (Tex. 1990) (holding that a "trial court could properly take judicial notice that
12:01 p.m. on March 18, 1986 was an early afternoon on a Tuesday that was not a
statutory holiday"); Hernandez v. Houston Lighting & Power Co., 795 S.W.2d 775,
776·77 (Tex. App.-Houston [l4th Dist.] 1990, no writ) (allowing a trial court to take
judicial notice of the National Electric Safety Code after providing the opposition
with an opportunity to rebut its accuracy); Wagner & Brown v. E.W. Moran Drilling
Co., 702 S.W.2d 760, 773 (Tex. App.-Fort Worth 1986, no writ) (permitting judicial
notice of the discount rate on 9O-day commercial paper in effect at a federal reserve
bank as stated in the Federal Reserve Bulletin).
80. MCCORMICK ON EVIDENCE, supra note 4, § 330, at 925; PAUL C. GIANNELLI
, & EDWARD J. IMWINKELRIED, SCIENTIFIC EVIDENCE §§ 1·2, at 3-4 (1986).
81. See Hardy v. Johns·Manville Sales Corp., 681 F.2d 334, 347-48 (5th Cir.
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particular court's certitude but upon the certitude of the general community as viewed by the court.
A court may take judicial notice of its own records concerning the same subject matter and substantially the same parties
under Texas Rule 201(b)(2),82 but it may not take notice of
records from a different court.83 This principle is in accord
with prior Texas law.84 However, the doctrine which precludes
judicial notice of recorded proceedings in other courts has been
criticized as illogical.85 Further, if judicial notice of a court's
prior records is proper, it makes no difference whether notice is
taken by the same judge or his successor.56 Prior to the adop-
1982) (advising that courts should not take judicial notice that asbestos causes cancer with regard to an asbestos·related product liability action because that proposition was inextricably linked to a host of disputed issues); 8ee alBo Prestige Homes,
Inc. v. Legouffe, 658 P.2d 850, 853·54 (Colo. 1983) (holding that the court of appeals
acted improperly in taking judicial notice of a disputed medical issue based on medical treatises that contradicted expert trial testimony).
82. See Turner v. State, 733 S.W.2d 218, 221-22 (Tex. Crim. App. 1987); Jubert
v. State, 753 S.W.2d 458, 459·60 (Tex. App.-Texarkana 1988, no pet.); 8ee alBo
United States v. Montemayor, 666 F.2d 235, 237 (5th Cir. 1982) (allowing a district
court to take judicial notice of allegations and information that were revealed during
civil proceedings before the court when determining the appropriate amount of bail
for a criminal defendant).
83. See Penix v. State, 748 S.W.2d 629, 630·31 (Tex. App.-Fort Worth 1988, no
pet.) (holding that Criminal Rule 201 did not change the common law rule that an
appellate court may not take judicial notice of the records of another court); National County Mut. Fire Ins. Co. v. Hood, 693 S.W.2d 638, 639 (Tex. App.-Houston
[14th Dist.] 1985, no writ) (holding that a court may not judicially notice the records
of another court).
84. See Wilson v. State, 677 S.W.2d 518, 523 (Tex. Crim. App. 1984) (holding
that a trial court may not take judicial notice of records of another court); Gardner
v. Martin, 162 Tex. 156, 158, 345 S.W.2d 274, 276 (1961) (allowing a trial court to
take judicial notice of records in its own court concerning the same subject matter
between the same or practically the same parties); Culver v. Pickens, 142 Tex. 87,
93, 176 S.W.2d 167, 171 (1943) (holding that a court may not judicially notice records of another court). Refer to note 89 infra and accompanying text.
85. See MCCORMICK ON EVIDENCE, 8upra note 4, § 330, at 927 (stating that
"[m]atters of record in other courts are usually denied notice even though it would
appear manifest that these public documents are logically subject to judicial notice
as readily verifiable factsj. Indeed, it might seem anomalous that dictionary entries
carry more weight as easily verifiable facts in legal proceedings than do official judi·
cial entries in sister courts. Cf. Colonial Leasing Co. v. Logistics Control Group Int'l,
762 F.2d 454, 459 (5th Cir. 1985) (holding that a federal district judge in Texas may
take judicial notice of an Oregon state court judgment because those records constitute "a source whose accuracy cannot reasonably be questionedj.
86. Holloway v. State, 666 S.W.2d 104, 108·09 (Tex. Crim. App. 1984) (holding
that a visiting judge could take judicial notice of an instrument containing the terms
and conditions of probation during a hearing on a motion to revoke probation be·
cause probationary conditions were easily verifiable from reliable sources); McCowan
v. State, 739 S.W.2d 652, 656 (Tex. App.-Beaumont 1987, pet. reid) (stating that
"[i]f the matter of which notice was taken was within the proper scope of judicial
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tion of the Texas Rules, Texas law provided that a trial judge
who presided over a criminal trial and later presided over a
hearing to revoke probation for the same offense could take
judicial notice at the second hearing of the evidence admitted
at the previous tria1.87 This rule probably has not survived
adoption of Texas Rule 201 because it relied upon matters peculiarly within a particular judge's personal knowledge which
were neither "notorious" nor capable of accurate and ready
determination by resort to indisputably accurate sources.88
While judicial proceedings may be subject to judicial notice in
proper circumstances, statements or events that occur in the
presence of a judge but outside of a judicial proceeding are not
subject to judicial notice.89
Under Texas common law uncertainty existed as to whether trial or appellate courts could take judicial notice of the fact
of incorporation of a Home Rule city.90 In a post-Rules decision, however, the court of criminal appeals announced that it
could take judicial notice of the fact that San Antonio is an incorporated city although neither party submitted any documen-
notice, it would make no difference that a different judge presided at each proceeding").
87. Barrientez v. State, 500 S.W.2d 474, 475 (TeL Crim. App. 1973). But see id.
at 477 (Onion, J., dissenting) (noting that common law traditionally indicated that
courts could take judicial notice of orders but not testimony from a previous trial).
88. See McCowan, 739 S.W.2d at 655 (expressing "grave doubts" that the
Barrientez rule survived enactment of Texas Rule 201(b».
89. See Ex parte Rains, 555 S.W.2d 478, 481 (Tex. Crim. App. 1977) (holding
that a judge's personal knowledge of matters not contained in the official judicial
records of the court is not a proper subject for judicial notice); Stowe v. State, 745
S.W.2d 568, 570 (Tex. App.-Houston [1st Dist.] 1988, no pet.) (finding that state·
ments made outside of a judicial proceeding "may be subject to varying interpretations" and are not the type of adjudicative facts that are covered by Texas Rule
201).
90. Compare Bryce v. Corpus Christi Area Convention & Tourist Bureau, 569
S.W.2d 496, 501 (Tex. Civ. App.-Corpus Christi 1978, writ refd n.r.e.) (holding that
neither a trial nor appellate court could take judicial notice of a city charter unless
it was first introduced into evidence) and Pate v. Whitley, 196 S.W. 581, 582 (Tex.
Civ. App.-EI Paso 1917, no writ) (holding that a trial court could not take judicial
notice of the fact that a city's charter had been certified and filed with the Secretary of State) with Salazar v. State, 161 Tex. Crim. 98, 99, 275 S.W.2d 112, 113
(1955) (taking judicial notice of the fact that El Paso's city charter was on file in
the Secretary of State's office) and City of San Antonio v. Aguilar, 670 S.W.2d 681,
683 (Tex. App.-San Antonio 1984, writ refd n.r.e.) (taking judicial notice of San
Antonio's city charter and the fact that it is a municipal corporation) and Cone 'I.
City of Lubbock, 431 S.W.2d 639, 647 (Tex. Civ. App.-Amarillo 1968, writ refd
n.r.e.) (citing the precedent that courts "mayor must take judicial knowledge of the
provisions of city charters").
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tation to demonstrate that fact to either the trial or appellate
COurt.91 The court reasoned that because "it is certainly easy
enough to obtain from the office of the Secretary of State . . . a
certification as to whether a particular city has filed a Home
Rule charter."92 there was no need for the State to either
plead or prove that San Antonio was an incorporated city under
the Texas arson statute.
In summation. the kinds of adjudicative facts judicially
noticeable in Texas prior to the adoption of Texas Rule 201
were substantially the same as under that rule. The Texas
Court of Criminal Appeals even adumbrated the language of
Texas Rule 201(b) in Lejeune v. State. 93 when noting that
"t[t]he theory [of judicial notice] is that. where [1)] a faet is
well-known by all reasonably intelligent people in the community. or [2)] its existence is so easily determinable with certainty
from sources considered reliable. it would not be good sense to
require formal proof: ,,94 In applying these rules. Texas courts
have held that courts must take care in exercising the authority to take judicial notice and that every reasonable doubt
should be resolved in the negative.95 This holding is fully consistent with the soundly based tradition of caution referred to
by the Advisory Committee in its note on Federal Rule
201(b).96 It is apparent. therefore, that the adoption of this
rule made no significant change in Texas law.
Rules 201(c) & (d): Discretionary and Mandatory Rules
According to the Advisory Committee's note to Federal Rule
201. these two subdivisions reflect existing practice. are simple
and workable, and avoid troublesome distinctions in many situations. 97 In contrast to the California approach of separately
enumerating various matters which must or may be judicially
noticed.98 Federal Rule 201 treats all judicially noticeable ad-
91. Gonzales v. State, 723 S.W.2d 746, 751-52 (Tex. Crim. App. 1987).
92. Id. at 752 n.13.
93. 538 S.W.2d 775 (Tex. Crim. App. 1976).
94. Id. at 780 (quoting CHARLES T. MCCORMICK & Roy R. RAy, TExAs PRACTICE
§ 151, at 170 (2d ed. 1956».
9,5. See, e.g., Johnson v. Cooper, 379 S.W.2d 396, 399 (Tex. Civ. App.-Fort
Worth 1964, no writ); State v. Arkansas Fuel Oil Co., 268 S.W.2d 311, 320 (Tex.
Civ. App.-Austin 1954), re/)'d on other grounds, 154 Tex. 573, 280 S.W.2d 723
(1955).
