ARTICLE II: JUDICIAL NOTICE

HeinOnline -- 30 Hous. L. Rev. 193 1993-1994

ARTICLE II: JUDICIAL NOTICE

Commentary by Murl A. Larkin"

1993 Update by Cathleen C. Herasimchuk

According to Professor Thayer, l judicial notice is one ofthe oldest doctrines of the common law and is traceable to twoancient maxims: manifesta non indigent probatione (that whichis known need not be proved) and non refert quid notum sitjudici, si notum non sit in forma judicii (it matters not what isknown to a judge if it is not known in judicial form).2 Theformer, 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. Morelikely, however, judicial notice is the pillar around which themodern doctrine was constructed. In any event, judicial noticeauthorizes the factfinder, under the guidance of the trial judge,to accept the truth of certain facts without the necessity offormal proof.4

The principal purpose served by judicial notice is to promote judicial efficiency by avoiding the expenditure of timeand 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 Company1898).

2. [d. at 277. Both maxims are traceable to Bracton's Note Book and casesfrom 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) (statingthat "[t]he whole purpose of the rule of judicial notice is one of convenience to savetime in the trial by eliminating the need for proof of facts about which there isreally 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 isthe proponent of the judicially noticed fact relieved of the burden of presenting evidence attesting to that fact,7 but alsoonce judicial notice has been taken, the party against whomthe noticed fact operates is, at least under the traditional viewin civil cases, prohibited from challenging the veracity of thatfact.s Because judicial notice saves significant time--andavoids the "cumbrous process of formal proof,,,g several legalscholars argue that the use of the doctrine should be expanded.to However, in view of the significant potential for abuseand consequent injury or unfairness to the party against whoma noticed fact would operate, the doctrine of judicial notice hasdeveloped slowly. The most prevalent limitation requires thatjudicial notice be confined to facts which are of common knowledge or of readily verifiable certainty.11 Texas courts generallyrecognized this limitation prior to the adoption of the TexasRules 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 ofjudicially noticeable facts, then those facts become another "litany sung to judicialnotice").

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 fortaking evidence by the usual procedures"), cerl. denied, 421 U.S. 913 (1975); TexasSec. Corp. v. Peters, 463 S.W.2d 263, 265 (Tex. Civ. App.-Fort Worth 1971, nowrit) (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 absolutetruth 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 noticeas "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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1993] JUDICIAL NOTICE Rule 201

tim adoption of Rule 201 of the Federal Rules; Rule 202 is arevised version of former Rule 184a of the Texas Rules of CivilProcedure;13 Rule 203 is a significantly expanded version ofRule 44.1 of the Federal Rules of Civil Procedure, which issubstantially the same as Rule 26.1 of the Federal Rules ofCriminal 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 adjudicativefacts and law. Texas Civil Rule 201 differs from Federal Rule201 only to the extent that subdivision (g) of the former contains no criminal-applicability language. Similarly, the criminalrule is the same as the federal version except for deleting thesentence in subdivision (g) regarding jury instructions in civilactions. Because the Texas Rules are otherwise identical totheir 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 aresimilar, decisions rendered under them are generally applicablein both civil and criminal proceedings.

13. Rule 184a was added to the Texas Rules of Civil Procedure by an orderdated June 16, 1943, and was first amended on October 10, 1945. The rule wasamended 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 CivilRules 202 and 203. Both rules were repealed effective September I, 1990 becausethe material is covered by Civil Rules 202 and 203. Changes to Texas Rules of CivilProcedure, Texas Rules of Appellate Procedure, and Texas Rules of Civil Evidence, 53TEx. B.J. 589, 600 (1990).

14. See, e.g., Bodin v. State, 807 S.W.2d 313, 317 (Tex. Crim. App. 1991) (notingthat "[g]enerally the Texas Rules of Criminal Evidence were patterned after theFederal Rules of Evidence. Cases interpreting federal rules should be construed forguidance with regard to the Texas Evidence Rules, unless the Texas rule clearlydeparts from its federal counterpart"); Montgomery v. State, 810 S.W.2d 372, 376(TeL Crim. App. 1990) (recommending that "when the Texas Rule duplicates theFederal Rule, greater than usual deference should be given to the federal court'sinterpretations"); 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 Rule801(dX1)(B) for Criminal Rule 801(eX1)(B) was to adopt the interpretation of theformer as well); Rodda v. State, 745 S.W.2d 415, 418 (Tex. App.-Houston [14thDist.] 1988, pet. refd) (stating that Civil Rule 403 was patterned after its federalcounterpart 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 rulegoverns only judicial notice of adjudicative facts.

(b) Kinds of Facts. [civil and criminal rule] A judicially noticed fact must be one not subject to reasonabledispute in that it is either (1) generally known within theterritorial jurisdiction of the trial court or (2) capable ofaccurate and ready determination by resort to sourceswhose accuracy cannot reasonably be questioned.

(c) When Discretionary. [civil and criminal rule] Acourt may take judicial notice, whether requested or not.

(d) When Mandatory. [civil and criminal rule] Acourt shall take judicial notice if requested by a party andsupplied with the necessary information.

(e) Opportunity to Be Heard. [civil and criminalrule] A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicialnotice and the tenor of the matter noticed. In the absenceof 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 judiciallynoticed.

(g) Instructing Jury. [criminal rule] The court shallinstruct the jury that it may, but is not required to, acceptas conclusive any fact judicially noticed.

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Commentary to Rule 201

Rule 201

Rule 201(a): Scope of the Rule

Matters that may be judicially noticed are often dividedinto three categories: adjudicative facts, legislative facts, andlaw.15 These categories are important because different rulesapply to each. Adjudicative facts are "those to which the law isapplied in the process of adjudication."16 These facts normallygo 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 withwhat motive or intent-the court or agency is performing anadjudicative function, and the facts are conveniently calledadjudicative facts."19

In contrast, legislative facts are "those which help thetribunal to determine the content of law and policy and toexercise its judgment or discretion in determining what courseof action to take. Legislative facts are ordinarily general anddo not concern the immediate parties."20 Legislative facts include, for example, information concerning the impact of priorand proposed law used to facilitate lawmaking through judicialdecisions, information concerning the legislative history of astatute used to assist in its interpretation, and informationrespecting the basis for the exercise of legislative power usedto enable a court to fulfill its constitutional responsibility.21

15. Professor Kenneth Davis flX'St suggested that judicially noticed facts shouldbe categorized as either adjudicative or legislative. Kenneth C. Davis, An Approachto 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 ONEVIDENCE, 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 legislativeelement is either absent, unimportant, or interstitial, because in most casesthe 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 toresort to legislative facts, whether or not those facts have been developed onthe 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 bythe court's own sense of propriety.22 This view renders anylimitation inappropriate as to the indisputability of the factsand any formal requirements of notice or findings of facts.23

According to Professor Davis, "judge-made law would stopgrowing 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 thedomain of the indisputable.'''24

The judicial function of determining law is traditionallycharacterized as within the concept of judicial notice.25 "Law"includes, of course, not only the law of the forum26 but alsothe law of sister states27 and foreign countries.28 When thecontent 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 whichthey refer, or he may refuse to do so. He may make an independent search for persuasive data or rest content with whathe has or what the parties present.29

When other than domestic law is involved, determination of thelaw is generally considered a question of fact, which is subjectto the requirements of formal pleading and proof.30 Regardlessof 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 threeprincipal purposes for taking judicial notice of legislative facts are 1) to decide uponthe constitutional validity of a statute, 2) to interpret a statute, and 3) to extend orrestrict 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 thejudge 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 ju-dicial 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 oflegislative facts or law.31 According to the AdvisoryCommittee's note on Federal Rule 201, the omission of anytreatment of legislative facts was due to the fundamental differences between adjudicative facts and legislative facts.32 An additional unarticulated reason was undoubtedly that the rulewas unnecessary because substantially no problems had beenencountered with judicial notice of legislative facts.33 The Advisory Committee did not comment on why it made no attemptto cover judicial notice of law but did mention that judicialnotice of foreign law was expressly covered by rules of federalcriminal and civil procedure.34

Although Texas courts have long utilized judicial notice inall three categories, they have not frequently found it necessaryto identify and categorize judicial notice of legislative facts.35

31. FED. R. EVID. 201 advisory committee's note, subdiv. (a). Rule 44.1 of theFederal Rules of Civil Procedure and Rule 26.1 of the Federal Rules of CriminalProcedure, which remained intact after the Federal Rules were enacted, deal withjudicial 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 heroinis equivalent to the possession of imported heroin because heroin is not produced inthe United States). Judicial notice of legislative facts is particularly prevalent inSupreme Court death penalty jurisprudence. See Ford v. Wainwright, 477 U.S. 399,407·10 (1986) (relying upon common law principles, religious postulates, and statestatutes 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 thatthe death penalty is not always "cruel and unusual" punishment).