96. FED. R. EVID. 201 advisory committee's note, subdiv. (b).
97. FED. R. EVID. 201 advisory committee's note, subdivs. (c), (d).
98. See CAL. EVID. CODE § 451 (West Supp. 1992); id. § 452 (West 1966).
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judicative facts alike. 99
Subdivision (c), which authorizes a court to take judicial
notice whether or not a party requested such notice, did not
change pre-existing Texas law. loo Regarding subdivision (d),
however, Texas courts differed in their view of the court's discretion to take judicial notice of adjudicative facts. lOl Although the demarcation between facts which must or may be
judicially noticed was indistinct, the line probably existed somewhere between facts that, by judicial precedent, had become
fixed as proper for notice and facts that had only relatively
recently became so notorious that judicial notice was authorized. 102 When judicial notice was discretionary, whether the
court took notice depended on the nature of the subject, the
issue involved, and the apparent justice of the case. 103 Rule
201(d) changed prior Texas practice by making all facts mandatorily noticeable: 1) if properly requested by a party; 2) if the
court is supplied with the appropriate information; and, of
course, 3) if the fact is of a kind that may properly be noticed. 104 The relative insignificance of this change is, however,
99. FED. R. EVID. 201 advisory committee's note, subdivs. (c), (d).
100. See Harper v. Killion, 162 Tex. 481, 485, 348 S.W.2d 521, 522 (1961) (allowing the lower court to judicially notice that Jacksonville is located in Cherokee county even though the court was not requested to do so); Vahlsing, Inc. v. Missouri
Pac. R.R., 563 S.W.2d 669, 674 (Tex. Civ. App.-Corpus Christi 1978, no writ) (presuming that the trial court judicially noticed the necessity of a third party to the
plaintiff's cause of action under a promissory note, though not formally requested to
do so); Texas Sec. Corp. v. Peters, 463 S.W.2d 263, 264-65 (Tex. Civ. App.-Fort
Worth 1971, no writ) (presuming that the trial court judicially noticed the date on
which pleadings were filed and their contents, though not formally requested to do
so): Buckaloo Trucking Co. v. Johnson, 409 S.W.2d 911, 913 (Tex. Civ. App.-Corpus
Christi 1966, no writ) (presuming that the trial court judicially noticed the fact that
an accident occurred within Nueces County, Texas, though not requested to do so).
101. See 1 RAy, supra note 66, § 153, at 197 (noting that the line between facts
which may be noticed and those which must be noticed is "difficult to draw"): see
also James v. State, 546 S.W.2d 306, 310 (Tex. Crim. App. 1977) (noting that under
the common law, courts have wide discretion regarding what facts may be judicially
noticed).
102. See Clement v. McNiel, 328 S.W.2d 823 824 (Tex. Civ. App.-Waco 1959, no
writ) (explaining that the progress of society impacts the scope of judicial notice).
According to the decision rendered in Skinner v. HCC Credit Co., judicially noticed
facts are "largely within the discretion of the trial court," and the test on appeal is
whether there was an abuse of discretion. 498 S.W.2d 708, 711 (Tex. Civ. App.-Fort
Worth 1973, no writ). Professor Wellborn suggests that under Texas common law,
judicial notice has long been a matter of discretion. Wellborn, supra note 68, at 15.
103. State v. Arkansas Fuel Oil Co., 268 S.W.2d 311, 319 (Tex. Civ. App.-Austin
1954), rev'd on other ground.s, 154 Tex. 573, 280 S.W.2d 723 (1955).
104. Hernandez v. Houston Lighting & Power Co., 795 S.W.2d 775, 776 (Tex.
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demonstrated by the paucity of cases concerned with the mandatory-discretionary issue in prior Texas law. l05 The practical
significance of the change is that a trial judge's refusal to take
judicial notice when requested to do so and supplied with the
necessary information may lead to an appellate reversal under
Texas Rule 201 if judicial notice would have been within the
court's discretion to refuse under the common law. For example,
in Drake v. Holstead,l06 the Beaumont Court of Appeals held
that trial judges may be required to take judicial notice of
mathematical calculations if they are supplied with the necessary mathematical computations. 107 In Drake, the trial court
erred in refusing to take judicial notice of rates of speed after
the plaintiff supplied the court with a typewritten sheet of
mathematical computations.lOS The court of appeals noted
that mandatory judicial notice applies to scientific facts and
principles that "ought to be known by men of ordinary understanding and intelligence:,l09 However, while the trial judge
in Drake erred in declining to take judicial notice, the error
was harmless.110
App.-Houston [14th Dist.] 1990, no writ) (citing Cleontes v. City of Laredo, 777
S.W.2d 187, 189 (Tex. App.-San Antonio 1989, writ denied».
105. See generally 1 RAy, supra note 66, § 153, at 198 (finding that the distinction between mandatory and discretionary judicial notice is "not sufficiently recognized to justify separate treatment of those groupsj.
106. 757 S.W.2d 909 (TeL App.-Beaumont 1988, no writ).
107. Id. at 911.
108. Id. On the other hand, if the trial judge is not provided with the necessary
information to support judicial notice of mathematical computations, he cannot be
faulted for failing to take judicial notice. See Davenport v. State, 807 S.W.2d 635,
638 (TeL App.-Houston [14th Dist.] 1991, no pet.) (holding that although the trial
court could have taken judicial notice of time·distance mathematical calculations that
the defense attorney wished to use during closing argument, it was not error to
sustain the opponent's objection to their use when the attorney failed to provide the
court with any means of verifying the accuracy of his calculations).
109. Drake, 757 S.W.2d at 910. The court cited 21 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE AND PROCEDURE § 5105, at 232 (Supp. 1987),
for the proposition that "[a] fact is generally known even though it has to be processed with commonly possessed mental skills," Drake, 757 S.W.2d at 910. However,
the computations given by the plaintiff in Drake might not have been considered
simple and, in fact, they were not entirely accurate. Id. at 911 n.2. Nonetheless,
because the defendant did not object to their accuracy and the inaccuracies did not
affect the ultimate computation, the trial court erred in refusing to take judicial
notice of the rate of speed. Id. at 911.
110. Drake, 757 S.W.2d at 911. In response to a general negligence instruction,
the jury found that the plaintiff, but not the defendant, was a proximate cause of
the collision. Id. Because no issues of statutory negligence were submitted, the appellate court reasoned that the trial court's failure to take judicial notice of the
speed calculations did not cause an improper judgment in the case. Id.
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Texas Rule 201(d) does not specify when a party must request that the court take judicial notice of a fact. Presumably,
a request must be presented in a timely manner; otherwise the
party who would have benefitted from judicial notice may not
complain in the reviewing court that the trial court abused its
discretion. 1l1 Under pre-Rules decisions, Texas appellate
courts were reluctant to take judicial notice of adjudicative facts
on appeal for the first time. 112 Although that same concern is
expressed in post-Rules Texas cases,113 appellate courts frequently take judicial notice of adjudicative facts that are pre-
111. Wright and Graham comment that
[t]he failure to make a timely request does not mean that judicial notice
cannot be taken; it simply means that notice is not mandatory. The trial
court can, as a matter of discretion, take judicial notice on the basis of an
untimely request, so long as the opponent is given an opportunity to be
heard on the question.
21 WRIGHT & GRAHAM, supra note 109, § 5107, at 510 (1977). There may be instances in which a trial court could abuse its discretion by taking untimely notice. In
Colonial Leasing Co. v. Logistics Control Group Int'l, the rationale for requiring timely notice is well exemplified. 762 F.2d 454 (5th Cir. 1985). Here, Colonial Leasing,
the alleged creditor, sued its debtor and a third party alleging a fraudulent transfer
of assets. Id. at 454. The trial court excluded evidence of an Oregon state court judgment rendered for Colonial against the debtor. Id. at 456. The transferee, Logistics,
then declined to present evidence and correctly argued that Colonial had failed to
establish a creditor status and, thus, had failed to present a prima facie case. Id. at
457. However, after the trial, the plaintiff requested that the judge take judicial notice of the Oregon judgment. Id. The trial judge did 80 and rendered judgment for
Colonial. Id. The court of appeals reversed and remanded, reasoning that while the
trial court could have taken judicial notice of the judgment during trial, the fact that
it did not do so at that time reasonably led Logistics to believe that it did not need
to present evidence on that critical fact during the trial. Id. at 460-61.
112. See Sparkman v. Maxwell, 519 S.W.2d 852, 855 (Tex. 1975) (finding that appellate courts are "reluctant" to take judicial notice when the trial court is not requested to do so, but suggesting that appellate courts may do so under "circumstances where necessary to avoid an unjust judgment); Continental Oil Co. v. Simpson,
604 S.W.2d 530, 535 (Tex. Civ. App.-Amarillo 1980, writ refd n.r.e.) (holding that
because the entire content of a document is a proper and necessary source for the
trial court to notice in determining the document's legal effect, the court would take
notice of a document's entire content on appeal even though the record was silent as
to the attention given to the document by the trial court).
113. For example, in Duderstadt Surveyors Supply, Inc. v. Alamo Express, Inc.,
the plaintiff-shipper sued Alamo Express, the carrier of its C.O.D. products, for accepting a fraudulent cashier's check in payment for delivery. 686 S.W.2d 351, 353
(Tex. App.-San Antonio 1985, writ refd n.r.e.). The trial court found that Alamo
did not breach its duty to the shipper and rendered judgment for Alamo. Id. While
the case was pending in the appeals court, Duderstadt filed a motion to take judicial notice of a Railroad Commission tariff. Id. The court of appeals declined to do
so because the tariff was never presented to the trial judge. Id. at 354. The court of
appeals refused to reverse the trial court's judgment based upon materials, whether
evidentiary or subject to judicial notice, never presented to the trial court. Id.
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sented for the first time on appeal. 1l4 These divergent results
may be reconciled by dividing appellate judicial notice into two
categories: 1) notice that upholds the lower court; and 2) notice
that undermines the lower court. If judicial notice of a fact supports the integrity of the factfinder's ruling or verdict, judicial
notice can be taken for the first time on appeal. 1l5 If judicial
notice would reverse the judgment or ruling of the factfinder,
such notice should not normally be taken for the first time on
appeal absent a timely request in the lower COurt. 1l6
Texas Rule 201(d) also does not define what is "necessary
information" for the requesting party to furnish. Presumably no
extrinsic information is required for judicial notice of "notorious" facts because all the parties and the judge are well aware
of the fact. 1l7 Regarding verifiable facts, the requesting party
114. Trapnell v. John Hogan Interests, Inc., 809 S.W.2d 606, 608 (Tex.
App.-Corpus Christi 1991, writ denied); Lacy v. First Nat'! Bank, 809 S.W.2d 362,
367 (Tex. App.-Beaumont 1991, no writ); City of Dallas v. Moreau, 718 S.W.2d 776,
781 (Tex. App.-Corpus Christi 1986, writ refd n.r.e.); see also Nubine v. State, 721
S.W.2d 430, 434 (Tex. App.-Houston [lst Dist.] 1986, writ refd) (stating that an
appellate court is not confined solely to the trial record for "evidence" of the laws of
a sister state).
115. See, e.g., Trujillo v. State, 809 S.W.2d 593, 595-96 (Tex. App.-San Antonio
1991, no pet.) (finding no error in permitting a teacher to testify that her school district was accredited by the Texas Education Agency because the court could have
rejected any inadmissible testimony and instead taken judicial notice of accreditation
at any stage of the proceeding, a fact easily ascertainable from a state agency); Ex
parte Preston, 801 S.W.2d 604, 605 (Tex. App.-Houston [lst Dist.] 1990) (honoring
the appellant's request to take judicial notice of the record of a previous prosecution
while affuming the trial court's decision and holding that the appellant's argument
was unsupported), rev'd on other grounds, 833 S.W.2d 515 (Tex. Crim. App. 1992);
City of Mesquite v. Moore, 800 S.W.2d 617, 619 (Tex. App.-Dallas 1990, no writ)
(taking judicial notice of census figures to support a rmding by the trial court that
the city of Mesquite had a population greater than 10,000 and was thus subject to a
former statute requiring overtime pay for excess hours).
116. Hadley v. State, 735 S.W.2d 522, 530 (Tex. App.-Amarillo 1987, pet. refd)
(refusing to take judicial notice of Oklahoma law because such notice was never
requested of the trial court nor was proof of Oklahoma law offered). But see Martinez v. City of San Antonio, 768 S.W.2d 911, 915 (Tex. App.-San Antonio 1989, no
writ) (taking judicial notice of a local ordinance and a maintenance agreement in reversing a lower court in order to avoid "an injustice").
117. See 1 LoUiSELL & MUElLER, supra note 44, § 58, at 454 (advising that
"merely calling the attention of the judge to the proposition in question should suffice" as a basis for taking judicial notice of notorious facts); see also Harper v.
Killion, 162 Tex. 481, 485, 348 S.W.2d 521, 523 (Tex. 1961). The Harper court held
that
a district court sitting in Cherokee County can judicially notice the certain
and indisputable fact of common knowledge that the entire city of Jacksonville is located in such county . . . notwithstanding the district court was
not formally requested so to do and did not formally announce that it had
done so.
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should produce both the "source whose accuracy cannot reasonably be questioned," which contains the fact to be noticed, i.e.,
the key map that contains the map showing that 900
Westheimer Road is in the city of Houston, and any additional
information which the judge or opposing party might require to
demonstrate that the source is one "whose accuracy cannot
reasonably be questioned." For example, if the frontpiece of the
key map states that it was compiled by the City of Houston
based upon information supplied by its corps of engineers, such
information would suffice to demonstrate that the source is one
"whose accuracy cannot reasonably be questioned."118 Generally speaking, if the source is used and relied upon by all of
those individuals who work within a particular profession, information contained in that source is sufficiently accurate for
judicial notice. The Texas Rules themselves do not apply to the
procedure by which a court takes judicial notice and thus any
reliable matter may be used, despite its evidentiary inadmissibility.119 This policy is in accord with prior Texas law. l20 If
the requesting party fails to provide the necessary information,
the court may properly refuse to take judicial notice. 121
Rule 201(e): Opportunity to be Heard
The United States Supreme Court has suggested that due
process may be violated when judicial notice is taken of a fact
and the party against whom the fact operates is not given an
opportunity to challenge it. l22 The Advisory Committee on the
Federal Rules echoed this sentiment when it noted that such
[d.
118. Official government maps have "long been held proper subjects of judicial
notice." Government of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979); see
Williams v. Chew, 19 S.W.2d 68, 69 (Tex. Civ. App.-1929, no writ) (noting that the
court could take judicial notice of the surveys and grants of land upon which Hous·
ton is located).
119. See 1 LoUlSELL & MUELLER, supra note 44, § 58, at 451.
120. See Continental Oil Co. v. Simpson, 604 S.W.2d 530, 535 (Tex. Civ.
App.-Amarillo 1980, writ refd n.r.e.) (stating that "the source from which a fact is
judicially noticed is not evidence to establish the fact and is not subject to the rules
of evidence").
121. Robinson v. State, 783 S.W.2d 648, 653 (Tex. App.-Dallas 1989, no writ)
(refusing to take judicial notice of the fact that the defendant had made a request
under the mandatory section of Rule 201(d) because he had failed to supply the
court with the necessary information), affd, Nos. 183·90, 184·90, 1992 WL 131911
(Tex. Crim. App. June 17, 1992).
122. See Ohio Bell Tel. Co. v. Public Utils. Comm'n, 301 U.S. 292, 302·03 (1937).
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an opportunity was demanded by "[b]asic considerations of procedural fairness,"123. Accordingly, Federal Rule 201(e) granted
parties the right to be heard regarding both "the propriety of
taking judicial notice and the tenor of the matter noticed.,,124
Texas Rule 201(e) adopts verbatim the language of the federal
rule. 125
To understand the proper context of Rule 201(e), it must be
considered in conjunction with Rules 201(b) and 201(g). As indicated, Rule 201(b) provides that a court can only take judicial
notice of facts that are not subject to reasonable dispute. From
this comes the tautology that there is no valid reason to dispute a fact that is not reasonably disputable. Civil Rule 201(g)
thus mandates that the jury "accept as conclusive any fact judicially noticed"126 and "contemplates [that] there is to be no
evidence before the jury in disproof [of the fact]."127 Therefore,
the opportunity to be heard provided by Rule 201(e) is limited
to challenges made directly to the judge. Other states, having
adopted positions different from those found in Federal and
Texas Rules 201(b) and (g), hold differently on the Rule 201(e)
question. Such jurisdictions give the party against whom a
noticed fact operates a right to be heard that includes the right
to present rebuttal evidence for jury consideration. 128 This latter position would, at least in theory, apply to Criminal Rule
201(g) because the jury in a criminal case is never required to
accept as conclusive those facts that are judicially noticed by
the judge. 129 As a practical matter, however, it seems unwise
for a court to take judicial notice of any fact that is subject to
contrary proof.
FEn. R. EVID. 201 advisory committee's note, subdiv. (e).
FEn. R. EVID. 201(e).
125. See TEx. R. CIV. EVID. 201(e) & TEx. R. CRlM. EVID. 201(e).
126. TEx. R. CIV. EVID. 201(g).
127. FEn. R. EVID. 201 advisory committee's note, subdiv. (g).
128. See, e.g., State v. Zayas, 490 A.2d 68, 70·71 (Conn. 1985) (noting that even
if a judicially noticed fact is not open to argument, the "better practice is to give
the parties an opportunity to be heard before judicial notice is taken"); Stewart v.
Davis, 571 So. 2d 926, 928·29 (Miss. 1990) (suggesting that opposing counsel could
present rebuttal evidence to the jury even though reasonable minds would not differ
on the matter); see also Arthur J. Keefe et al., Sense and Nonsense About Judicial
Notice, 2 STAN. L. REv. 664, 668 (1950). The authors comment that if the opponent
of a judicially noticed faet is permitted to dispute the matter, "[s]hould not the pro·
ponent then also have the right to offer evidence disputing the opponent, and if the
court permits this, what happens to the doctrine of judicial notice?" Id. If both parties are permitted to argue the matter before judicial notice is taken, neither should
complain. Refer to note 138 infra.
129. TEx. R. CRIM. EVID. 201(g).
123.
124.
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Rule 201(e) also interacts with Rule 201(c), which permits
the court to take judicial notice on its own initiative. ISO In
such cases, the parties might not receive any indication that a
court has taken judicial notice until after the fact. 131 Some
commentators point out that "judicial notice without notification
may deprive the adversely affected party of the right to trial by
jury as well, since he will miss his opportunity to request a
hearing at which rebutting information may be introduced. "132
The final sentence of subdivision (e) addresses this situation by
permitting a non-notified party to request a hearing even after
a court takes judicial notice. l33 Although no specific form or
time or prior notification by the court or specific procedures for
the hearing are provided, the Advisory Committee's note calls
attention to the provision for a hearing on a timely request in
the Administrative Procedure Act. l34 If, however, a party fails
to object to the trial court's procedure in taking judicial notice
and does not seek an opportunity to be heard, he may waive
the complaint regarding the propriety of such notice. l35
Very few Texas cases address the procedural aspects of
taking judicial notice of adjudicative facts, although several
cases contemplate that the parties will present information and
data for the judge to use in his rulings respecting judicial
notice. l36 Professor Ray has suggested that fairness to the
130. TEx. R. CIV. EVID. 201(c) & TEx. R. CRIM. EVID. 201(c).
131. But see 1 WEINSTEIN & BERGER, supra note 44, 'll 201[05], at 201-51 to -52
(commenting that a court has an obligation to notify the parties prior to taking judicial notice when such notice would not otherwise be clear).
132. Id. at 201-53 to -54. One commentator has noted:
An elementary sense of fairness might indicate that a judge before making a
final ruling that judicial notice will be taken should notify the parties of his
intention to do so and afford them an opportunity to present information
which might bear upon the propriety of noticing the fact, or upon the truth
of the matter to be noticed.
MCCOR.'f1CK ON EVIDENCE, supra note 4, § 333, at 934.
133. TEx. R. CIV. EVID. 201(e) & TEx. R. CRIM. EVID. 201(e).
134. FED. R. EVID. 201 advisory committee's note, subdiv. (e) (citing 5 U.S.C.
§ 556(e) (1976».
135. See Texas Real Estate Comm'n v. Nagle, 740 S.W.2d 37, 38 (Tex. App.-EI
Paso 1987) (noting that an objection must be made when judicial notice is taken or
else it is waived and that a delayed request for a hearing on the propriety of judicial notice is appropriate when there was no prior notification), reu'd on other
grounds, 767 S.W.2d 691 (Tex. 1989); see also MacMillan Bloedel Ltd. v. Flintkote
Co., 760 F.2d 580, 587 (5th Cir. 1985) (rejecting appellant's request for an opportunity to be heard regarding the taking of judicial notice because appellant did not properly challenge the district court's action).
136. See, e.g., Eagle Trucking Co. v. Texas BituIithic Co., 612 S.W.2d 503, 506
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parties ordinarily requires the judge to notify the parties of his
intention to notice a given fact and to give them an opportunity
to present, informally, data indicating that the matter is not a
proper subject for judicial notice. 137 Presumably, Texas courts
give this suggestion considerable weight. At least one Texas
court has indicated that it considers advance notice to be a
matter subject to waiver by a party but suggests that in some
situations such notice might constitute a right. 138 In summary, subdivision (e) is not inconsistent with prior Texas practice
but merely crystallizes the most frequently followed procedures.
Rule 201 (f): Time of Taking Notice
The Advisory Committee characterized the federal counterpart to this rule as being in accord with the accepted view. 139
Professor McCormick stated that it is an "axiom" that appellate
courts may take judicial notice to the same extent as trial
COurtS. 140 Texas courts are fully in accord with this view,
holding, for example, that courts may take judicial notice in
(Tex. 1981) (noting that the trial court could not take judicial notice of whether a
road was inside or outside a business or residence district without any source to
support the conclusion); Harper v. Killion, 162 Tex. 481, 484, 348 S.W.2d 521, 523
(1961) (stating that maps are proper sources to provide support of the facts to be judicially noticed).