A substantial attempt has not been made to regulate such action. Restrictionsin this area deal principally with the use of extrinsic aids, such as the opinion of astatute's author and debates and discussions on the floor of the legislature, in theinterpretation 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 ifCongress' intention is unmistakably clear in the language of the statute); UnitedStates v. James, 478 U.S. 597, 606 (1986) (noting that judicial inquiry is completewhen 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 newtextualism proposes that legislative history is irrelevant if the Supreme Court hasdetermined 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, thelegislative 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 ofadjudicative facts, thus indicating that this area is in need ofcodification. In the category of judicial notice of law, the TexasSupreme Court found it advisable to define the scope of judicialnotice of the law of every other state, territory, or jurisdictionof the United States in the Rules of Civil Procedure.36 Beyondthis scope, however, the doctrine is controlled by individualdecisions.

One category of knowledge that is not within the concept ofadjudicative facts and that is not subject to the limitations ofjudicial notice under Rule 201 is what the Federal AdvisoryCommittee 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 regardingmankind, human affairs, and the environment in which we liveand that must be utilized without formal notice in drawinginferences, 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 statedthat 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.2d723, 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, seeMitchell v. Town of Refugio, 265 S.W.2d 261, 267 (Tex. Civ. App.-San Antonio1954, writ refd). The Mitchell court commented that "fj]udicial knowledge of a courtmay, of course, extend beyond the personal knowledge of the judges making up thecourt and, as a practical matter, information in the nature of evidence is received inorder to enable a court to intelligently make use of its judicial knowledge." IeL; seealso Lanes v. State, 767 S.W.2d 789, 798·800 (Tex. Crim. App. 1989) (relying uponsociological studies and statistical reports to conclude that the present·day juvenilejustice 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 andstatutes as persuasive authority in deciding to extend common law wrongful deathliability 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 tonote 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, judgeand jury included, furnishes, from non-evidence sources within himself, thesupplementing information that the "car" is an automobile, not a railroadcar, that it is self·propelled, probably by an internal combustion engine, thatit 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 necessarymental 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 refersto this information as "the residual data the jury members bring along with them asrational human beings: MCCORMICK'S HANDBOOK OF THE LAw OF EVIDENCE § 329, at762 (Edward W. Cleary ed., 2d ed. 1972) [hereinafter MCCORMICK'S HANDBOOK II).Other authority states that this information is based upon the general experiencethat 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"). Seegenerally 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 thecompeting 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 theshort-haul status of National-to the means it has adopted." 679 F.2d 1184, 1191 (5thCir. 1982). The court noted that "[h]aving traveled through these two airports, wemay 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 requiresclear perception, quick reaction, and adept motor skills. Our everyday useand reliance on the automobile is unquestionable. Also unquestionable is thetragic relationship between intoxicated drivers and fatal or injury-producingaccidents.

732 S.W.2d 306, 311 (Tex. 1987). For other supportive cases, see Missouri-PacificRR. v. Kimbrell, 160 Tex. 542, 546-47, 334 S.W.2d 283, 286-87 (1960) (finding thatcommon 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 acquaintancewith the affairs of life and the motives of men acting under different conditions, areespecially called into request" in determining questions of negligence); City of Austinv. SeIter, 415 S.W.2d 489, 501 (Tex. Civ. App.-Austin 1967, writ refd n.r.e.) (statingthat "[o]ne does not die from drowning without unpleasant changes occurring withinthe 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 interestrates 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 itduring 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, 145Tex. 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 thejurors.43

Thus, judicial notice of both legislative facts and "legalreasoning" 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 thesetypes of judicial notice.46 Some commentators suggest, however, that in the realm of legislative facts, the parties shouldhave an opportunity to be heard and to rebut the reliability ofthe 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 factsshould be confined to substantially indisputable facts or to factsthat are unlikely to be disputed. Even the evidence greats weredivided on the issue: Professors Morgan and McCormick arguedthat judicial notice should be confined to indisputables48 while

to discuss matters of common knowledge); Blue Diamond Motor Bus Co. v. Hale, 69S.W.2d 228, 230 (Tex. Civ. App.-San Antonio 1934, writ dism'd) (allowing jurors torely 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.2d624, 626 (1947) (stating that the jury may consider matters of general knowledge inits deliberations, but that it is a better practice not to instruct the jurors to considermatters 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], at200-15 to 200-20 (1990) (discussing the distinction between legislative and adjudica·tive facts). Subdivision (a) of the advisory committee's note to Federal Rule 201states that "the regulation of judicial notice of facts by the present rule extends onlyto 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 ANDCRIMINAL § 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). Foran example of extensive judicial consideration of and reliance upon statistical data,professional manuals, psychological studies, and law review articles in determiningthe 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