An appellate court, however, may refuse to take judicial notice of a fact that
mayor may not have been judicially noticed in the trial court if the opponent was
not "afforded an opportunity to be heard as to the propriety of taking judicial notice
or the tenor of the matter noticed." National County Mut. Fire Ins. Co. v. Hood, 693
S.W.2d 638, 639 (Tex. App.-Houston [l4th Dist.] 1985, no writ).
137. 1 RAy, supra note 66, § 152, at 195.
138. Skinner v. HCC Credit Co., 498 S.W.2d 708, 711-12 (Tex. Civ. App.-Fort
Worth 1973, no writ). The Skinner court noted that an aggrieved party who was
aware that in all probability a question subject to judicial notice might be presented
and took no action may not complain. Id. Conversely, the trial court may take judicial notice of matter if it is a proper subject for such notice even without advance
notice that the litigant will challenge proof of a matter. Id.
139. FED. R. EVID. 201 advisory committee's note, subdiv. (f).
140. MCCORMICK ON EVIDENCE, supra note 4, § 333, at 935; see McRae v. Hogen,
576 F.2d 615, 616 n.2 (5th Cir. 1978) (noting that a penitentiary transfer order may
be noticed on appeal although it was not part of the official record); see also 1
LoUISELL & MUELLER, supra note 44, § 59 at 482·83. For examples of such appel·
late court cases, see Gideon v. Johns·Manville Sales Corp., 761 F.2d 1129, 1144 (5th
Cir. 1985) (taking judicial notice of OSHA standards for asbestos exposure); Government of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979) (taking judicial
notice of the boundaries of the Canal Zone for purposes of determining jurisdiction).
Louisell and Mueller comment that while judicial notice may be taken by an appellate court, it is only required to take judicial notice if 1) a requesting party made a
timely request to trial court, or 2) to correct "plain error" by the trial court. 1
LoUISELL & MUELLER, supra note 44, § 59 at 482-83.
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other than trial situations, such as in passing upon the sufficiency of a petition attacked by a general demurrer,141 in a
summary judgment proceeding,142 or by the appellate
COurt. 14S Texas courts emphasize that an appellate court may
take judicial notice of a proper fact even though the trial court
was not requested to take judicial notice of the fact and did not
formally announce that it had done SO.l44
The question arises of whether an appellate court ought to
take judicial notice of a fact that was not so noticed at the trial
court level in a criminal case. Both Texas145 and federal l46
141. See, e.g., State v. Arkansas Fuel Oil Co., 268 S.W.2d 311, 320 (Tex. Civ.
App.-Austin 1954) (noting that the trial court could take notice of wages and the
costs of materials since World War II), rev'd on other grounds, 154 Tex. 573, 280
S.W.2d 723 (1955).
142. See, e.g., Fender v. St. Louis S.W. Ry., 513 S.W.2d 131, 134-35 (Tex. Civ.
App.-Dallas 1974, writ refd n.r.e.) (noting that a trial court can take judicial notice
of the law of foreign jurisdictions during a summary judgment proceeding), cert.
denied, 421 U.S. 913 (1975).
143. See, e.g., Continental Oil Co. v. Simpson, 604 S.W.2d 530, 535 (Tex. Civ.
App.-Amarillo 1980, writ refd n.r.e.) (taking judicial notice of the legal effect of
regulations of the Railroad Commission); Vahlsing, Inc. v. Missouri Pac. Ry., 563
S.W.2d 669, 674 (Tex. Civ. App.-Corpus Christi 1978, no writ) (affirming the trial
court's implied finding that Vahlsing was a "necessary party" within the statutory
definition); Texas Sec. Corp. v. Peters, 463 S.W.2d 263, 265 (Tex. Civ. App.-Fort
Worth 1971, no writ) (presuming that the trial court properly took judicial notice
even though it did not formally announce that it had done so); Buckaloo Trucking Co. v. Johnson, 409 S.W.2d 911, 913 (Tex. Civ. App.-Corpus Christi 1966, no
writ) (presuming that the trial court, in support of its judgment, took judicial notice
of certain indisputable geographic facts); Harper v. Killion, 345 S.W.2d 309, 311-12
(Tex. Civ. App.-Texarkana) (taking judicial notice of the general physiographic features of the county), affd, 162 Tex. 481, 348 S.W.2d 521 (1961); A. & M. College v.
Guinn, 280 S.W.2d 373, 377 (Tex. Civ. App.-Austin 1955, writ refd n.r.e.) (taking
judicial notice of the validity of a probate court's order).
144. McCulloch v. State, 740 S.W.2d 74, 75-76 (Tex. App.-Fort Worth 1987, pet.
refd) (taking judicial notice of the explosive nature of gasoline); City of Garland v.
Louton, 683 S.W.2d 725, 726 (Tex. App.-Dallas) (taking judicial notice of the fact
that the city of Garland held a municipal election), rev'd on other grounds, 691
S.W.2d 603 (Tex. 1985); see Gonzales v. State, 723 S.W.2d 746, 751-52 (Tex. Crim.
App. 1987) (holding that the defendant's indictment was not insufficient because
there was a predicate laid in the trial court to establish that San Antonio had a
Home Rule charter on file, a fact that may be judicially noticed); Continental Oil,
604 S.W.2d at 535. The appellate court may presume that the trial court took judicial notice of facts that were properly noticeable, even though the trial court did not
formally announce that it did so. See Vahlsing, 563 S.W.2d at 679; Texas Sec. Corp.,
463 S.W.2d at 265; Buckaloo Trucking Co., 409 S.W.2d at 913; Harper, 345 S.W.2d
at 312.
145. See, e.g., McCulloch, 740 S.W.2d at 75-76; Gonzales, 723 S.W.2d at 751-52;
Lewis v. State, 674 S.W.2d 423, 426 (Tex. App.-Dallas 1984, pet. refd) (taking judicial notice that one location was within several blocks of another); Siroky v. State,
653 S.W.2d 476, 480 (Tex. App.-Tyler 1983, pet. refd) (taking judicial notice that
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appellate courts have done so. The main concern is the constitutionality of directing the jury to find any adjudicative fact
against a criminal defendant. That concern is the reason why
subdivision (g) is written in permissive, not mandatory,
terms. 147 Several federal courts have suggested that an appellate court can never take judicial notice of an adjudicative fact
on appeal in a criminal case because doing so would deny the
defendant his constitutional right to a jury determination of
every element of the charged offense. l48 The proper analysis,
one-fourth of an ounce of marijuana is a "usable amount").
146. In United States v. Mauro, 601 F.2d 46, 49 (2d Cir. 1974), cert. denied, 419
U.S. 969 (1974), and Ross v. United States, 374 F.2d 97, 103 (8th Cir.), cert. denied,
389 U.S. 882 (1967), the appellate courts took judicial notice of notorious facts that
were neither noticed nor proved at the trial level. Neither trial court considered
remand for the jury's consideration of such facts essential for a fair trial. Mauro,
601 F.2d at 49; Ross, 374 F.2d at 103. But see United States v. Judge, 846 F.2d
274, 276-77 (5th Cir. 1988) (remanding a case to the trial court for the limited purpose of allowing the government an opportunity to present to the trial judge DEA
materials supporting the conclusion that a car inventory was conducted pursuant to
"standard procedure"). In Judge, the appellate court refused to take judicial notice of
portions of a DEA manual submitted by the government because: 1) the materials
might arguably be subject to reasonable dispute in the present fact scenario; 2) the
government submitted selective portions of the manual; and 3) the defendant did not
have an adequate opportunity to challenge the applicability and administration of
provisions. Id. at 776-77. The remand in Judge was a fair and reasonably expeditious method of dealing with questions of judicial notice of adjudicative facts raised
on appeal from a trial judge's ruling. Obviously, the remand procedure would not be
applicable to jury factfinding. See generally Hobart Taylor, Jr., Comment, Evi·
de~udicial Notice By Appellate Courts of Facts and Foreign Law Not Brought to
the Attention of the Trial Court, 42 MIca 1.. REv. 609, 612-13 (1943) (concluding
that appellate courts are much more likely to take judicial notice of facts to uphold
a trial court verdict than to reverse that verdict).
147. H.R. REp. No. 650, 93d Cong., 1st Sess. 6 (1974), reprinted in 1974
U.S.C.C.A.N. 7075, 7080.
148. In United States v. Jones, the Sixth Circuit Court of Appeals refused to take
judicial notice that South Central Bell Telephone Company was a carrier engaged in
the transmission of interstate communications. 580 F.2d 219, 223-24 (6th Cir. 1978).
The defendant had been convicted of illegally intercepting telephone conversations by
tapping a telephone furnished by the South Central Bell Telephone Company. Id. at
219. However, no witness explicitly testified that South Central Bell was a "person
engaged in providing or operating . . . facilities for the transmission of interstate or
foreign communications," as the penal statute is worded. See 18 U.S.C. § 2510(1)
(1988). After the jury returned a guilty verdict, the defendant asked for and received
a directed verdict from the judge because the government failed to offer proof on
this statutory element. Jones, 580 F.2d. at 223-24. The court of appeals affIrmed the
acquittal, reasoning that the congressional intent manifested in Federal Rule 201(g),
which gives the jury in a criminal case authority to disregard a judicially noticed
fact, requires that facts not noticed and made the subject of an instruction at trial
level may not be noticed on appeal. Id. This decision has been characterized as extreme and incorrect because every member of the jury undoubtedly knew that Bell
Telephone and all of the regional telephone companies are common carriers. GooDE
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however, is whether judicial notice is requested to prove a factual element of the offense for which no proof was ever
offeredl49 or whether it is requested to take notice of the common and ordinary inferences' that may be deduced from facts
proved. For example, if a witness in a driving while intoxicated
trial testifies that a suspect was stopped while driving "on
Westheimer" in Houston, an appellate court could take judicial
notice that Westheimer Road is a "public place" for purposes of
the D.W.I. statute. ISO Conversely, if the witness merely testifies that a suspect was stopped while driving in Houston, an
appellate court could not take judicial notice that all locations
in Houston where one could drive are public places. As Professor Wellborn notes, appellate judicial notice of the factual
meaning or interpretation of evidence to sustain a jury's verdict
is actually supportive of the general notion of jury integrity in
a criminal trial. lSI
Rule 201 (g): Instructing the Jury [civil rule]
As noted above, Civil Rule 201(g) tracks the language of
the correlative federal provision, except that it eliminates the
language applicable to criminal cases. Civil Rule 201(g) completes the picture commenced by subdivision (b), which requires
that judicially noticed facts not be subject to reasonable dispute,152 and given substance by subdivision (e), which extends
to parties a right to be h~ard concerning the taking of judicial
ET AL, supra note 45, § 201.9, at 52; MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL
EVIDENCE § 201.7, at 83-84 & n.13 (3d ed. 1991); 1 WEINSTEIN & BERGER, supra
note 44, 'i 201[06], at 201-62.
149. See Government of Canal Zone v. Burian, 596 F.2d 690, 694 (5th Cir. 1979)
(noting that the Court of Appeals for the Sixth Circuit read Rule 201(g) to preclude
taking judicial notice of "an element of the crime" by an appellate court in criminal
proceedings).
150. This example is more akin to the "legal reasoning" process which is always
susceptible to judicial notice but is not covered by rules of evidence. Refer to notes
38-45 supra and accompanying text.
151. See Wellborn, supra note 68, at 25-26. Saltzburg and Redden have commented that if a criminal defendant does not raise an issue at trial, then the appellate
court that considers the issue on its merits may resolve it by taking judicial notice.
SALTZBURG & REDDEN, supra note 6, at 61. Saltzburg and Redden further comment
that "[b]y failing to offer proof at trial, the defendant has placed himself in a position from which it is difficult to complain successfully about the binding nature of
appellate notice." Id.
152. TEx. R. CIV. EVID. 201(g).
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notice. l53 After the parties have had an opportunity to contest
the taking of judicial notice and the tenor of the matter noticed, and the judge, proceeding with traditional caution, determines that judicial notice is proper, the next step is to decide
whether the court should allow the jury to consider evidence in
disproof of the noticed fact. The Federal Rules answered this
question in the negative by providing that the factfinders are to
be instructed that they must accept such a fact as true. l54
The correlative Texas rule adopts the federal position on this
issue. Thus, once the court takes judicial notice of some fact, no
evidence will be admitted to rebut it. This rule is simply the
corollary to the requirement in subdivision (b) that noticed facts
must be substantially indisputable. l55
In one post-Rules decision, First National Bank of Amarillo
v. Jarnigan,l56 the Amarillo Court of Appeals stated that a
trial court may not instruct a jury that it has taken judicial notice of a series of particularized "findings of fact" if doing so
would constitute "unnecessary and impermissible comments on
the weight of the evidence.,,157 In this case, the concept of judicial notice seems to have been misapplied because the
thirteen findings of fact submitted to the jury as conclusive
were neither matters of common knowledge nor readily ascertainable. Instead, they were factual and legal conclusions. l58
While the court of appeals assumed, for the sake of argument,
that "the trial court was authorized to take judicial notice of
153. Id. 201(c).
154. See FEn. R. EVID. 201(g).
155. See 1 WEINSTEIN & BERGER, supra note 44, 'll 201(07). Whether the party
against whom a judicially noticed fact operates is precluded from challenging the
truth of that fact depends upon whether it is proper in the jurisdiction involved to
take judicial notice only of substantially indisputable facts or also of facts that are
merely unlikely to be controverted. If judicial notice is limited to indisputable mat·
ters, "it must follow that no evidence to the contrary is admissible." Morgan, supra
note 29, at 279. If, however, judicial notice is more relaxed and is viewed as a time·
saving device to eliminate the necessity of formal proof in instances in which dispute
is unlikely, the noticed fact should be subject to rebuttal evidence that the opponent
offers. See THAYER, supra note I, at 308·09 (arguing that judicial notice should be
no more than prima facie recognition of the matter, thus leaving it open to contro·
versy).
156. 794 S.W.2d 54 (Tex. App.-Amarillo 1990, writ denied).
157. Id. at 62.
158. For example, the court took judicial notice of the following "adjudicative
facts": "The mechanics' and materialmen's lien contract, original mechanics' and
materialmen's lien note and the renewal note and deed of trust constitute a single
transaction [and) . . . the First National Bank of Amarillo is not a holder in due
course of the renewal note and deed of trust dated April 6, 1983." Id. at 59·60.
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those thirteen facts," this assumption was improper because the
appellate court was then forced to hold that the jury should not
have been instructed that the trial court had taken judicial
notice of these findings. 159 Under Civil Rule 201(g), a judge
shall instruct the jury when he has properly taken judicial notice of an adjudicative fact. l60 The proper issue was whether a
judge may submit factual and legal conclusions upon which
reasonable minds might differ to a jury -under the rubric of
judicial notice. Thus, while the result in Jarnigan was correct,
both the premise and the reasoning were faulty.
The Advisory Committee's note to the 1969 draft of Federal
Rule 201 suggested three reasons for adopting the conclusivefact standard: "the undesirable effects of the opposite rule [1] in
limiting the rebutting party, though not his opponent, to admissible evidence, [2] in defeating the reasons for judicial notice,
and [3] in affecting the substantive law to an extent and in
ways largely unforeseeable...161 The first reason refers to the
practice of permitting the party against whom the judicially
noticed fact operates to rebut such fact only with admissible
evidence, while permitting the party who sought judicial notice
to present any material the trial judge found acceptable. 162
Rule 201(e) resolves this objection by permitting both parties to
argue the propriety of taking judicial notice.
The second reason, that the other standard defeated the
purpose of judicial notice, is not explained but probably refers
to the fact that permitting parties to rebut judicially noticed
facts with formally introduced evidence offsets the time-saving
purpose of the rule. l63
The third reason for rejecting the alternate standard, that
substantive law might be affected, is similarly unexplained.
This justification possibly refers to the argument that while all
debatable adjudicative facts would be determined by the
factfinder, disputable but uncontroverted facts, once noticed, are
conclusive in civil cases. l64 Beyond these reasons, the Adviso-
159.
160.
161.
Id. at 61.
TEx. R. CIV. EVID. 201(g).
FED. R. EVID. 201 advisory committee's note, subdiv. (g) (1969 preliminary
draft), 46 F.R.D. 161, 204·05 (1969).
162. See Keefe et aI., supra note 128, at 668.
163. See William B. Nichols, Comment, Judicial Notice and PresumptioTl8 Under
the Proposed Federal Rules of Evidence, 16 WAYNE L. REv. 135, 140 (1969).
164. See TEx. R. CIV. EVID. 201(g).
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ry Committee points to the "soundly based" tradition of caution
requiring that matters of which the court takes judicial notice
be beyond reasonable controversy.l65
Rule 201 (g): Instructing the Jury [criminal rule]
The second sentence of Federal Rule 201(g), which was
deleted from the Texas civil rule, states a different rule for
criminal cases. loo That sentence was adopted as Criminal
Rule 201(g). In the 1972 federal version of this rule, the judge
was required to instruct the jury to accept as conclusive any
judicially noticed fact regardless of whether the proceedings
were civil or criminal. l67 The Advisory Committee proceeded
on the theory that the right to a jury trial did not extend to
matters which were beyond reasonable dispute; therefore, the
instruction that a noticed fact was conclusively established did
not violate that right. l68 Before the rule became law, the
House Committee on the Judiciary amended it to distinguish
between civil and criminal proceedings, stating that the Committee was of the view that a mandatory jury instruction to
accept judicially noticed facts in criminal cases was contrary to
the spirit of the right to a jury trial under the Sixth Amendment. lOO The House Committee did not cite support for its
view, and no conclusive authority existed. l7O Nevertheless, the
rule as enacted precludes an instruction that the judicially noticed fact is conclusive in criminal cases. l7l
165. See FED. R. EVID. 201 advisory committee's note, subdiv. (b).
166. See FED. R. EVID. 201(g).
167. RULES OF EVIDENCE FOR UNITED STATES COURTS AND MAGISTRATES,
56 F.R.D. 183, 201 (1973) (listing the proposed Federal Rules).
168. Id. at 207. The Advisory Committee cited cases supporting its view as well
as cases holding the contrary. Id.; see also David L. Hefflinger, Proposed Rule
Broadens Scope of Judicial Notice, 53 NEB. L. REv. 333, 337-38 (1974) (concluding
that judicial notice is proper in a criminal case only if the defendant has been given
an opportunity to rebut the presumed fact and if the jurors are instructed that the
noticed fact is not binding upon them).
169. H.R. REp. No. 650, 93d Cong., 1st Sess. 6 (1973), reprinted in 1973
U.S.C.C.A.N. 7075, 7080.
170. Only a few significant cases touch this point. See, e.g., State v. Lawrence,
234 P.2d 600, 603 (Utah 1951) (stating that a conclusive instruction invaded the
province of the jury in a criminal case). Contra United States v. Alvarado, 519 F.2d
1133, 1135 (5th Cir. 1975) (holding that judicial notice of facts that are plainly true
does not abridge Sixth Amendment rights), cert. denied, 424 U.S. 911 (1976); but see
Gold v. United States, 378 F.2d 588, 593 (9th Cir. 1967) (recognizing that the defendant in a criminal case has a constitutional right to trial by jury, but stating that
the jury does not have discretion "to decide that the earth is flat").
171. See FED. R. EVID. 201(g); see also United States v. Mentz, 840 F.2d 315,
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The Texas rule adopted this permissive provision. 172 Although the criminal rule has been criticized,173 Professor
Black considers any complaint "as probably more theoretical
than real for it is unlikely that a conscientious jury would find
contrary to facts not subject to reasonable dispute," as would be
required by subdivision (b).174 Nonetheless, American juries in
criminal cases are always entitled to return a "not guilty" verdict that flies in the face of both logic and evidence under the
rubric of jury nullification,175 even though judges may not instruct juries that they may do SO.176
It is important to remember, however, that this instruction
applies only to judicial notice of adjudicative facts and does not
apply to an instruction regarding legislative facts. 177 Thus,
322-23 (6th Cir. 1988) (reversing the defendant's conviction for bank robbery because
the trial judge gave the jury a mandatory instruction that banks are insured by the
FDIC). The Mentz court recognized that a "trial court commits constitutional error
when it takes judicial notice of facts which constitute an essential element of the
crime charged, but fails to instruct the jury according to Rule 201(g)." Id. at 322.
For an example of a proper Rule 201(g) jury instruction, see United States v.
Deckard, in which the court stated:
When the Court declares it will take judicial notice of some fact or event,
you may accept the Court's declaration as evidence, and regard as proved
the fact or event which has been judicially noticed, but you are not required
to do so since you are the sole judge of the facts.
816 F.2d 426, 428 (8th Cir. 1987).
172. TEx. R. CRIM. EVID. 201(g); see also Thomas Black, The Texas Rules of Evidence-A Proposed Codification, 31 Sw. L.J. 969, 974 (1977) (noting that the provision is probably required by the Sixth Amendment).
173. See John H. Wood, Jr., A Brief Outline and Commentary: The Federal Rules
of Evidence, 38 TEx. B.J. 535, 536 (1975) (labeling the civil-criminal distinction in
the federal rule as "ludicrous and unwise").