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Professors Thayer, Wigmore, and Davis contended that judicialnotice should extend to facts that are somewhat less absolute.49 Both sides muster cogent arguments to support theirpositions and both contend that the weight of existing case lawsupports their views.50 A substantial split also exists amongthe states on this issue.Sl In providing that "[a] judicially noticed fact must be one not subject to reasonable dispute,,,52 theFederal Rules followed the Morgan-McCormick view requiringsubstantial indisputability. The Advisory Committee's note onthe federal rule stated that this more stringent standard wasbased upon "the theory that these considerations call for dispensing with traditional methods of proof only in clearcases.,,53

Several older cases set forth an even more rigid standard.Judicial notice was permitted only of facts that were certainand indisputable.54 Most modern decisions and the FederalRules reject this standard because any rule of absoluteindisputability would seriously restrict the scope of judicialnotice and place an unwarranted burden on the trial judge.55

Texas decisions give lip-service to this rigid standard by statingthat adjudicative facts must be "certain and indisputable" to be

with the Wigmore-Thayer view of judicial notice and arguing that "the weight ofreason and the prevailing authority" dictate that judicial notice be confined to indisputable facts); John T. McNaughton, Judicial Notice-Excerpts Relating to thellfolgan-Wigmore Controversy, 14 VAND. 1.. REv. 779, 779 (1961) (noting thatMorgan's view restricts judicial notice to "patently indisputable" matters).

49. See Davis, supra note 24, at 76-78 (propounding the Wigmore-Thayer viewand arguing that trial judges should entertain evidence which contradicts judiciallynoticed 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 severalstates).

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 asan 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 strictenough and that judicial notice should be restricted to facts immediately observableor 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 becomesclear that the courts were actually applying the intermediatestandard adopted by the federal rule. Texas Rule 201(b) followsthis approach, thus effecting no change in Texas law.

Federal Rule 201(b) includes two kinds of facts within thescope 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 andMcCormick.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 thefederal rule. We can therefore assume that the drafters intended to retain the meaning of the federal language for theTexas rule.59 Because the fact categories defined in Texas Rule201(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 commonlaw, a fact could be judicially noticed as a notorious fact if itwas within the common knowledge of all persons of ordinaryunderstanding and intelligence.5O Under Federal Rule 201(b),this extremely broad restriction was wisely reduced to generalknowledge by persons "within the tenitorial jurisdiction of thetrial court," a standard which is now commonly accepted as asufficient basis for judicial notice.61

56. See Johnson v. Cooper, 379 S.W.2d 396, 399 (Tex. Civ. App.-Fort Worth1964, no writ) (finding that the trade meaning of "square" was not "certain andindisputable"); Harper v. Killion, 345 S.W.2d 309, 311 (Tex. Civ. App.-Texarkana)(holding that Jacksonville's location within Cherokee County could be determinedwith 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) (statingthat judicially noticed facts must be "generally accepted by mankind as true"); In reBuszta's Estate, 186 N.Y.S.2d 192, 193 (Sur. Ct. 1959) (holding that judicial notice isproper 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 notrequired to, take judicial notice of matters of common knowledge and upholding atrial 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 areappropriate subjects for judicial notice.62 The decisions havediffered. 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 knowledgein the jurisdiction, which every one [sic] of average intelligenceand knowledge of things about him can be presumed toknow.t>63 Other cases merely inquire whether "a fact is wellknown by all reasonably intelligent people in the community.>064 The language in these latter cases is consistent withthat contained in Texas Rule 201(b)(1). Indeed, some post-RulesTexas decisions explicitly rely upon prior case law in statingthat geographic facts of common notoriety within the districtare 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 knowledgethat in many instances the owner of a mineral estate can and does cause severedamage to the surface estate while mining); see also State v. Armendariz, 449N.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 themdown a drain).

62. See Sudderth v. Grosshans, 581 S.W.2d 215, 217 (Tex. Civ. App.-Austin1979, 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 notorietyand 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 BitulithicCo., 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, 417S.W.2d 154, 157·58 (Tex. 1967) (finding that courts often judicially notice well knowngeographical 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 notmeet 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 factsmay 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 understandingand 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 inholding that "[h]ighway nomenclature and designations within the trial court's jurisdiction are matters of common knowledge and proper subjects for judicial notice" andthat 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 anordinary fact by the trial judge is not equivalent to commonknowledge by persons in the community and, therefore, a trialjudge may not take judicial notice on such basis.66 Courtshave also held that judicial notice may not be taken of factsthat are commonly known by only a specially informed class ofpersons.67 These restrictions continue to apply under the Texas Rules.68