174. Black, supra note 172, at 974.
175. See Horning v. District of Columbia, 254 U.S. 135, 138 (1920) (noting that
"the jury has the power to bring in a verdict in the teeth of both law and facts");
United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969) (recognizing "the undisputed power of the jury to acquit, even if its verdict is contrary to the law as
given by the judge and contrary to the evidence"), cert. denied, 397 U.S. 910 (1970);
United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969) (stating that "the jury, as
the conscience of the community, must be permitted to look at more than logic"). See
generally Alan W. Scheflin, Jury Nullification: The Right to Say No, 45 S. CAL. L.
REv. 168 (1972) (discussing the right of the jury to decide questions of law and
fact).
176. See United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C. Cir. 1972); see
also 1 LomSELL & MUELLER, supra note 44, § 60, at 502 n.8 (citing cases that hold
that an instruction on the right of jury nullification is improper). Dougherty provides
a historical discussion of the doctrine of jury nullification and concludes that "lilt is
one thing for a juror to know that the law condemns, but he has a factual power of
lenity. To tell him expressly of a nullification prerogative, however, is to inform him,
in effect, that it is he who fashions the rule that condemns." Id.
177. In United States v. Gould, 536 F.2d 216, 218·21 (8th Cir. 1976), the court
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when a judge instructs a jury regarding the applicable law, the
instructions should be couched in mandatory terms. For example, under Texas statutory law, a firearm is a deadly weapon
per se. l78 If a trial judge took judicial notice that a particular
gun introduced into evidence was a "firearm," a Texas jury,
passing on the question of a defendant's use of a deadly weapon in a given case, would be instructed that a firearm "is" a
deadly weapon. The jury would not be instructed that they
could, but were not required to, accept as conclusive that a
firearm is a deadly weapon.
Although a criminal defendant is entitled to a permissive
instruction on judicial notice, the right may be waived by the
failure to assert it. l79 Subdivision (g), however, does not apply
to a bench trial. lSO
held that the trial court did not err in a case regarding a conspiracy to import cocaine by giving the following jury instruction: "If you fmd the substance was cocaine
hydrochloride, you are instructed that cocaine hydrochloride is a Schedule II controlled substance under the laws of the United States." Id. at 218. The court held
that this was a "legislative" fact not capable of a jury determination and that to
rule otherwise "would be preposterous, thus permitting juries to make conflicting
fmdings on what constitutes controlled substances under federal law." Id. at 22l.
178. TEx. PENAL CODE ANN. § l.07(a)(ll)(A) (Vernon 1974).
179. See United States v. DeJohn, 638 F.2d 1048, 1055 (7th Cir. 1981) (rejecting
the defendant's contention that the court's judicial notice of an Illinois law governing
liability on checks was error based in part on acknowledgements of the defense
counsel in closing arguments); United States v. Piggie, 622 F.2d 486, 488 (10th Cir.)
(stating that it was not error for the trial court to take judicial notice of the fact
that Leavenworth penitentiary is United States territory because the defendant did
not request an instruction under Federal Rule 201(g) at the trial court level), cert.
denied, 449 U.S. 863 (1980); see also 21 WRIGHT & GRAHAM, supra note 109, § 5111,
at 535 (stating that "the failure of the judge to give the instruction would doubtless
be held to be invited error if the parties had not requested an instruction").
180. See Government of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979).
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RULE 202
DETERMINATION OF LAW OF OTHER STATES
[civil and criminal rule]
A court upon its own motion may, or upon the motion
of a party [civil rule: shall: criminal rule: may] take judicial
notice of the constitutions, public statutes, rules, regulations, ordinances, court decisions, and common law of every
other state, territory, or jurisdiction of the United States. A
party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable
it properly to comply with the request, and shall give all
parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the
request. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial
notice and the tenor of the matter noticed. In the absence
of prior notification, the request may be made after judicial
notice has been taken. Judicial notice of such matters may
be taken at any stage of the proceeding. The court's determination shall be subject to review as a ruling on a question of law.
Commentary to Rule 202
The Federal Rules contain no rules covering judicial notice
of law. The Federal Rules Advisory Committee felt that matters
of law which traditionally require pleading and proof are more
appropriately left to the Rules of Civil and Criminal Procedure. 1Sl The Texas Supreme Court and Court of Criminal Appeals obviously disagreed with this view. 1S2
Texas courts are required to take judicial notice of the
public statutes of this state,l83 even though under early com-
181.
FED. R. EVID. 201 advisory committee's note.
182.
See TEx. R. CIV. EVID. 202 & TEx. R. CRIM. EVID. 202.
183.
Kish v. Van Note, 692 S.W.2d 463, 467 (Tex. 1985) (citing Evans v. Amari·
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mon law doctrine judicial notice of state law stopped at the border. l84 It was not until adoption of Rule 184a of the Texas
Rules of Civil Procedure in 1943185 that Texas courts were
permitted to take judicial notice of the laws of sister states. l86
The original version of Civil Rule 202 adopted former Rule of
Civil Procedure 184a with the addition of the words "rules,
regulations, and ordinances" in the first sentence. 187 This
adoption of the former rule carried forward all the prior authority and restrictions, as well as procedures, involved in judicial notice of law. l88 The added language, however, now authorizes courts to take judicial notice of the rules, regulations,
and ordinances of such jurisdictions whereas these matters
were previously subject to proof only by competent evidence. 189 This significantly simplifies the task of establishing
can Publishing Co., 118 Tex. 433, 441, 13 S.W.2d 358, 361-62 (1929».
184. See Perkins v. Perkins, 237 S.W.2d 659, 661 (Tex. Civ. App.-Amarillo 1951,
no writ) (stating that a Texas court could not take judicial notice of the statutory
laws of another state); Lawrence v. Pennsylvania Casualty Co., 175 S.W.2d 972, 973
(Tex. Civ. App.-8an Antonio 1943, no writ) (stating that a court of appeals could
not take judicial notice of the statutes of Missouri).
185. Refer to note 13 supra for a discussion of Texas Rule of Civil Procedure
184a.
186. A.J. Thomas, Jr., Proof of Foreign Law in Texas, 25 Sw. L.J. 554, 555
(1971).
187. As originally promulgated by the Texas Supreme Court in 1983, Civil Rule
202 read:
The judge upon the motion of either party shall take judicial notice of the
common law, public statutes, rules, regulations, and ordinances and court
decisions of every other state, territory, or jurisdiction of the United States.
Any party requesting that judicial notice be taken of such matter shall furnish the judge sufficient information to enable him properly to comply with
the request, and shall give each adverse party such notice, if any, as the
judge may deem necessary, to enable the adverse party fairly to prepare to
meet the request. The rulings of the judge on such matters shall be subject
to review.
Texas Rules of Evidence Aoopted, 46 TEx. B.J. 196, 199 (1983). The rule was amended in both 1984 and 1988 to its current version. Order Aoopting and Amending Texas
Rules of Civil Evidence, 50 TEx. B.J. 1051, 1052 (1987); Rules of Evidence: New
Amendments, 47 TEx. B.J. 933, 934 (1984). The 1984 amendments substituted references to the court for those to the judge, added a requirement for the opponent to be
heard, authorized judicial notice at any stage of the proceeding, and added a specific
standard of review. The 1988 amendments authorized the court to take judicial notice
on its own motion and provided that constitutions are subject to judicial notice.
188. See, e.g., Thomas, supra note 186, at 555-61 (discussing the history and
development of Rule 184a).
189. MCCORMICK ON EVIDENCE notes that the common law rule, which was not
abrogated by the provisions of Rule 184a, did not allow a court to take judicial notice of another state's rules, regulations, or ordinances. MCCORMICK ON EVIDENCE,
supra note 4, § 335, at 939-40. Also, the weight of authority appears to have been
that municipal ordinances were not subject to judicial notice. See, e.g., Chambers v.
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the content of rules, regulations, and ordinances of other states.
Constitutions of sister states were always suitable subjects for
judicial notice as part of their statutory laws,190 so Texas
Rule 202 merely clarifies the prior law in that particular instance.
Because Rule 184a did not apply in criminal proceedings,
Texas courts followed the common law position in criminal cases that the court can take judicial notice of the laws of the
United States,191 but not of the laws of another state. 192 Instead, the laws of other states were presumed to be the same
as those of Texas in the absence of competent proof to the
contrary.193 In both civil and criminal proceedings, if a party
did not prove up the specific law of another state or, in civil
cases, did not request judicial notice of such laws, such laws
Lee, 566 S.W.2d 69, 72 n.1 (Tex. Civ. App.-Texarkana 1978, no writ) (citing Morrison v. Buckles, 355 S.W.2d 854 (Tex. Civ. App.-Amarillo 1962, no writ» (stating
that judicial notice will not be taken of a city ordinance). Professor Ray commented
that "[t]here seems to be no good reason under modern conditions why such [municipal] ordinances should not be noticed." 1 RAy, supra note 66, § 171, at 207 n.53.
The extension of Rule 202 to authorize judicial notice of these matters apparently
reflects recent changes in the extent of judicial notice of certain domestic rules and
regulations. In Southwestern Bell Telephone Co. 11. Nash, the court held that judicial
notice may be taken of the acts of administrative bodies officially published in the
Texas Register. 586 S.W.2d 647, 649 (Tex. Civ. App.-Austin 1979, no writ). In 1981,
§ 1 of the Administrative Procedure and Texas Register Act was amended to permit
judicial notice of the contents of the Texas Register. Texas Register and Texas Administrative Code-Evidentiary Value and Data Base Confidentiality, 67th Leg., as.,
ch, 76, § 1, 1981 Tex. Gen. Laws 168, 169 (codified at TEx. REV. ClV. STAT. ANN.
art. 6252-13a, § 4(c) (Vernon Supp. 1991».
190. See Tex. a Civ. Proc. Ann. 184a (Vernon 1976) (amended and renumbered
as Rule 184, effective April 1, 1984, repealed effective September 1, 1990).
191. Plaster v. State, 567 S.W.2d 500, 502 (Tex. Crim, App. [panel Op.] 1978).
Federal rules and regulations were generally subject to judicial notice under Texas
civil common law. See Mosqueda v. Albright Transfer & Storage Co., 320 S.W.2d
867, 876 (Tex. Civ. App.-Fort Worth 1959, writ refd n.r.e.). Mosqueda quotes
McCormick and Ray and suggests that Texas courts
must take judicial notice of the laws of the United States, including all the
public acts and resolutions of Congress and proclamations of the president
thereunder . . . . Administrative rules adopted by boards, departments, and
commissions pursuant to federal statutes are also matters of judicial knowledge. When such regulations are published in the Federal Register a federal
statute provides that their contents shall be judicially noticed.
Id. The Texas Supreme Court, however, has held that a mandatory requirement that
Texas courts notice federal administrative rules and regulations is overly broad. See
Tippett v. Hart, 501 S.W.2d 874, 874-75 (Tex. 1973).
192. See Plaster, 567 S.W.2d at 502.
193. Acosta v. State, 650 S.W.2d 827, 836-37 (Tex. Crim, App. 1983) (Clinton, J.,
concurring).
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were presumed to be the same as the law in Texas. l94
While a court must take judicial notice of a sister state's
laws or federal regulations in civil cases if sufficient information is supplied, "the determination of compliance with these
requirements is within the discretion of the trial court...195 In
criminal proceedings, judicial notice of out-of-state statutes,
rules, and regulations is always discretionary.l96 One wonders
how a plausible argument can be made for the rejection by a
court, properly supplied with the necessary information, of the
content of a sister state's law. No judge, whether deciding a
criminal or civil case, should be free to reject the black letter
law of another jurisdiction that is properly submitted.
Because Texas Rule 202 explicitly states that a court may
take judicial notice of the laws of sister states at any stage of
the proceeding, appellate courts are not limited to the record
made in a trial court as to the law of other states. 197
194. See, e.g., id. at 828 (stating that the law is presumed to be the same in
California as in Texas absent a showing to the contrary); Gevinson v. Manhattan
Constr. Co., 449 S.W.2d 458, 465 n.2 (Tex. 1969) (stating that because the parties
did not direct the court to proof of New York law or to a motion for judicial notice,
the court will presume that the law of New York is the same as the law of Texas);
Green v. State, 165 Tex. Crim. 46, 47, 303 S.W.2d 392, 393 (1957) (finding that because there was no showing regarding the applicable California law on juvenile offenders, the court must assume that California law is the same as Texas law);
Braddock v. Taylor, 592 S.W.2d 40, 42 (Tex. Civ. App.-Beaumont 1979, writ refd
n.r.e.) (finding that when appellants comply with requirements of Rule 184a, the
court should take judicial notice that California does not recognize common law marriages); UTICA v. Mutual Ins. Co. v. Bennett, 492 S.W.2d 659, 663 (Tex. Civ.
App.-Houston [lst Dist.] 1973, writ dism'd) (holding that the court would presume
Mississippi law to be the same as Texas law absent a pleading or request to take
judicial notice of the former).
195. Daugherty v. Southern Pac. Transp. Co., 772 S.W.2d 81, 83 (Tex. 1989); see
also Knops v. Knops, 763 S.W.2d 864, 867 (Tex. App.-San Antonio 1988, no writ)
(stating that the trial court is not required to take note of a "broad, general request- for judicial notice which fails to "apprise the trial court of the particular laws
relied upon and to provide sufficient information to enable the court to properly
comply with the request"); Ewing v. Ewing, 739 S.W.2d 470, 472 (Tex. App.-Corpus
Christi 1987, no writ) (finding that the trial court did not err in refusing to take
judicial notice of the laws of California because the requesting party failed to "set
forth with some particularity the law that is to be relied upon").
196. See Cain v. State, 721 S.W.2d 493, 494 (Tex. App.-Houston [1st Dist.]
1986, no pet.) (holding that an appellate court may take judicial notice of laws of
another state in a criminal case); Hadley v. State, 735 S.W.2d 522, 530 (Tex.
App.-Amarillo 1987, pet. refd) (refusing to consider on appeal evidence regarding
laws of another state because appellant presented no evidence regarding those laws
to the trial court).
197. See Jones v. State, 758 S.W.2d 356, 356 (Tex. App.-Houston [14th Dist.]
1988, pet. refd) (noting that the appellate court could take judicial notice of
Maryland law regarding the use of commitment papers in establishing proof of
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RULE 203
DETERMINATION OF THE LAWS
OF FOREIGN COUNTRIES
[civil and criminal rule]
A party who intends to raise an issue concerning the
law of a foreign country shall give notice in his pleadings
or other reasonable written notice, and at least 30 days prior to the date of trial such party shall furnish all parties
copies of any written materials or sources that he intends
to use as proof of the foreign law. If the materials or sources were originally written in a language other than English, the party intending to rely upon them shall furnish all
parties both a copy of the foreign language text and an
English translation. The court, in determining the law of a
foreign nation, may consider any material or source, whether or not submitted by a party or admissible under the
rules of evidence, including but not limited to affidavits,
testimony, briefs, and treatises. If the court considers sources other than those submitted by a party, it shall give all
parties notice and a reasonable opportunity to comment on
the sources and to submit further materials for review by
the court. The court, and not a jury, shall determine the
laws of foreign countries. The court's determination shall be
subject to review as a ruling on a question of law.
defendant's conviction); Nubine v. State, 721 S.W.2d 430, 434 (Tex. App.-Houston
[lst Dist.] 1986, pet. refd) (holding that under Texas Rule 202, an appellate court is
no longer confined solely to the trial record for "evidence" of laws of sister states
but may now take judicial notice of laws of other states "from readily available and
easily accessible sources").
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Commentary to Rule 208
.AB previously noted, the Federal Rules contain no rules
covering the judicial notice of law. l98 The method of invoking
the law of a foreign country in federal courts is covered in Rule
44.1 of the Federal Rules of Civil Procedure and in Rule 26.1 of
the Federal Rules of Criminal Procedure. These rules were
characterized by the Federal Advisory Committee as "admirably
designed rules."199 Both Texas Civil and Criminal Rule 203
are an adoption of the substantive provisions of these federal
rules with rather extensive procedural additions dealing with
notice and the opportunity to be heard. 200
The federal counterparts to Texas Rule 203 were added in
1966 to furnish a uniform and effective procedure for raising
and determining the law of a foreign country.201 The first sentence of the federal rule, concerning notice, is designed to avoid
unfair surprise.202 The second sentence, which permits consideration of any relevant material, including testimony, wheth-
198. Refer to text accompanying note 181 supra.
199. FED. R. EVID. 201 advisory committee's note. For a discussion of the impact
of Rule 44.1 of the Federal Rules of Civil Procedure, see Arthur R. Miller, Federal
Rule 44.1 and the ·Fact'" Approach to Determining Foreign Law: Death Knell for a
Die-Hard Doctrine, 65 MICH. L. REv. 613 (1967).
200. The following illustrates the extent of the additions made to Rule 44.1 of
the Federal Rules of Civil Procedure. Underlined portions are additions to the federal rule, and portions in brackets are deletions from the federal rule:
A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice, and
at least 30 days prior to the date of trial such party shall furnish all parties copies of any written materials or sources that he intends to use as
proof of the foreign law. If the materials or sources were originally written
in a language other than English. the party intending to rely upon them
shall furnish all parties both a copy of the foreign language text and an
English translation. The court, in determining [foreign law] the law of a
foreign nation. may consider any [relevant] material or source, [including
testimony,] whether or not submitted' by a party or admissible under the
[Federal Rules of Evidence] rules of evidence. including but not limited to
affidavits. testimony, briefs. and treatises. If the court considers sources
other than those submitted by a party. it shall give all parties notice and a
reasonable opportunitv to comment on the sources and to submit further
materials for review by the court. The court. and not a jury. shall determine
the laws of foreign countries. [The court's] Its determination shall be [treated as a ruling on a question of law] subject to review on appeal as a ruling
on a question of law.
FED. R. CIV. P. 44.1.
201. FED. R. CRIM. P. 26.1 advisory committee's note (1966 addition).
202. See id. (referring the reader to FED. R. CIV. P. 44.1 advisory committee's
note for a full explanation of the rationale for both Rules 26.1 and 44.1).
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er otherwise admissible, recognizes that the ordinary rules of
evidence are often time consuming, inefficient, expensive, and
generally inapposite to the problem of determining foreign
law.203 The second sentence also permits the court to engage
in its own research and to consider any relevant material free
of the confines of evidentiary rules because the court may have
at its disposal better foreign law materials than are presented
by counsel. 204 The final sentence makes the determination of
an issue of foreign law equivalent to a ruling on a question of
law, not fact, so that appellate review will not be narrowly confined. 205
Prior to adoption of Texas Rule 203, Texas had a statute
that affected the determination of foreign law in civil cases. 206
Article 3718 of the Texas Revised Civil Statutes Annotated
provided for the receipt in evidence of printed statute books of
foreign jurisdictions.207 However, article 3718 was restrictively
interpreted as applied to proof of statutes of foreign countries,208 and the content of foreign law was otherwise regarded as a matter of fact subject to strict rules of pleading and
proof. 209 In criminal proceedings, foreign law was traditionally
required to be proved up through a sponsoring witness. 2lO
Professor Ray commented that this seemed "a most expensive,
dilatory, and unsatisfactory method of making proof of foreign
203. FEn. R. CIV. P. 44.1 advisory committee's note.
204. Id.
205. Id.
206. TEx. REv. CIV. STAT. ANN. art. 3718 (deemed repealed as to civil actions,
effective Sept. 1, 1983, and as to criminal cases, effective Sept. 1, 1986).
207. Article 3718 provided:
The printed statute books of this State, of the United States, of the District
of Columbia, or of any State or territory of the United States or of any
foreign government, purporting to have been printed under the authority
thereof, shall be received as evidence of the acts and resolutions therein contained.
Id.
208. See, e.g., Martin v. Payne, 11 Tex. 292, 294 (1854) (holding that an unofficial publication could not be received as evidence of Tennessee law); Garza v. Greyhound Lines, 418 S.W.2d 595, 597 n.3 (Tex. Civ. App.-San Antonio 1967, no writ)
(finding that the court was "officially ignorant" of the applicable Mexican law and
could not rule on its similarity with Texas law).
209. See, e.g., Franklin v. Smallridge, 616 S.W.2d 655, 657 (Tex. Civ.
App.-Corpus Christi 1981, no writ); Garza, 418 S.W.2d at 597; see also 1 RAy, supra note 66, § 173, at 215; Thomas, supra note 186, at 56!.
210. See Fernandez v. State, 25 Tex. Ct. App. 538, 540, 8 S.W. 667, 668 (1888)
(holding that a Mexican statute book, which was authenticated by a witness, was
admissible to prove the laws of such state).
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law" and that it was "little short of tragic that the process of
judicial notice so admirably suited to this type of situation is
not available."211 Thus, Civil Rule 203 made significant and
desirable changes in Texas law in the area of judicial notice of
the law of foreign countries.212
The provisions in Texas Rule 203 that are not in the counterpart federal rules are designed to ensure adequate notice of
intent to prove foreign law and adequate opportunity for an
adverse party to controvert the materials or sources submitted
to the court. They are somewhat more detailed than the notice
provisions in Rule 202, reflecting the additional problems often
presented in proving the law of foreign countries.213 Thus far,
few judicial decisions have interpreted the scope or procedure
relating to the determination of foreign laws under Texas Rule
203,214 so it is not yet known how effective this provision will
prove to be in trial practice.
211. 1 RAy, supra note 66, § 173, at 215.
212. See R. Doak Bishop, International Litigation in Texas: Texas Rules of ElJidence and Recent Changes to the Texas Rules of CilJil Procedure, 36 BAYLOR L. REv.
131, 146-47 (1984) (concluding that Texas Rule 203 will increase the flexibility of
both the courts and the parties in determining foreign law). Although Texas Rule
203 does not expressly refer to the process as "judicial notice" and treating the determination of foreign law as a question of law is not consistent with the traditional
view of judicial notice, the placement of this rule in Article II of the Texas Rules of
Evidence, entitled "Judicial Notice," should justify denominating the process "judicial
notice" rather than merely a relaxation of the rules of evidence. Cf. TEx. R. CIV.
EVID. 104(a) & TEx. R. CRIM. EVID. 104(a) (by granting the trial court broad discretion in determining the admissibility of evidence, this rule eliminates the strict proof
requirements of article 3718 with respect to foreign law).
213. Texas Rules 201(c), 202, and 204 all authorize the judge to act upon his
own motion as well as that of either party. Texas Rule 203 is less clear as to
whether a judge could conduct a determination into the law of foreign countries
absent a party's request. Certainly nothing in the language of the rule prohibits the
judge from acting sua sponte. Additionally, the Federal Advisory Committee's notes
regarding Rule 44.1 of the Federal Rules of Civil Procedure include this statement:
"There is no requirement that the court give formal notice to the parties of its intention to • • . raise and determine independently an issue not raised by them.·
FEn. R. CIV. P. 44.1 advisory committee's note. As long as all parties have an adequate opportunity to be heard on the issue, courts should not interpret the rule to
preclude a trial judge from making an unrequested determination of foreign law.
214. For one of the few decisions, see Ossorio v. Leon, 705 S.W.2d 219, 221-22
(Tex. App.-San Antonio 1985, no writ) (finding that appellant "complied fully with
the applicable statutes in calling the foreign law to the attention of the court· when
she presented English and Spanish copies of the Civil Code of Mexico).
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RULE 204
DETERMINATION OF TEXAS CITY AND COUNTY
ORDINANCES, THE CONTENTS OF THE TEXAS
REGISTER, THE RULES OF AGENCIES
PUBLISHED IN THE ADMINISTRATIVE CODE
[civil rule]
A court upon its own motion may, or upon the motion
of a party shall, take judicial notice of the ordinances of
municipalities and counties of Texas, of the contents of the
Texas Register, and of the codified rules of the agencies
published in the Administrative Code. Any party requesting
that judicial notice be taken of such matter shall furnish
the court sufficient information to enable it properly to
comply with the request, and shall give all parties such
notice, if any, as the court may deem necessary, to enable
all parties fairly to prepare to meet the request. A party is
entitled upon timely request to an opportunity to be heard
as to the propriety of taking judicial notice and the tenor of
the matter noticed. In the absence of prior notification, the
request may be made after judicial notice has been taken.
The court's determination shall be subject to review as a
ruling on a question of law.
Comment: Judicial notice upon motion of a party is made
mandatory rather than discretionary.
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RULE 204
DETERMINATION OF TEXAS CITY AND COUNTY
ORDINANCES, THE CONTENTS OF THE TEXAS
REGISTER, THE RULES OF AGENCIES
PUBLISHED IN TlIE ADMINISTRATIVE CODE
[criminal rule]
Judicial notice may be taken of the ordinances of municipalities and counties of Texas, of the contents of the
Texas Register, and of the codified rules of the agencies
published in the Administrative Code. Any party requesting
that judicial notice be taken of such matter shall furnish
the court sufficient information to enable it properly to
comply with the request, and shall give all parties such
notice, if any, as the court may deem necessary, to enable
all parties fairly to prepare to meet the request. A party is
entitled upon timely request to an opportunity to be heard
as to the propriety of taking judicial notice and the tenor of
the matter noticed. In the absence of prior notification, the
request may be made after judicial notice has been taken.
The court's determination shall be subject to review as a
ruling on a question of law.
Commentary to Rule 204
Rule 204 was added to the Texas Rules of Civil Evidence
in 1984.215 It was included in the original promulgation of the
Texas Rules of Criminal Evidence in 1986.216 At common law,
the contents of ordinances and administrative rules and regulations were not subject to judicial notice because they were considered "in the nature of a special act or law.,,217 Thus, they
had to be proved up, usually .by. means of a certified copy from
215. See Rules of ElJidence: New Amendments, supra note 187, at 935.
216. Order Adopting Texas Rules of Criminal ElJidence (Tex. Crim. App. Dec. 18,
1985) (unpublished interim order), reprinted in TEx. RULES ANN. at 232 (Vernon
Special Pamphlet 1991).
217. See Howeth v. State, 645 S.W.2d 787, 788 (Tex. Crim. App. 1983).
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the custodian of the record. 218 In 1981, the Administrative
Procedure and'Texas Register Act was amended to provide for
judicial notice of the contents of both the Texas Register19
and the Texas Administrative Code.22O Local ordinances, however, were not subject to the Act and, until adoption of Texas
Rule 204, were not subject to judicial notice. 221
By its own terms, the rule applies only to Texas ordinances, rules, and regulations. Federal rules and regulations were
traditionally subject to judicial notice under Texas common
law.222 The Federal Register Act states that "the contents of
the Federal Register shall be judicially noticed,"223 and
commentators suggest that the federal act should bind state
courts under the Supremacy Clause. 224 However, Texas Rule
202 has been broadly written; therefore, if a question ever
arose as to the propriety of taking judicial notice of federal regulations, that question is now resolved, for the laws, ordinances, rules, regulations, judicial decisions, and common law of all
United States jurisdictions are now subject to judicial notice in
Texas COurtS.225 These matters need not be pleaded before
they are subject to judicial notice. 226
218. See, e.g., Chapa v. State, 729 S.W.2d 723, 729 n.1 (Tex. Crim, App. 1987)
(Onion, J., dissenting) (collecting common law cases which support the proposition
that the court cannot recognize an ordinance without proof); Lopez v. State, 649
S.W.2d 165, 166 (Tex. App.-EI Paso 1983, no pet.) (stating that county, district, and
appellate courts may not take judicial notice of municipal ordinances, but that an
ordinance that is jurisdictional to a county court serving as the appellate court of
review can be noticed by that particular court); Chambers v. Lee, 566 S.W.2d 69, 72
n.1 (Tex. Civ. App.-Texarkana 1978, no writ) (requiring a city ordinance to be
proved as any other fact). See generally 1 RAy, supra note 66, § 171, at 206·07 (dis·
cussing judicial notice of municipal and county ordinances); id. § 178, at 222·23 (dis·
cussing judicial notice of administrative rules and regulations); Wellborn, supra note
68, at 28.
219. TEx. REv. CIV. STAT. ANN. art. 6252-13a, § 4(c) (Vernon Supp. 1991) (stating
that "[t]he contents of the Texas Register are to be judicially noticed").
220. Id. art. 6252·13b, § 4 (stating that "[t]he codified rules of the agencies published in the Texas Administrative Code' . . . are to be judicially noticed").
221. The single exception was that a municipal court could take judicial notice of
an ordinance of its municipality. Howeth, 645 S.W.2d at 788. Upon appeal to a county court for a trial de novo, however, the state had the burden to prove the ordi.
nance or its terms. Id.
222. See Tippett v. Hart, 497 S.W.2d 606, 613 (Tex. Civ. App.-Amarillo 1973,
writ refd n.r.e.); Dallas Gen. Drivers, Warehousemen & Helpers v. Jax Beer Co.,
276 S.W.2d 384, 390 (Tex. Civ. App.-Dallas 1955, no writ).
223. 44 U.S.C. § 1507 (1988).
224. See MCCORMICK ON EVIDENCE, supra note 4, § 335, at 939 n.8.
225. TEx. R. CIV. EVID. 202 & TEx. R. CRIM. EVID. 202.
226. Daugherty v. Southern Pac. Transp. Co., 772 S.W.2d 81, 83·84 (Tex. 1989).
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Texas Rule 204 does not contain the language found in
both Rules 201(f) and 202 that provides that courts may take
judicial notice at any stage of the proceeding. Although the
language of the Texas Rule 204 is seemingly broad enough to
permit an appellate court to take judicial notice of ordinances,
the failure to include the same phrase found in Rules 201(f)
and 202 could be construed as an intended bar to such action.
Thus, it might be inappropriate for appellate courts to take
judicial notice of ordinances that were not noticed in the trial
COurt. 227 Criminal Rule 204 differs from Civil Rule 204 to the
extent that under the latter rule a judge may take judicial
notice without being asked to do so by either party. Conversely,
under Criminal Rule 204, counsel must request the court to
take judicial notice of an ordinance.228 The judge should not
do so on his own initiative.229
Because municipal and county ordinances are difficult to
research and verify, the careful practitioner should provide the
trial court with a certified copy of the applicable ordinance and
ensure that this copy is included in the court's record. In the
absence of a complete record, the appellate court may be unable
to determine precisely which law was at issue and may refuse
to accept a bare record recital that the trial court took judicial
notice of a particular ordinance.230
227. See Hollingsworth v. King, 810 S.W.2d 772, 774 (Tex. App.-Amarillo) (noting that Rule 204, unlike Rules 201 and 202, does not address the question of
whether an appellate court may take judicial notice for the flrSt time on appeal, but
refusing to decide the issue because the appellate court was not presented with sufficient information to take judicial notice), writ denied per curiam, 816 S.W.2d 340
(Tex. 1991).
228. Martin v. State, 731 S.W.2d 630, 631 (Tex. App.-Houston [1st Dist.] 1987,
pet. refd) (holding that evidence of the contents of a municipal ordinance is insufficient when the only evidence of the municipal ordinance is an officer's testimony
that there were speed limit signs posted and no request was made that judicial
notice be taken of the ordinance).
229. See Dedonato v. State, 789 S.W.2d 321, 327 (Tex. App.-Houston [1st Dist.]
1990) (O'Connor, J., dissenting) (noting the difference between Rule 202, which
would permit a judge to take judicial notice on his own motion, and Rule 204, which
requires the proponent to request a judge to take judicial notice and ~omply with
predicate requirements), affd, 819 S.W.2d 164 (Tex. Crim. App. 1991).
230. See Metro Fuels, Inc. v. City of Austin, 827 S.W.2d 531, 532 (Tex.
App.-Austin 1992, n.w.h.) (stating that "parties must both comply with the provisions of Rule 204 and make the ordinance part of the trial-court record" if the appellate court is to review the propriety of judicial notice of municipal or county ordinance).
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