Rule 201 (b) (2): Verifiably certain facts. Federal Rule201(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 at6210 Montana, two blocks from the intersection of Wieland and Airport in EI PasoCounty, Texas, was a sufficient basis for a jury to conclude from common knowledgethat 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 trialjudge personally knew that a certain location satisfied statutory requirements, thecourt could not take notice of that fact because personal knowledge is not a properbasis 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 afact that is not subject to judicial notice should take the stand as a witness andtestify 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 ofmatters not in the record is not proper for judicial notice); 1 Roy R. RAy, TEXASLAw 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 relievedfrom providing competent evidence of the term "square" even though the specificmeaning 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 totake judicial notice that an increase in gas prices was due solely to economic forcesbecause this conclusion was based on information which persons of average knowledge and intelligence did not have), rev'd on other grounds, 154 Tex. 573, 280S.W.2d 723 (1955). Note, however, that facts of a specialized nature, which areknown 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 andaccompanying text.

68. See, e.g., Stowe v. State, 745 S.W.2d 568, 570 (Tex. App.-Houston [lstDist.] 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 judicialnotice); see also Olin G. Wellborn III, Judicial Notice Under Article II of the TexasRules 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 andready determination by resort to sources whose accuracy cannotreasonably be questioned.na9 Texas case law also follows thisdoctrine.7o In Eagle Trucking Co. v. Texas Bitulithic CO.,71the 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 deemstrustworthy."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 bemore liberal under Texas Rule 201(b)(2) than it was under thecommon law. Prior Texas decisions had indicated that courtscould not take judicial notice of substantially indisputable factsmerely because those facts could be ascertained by reference todictionaries, encyclopedias, or other publications.73 Post-Rulesdecisions, however, liberalize such holdings. For example, inBender v. State,74 the court held that under Rule 201 an appellate court could, "by resort to obtainable, accurate referencematerials,,,75 take judicial notice of the fact that "the 2100block of West Loop South, is located in Houston, Texas and

69. See MCCORMICK ON EVIDENCE, supra note 4, § 330, at 924; 9 JOHNH. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIAlSAT COMMON LAw § 2571, at 548 (3d ed. 1940) (citing statutes which expressly permit judicial notice through extraneous verifiable sources, and stating that such factsfall within the scope of judicial notice); Morgan, supra note 55, at 66 (explainingthat Rule 801 of the MODEL CODE OF EVIDENCE, which allows judicial notice ofverifiably certain facts, simply restates settled common law doctrine); Note, JudicialNotice 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 scopeof 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 readilyverifiable); 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 factto be noticed is so notorious or its existence so easily ascertainable that proof wiIlnot 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 trademeaning of "square,· even though the definition might have been found in a dictionary).

74. 739 S.W.2d 409 (Tex. App.-Houston [l4th Dist.] 1987, pet. refd).75. 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 mightbe 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, Texascourts may take judicial notice of a wide variety of verifiablycertain facts.79

Courts have long taken judicial notice of various scientificprinciples which justify the evidentiary use of procedures employing these principles, e.g., radar, blood and breath tests forintoxication, fingerprinting, and ballistics.so This policy is anenormous time-saving tool because it relieves courts from thenecessity 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 ofadjudicative facts that are open to reasonable dispute, even ifthe 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 specifiedin 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 thenecessity 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 certainstreets and intersections were located on a federal enclave); Church of ScientologyInt'l v. Elmira Mission, 614 F. Supp. 500, 504 n.4 (W.D.N.Y. 1985) (taking judicialnotice of data compiled by a local auto club which indicated the distance betweenthree cities in the state), relJ'd on other grounds, 794 F.2d 38 (2d Cir. 1986); Dearyv. Evans, 570 F. Supp. 189, 197 n.ll (D.V.I. 1983) (taking judicial notice that adowntown business area was small and that two buildings were within severalblocks 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 that12:01 p.m. on March 18, 1986 was an early afternoon on a Tuesday that was not astatutory 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 takejudicial notice of the National Electric Safety Code after providing the oppositionwith an opportunity to rebut its accuracy); Wagner & Brown v. E.W. Moran DrillingCo., 702 S.W.2d 760, 773 (Tex. App.-Fort Worth 1986, no writ) (permitting judicialnotice of the discount rate on 9O-day commercial paper in effect at a federal reservebank 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 partiesunder Texas Rule 201(b)(2),82 but it may not take notice ofrecords from a different court.83 This principle is in accordwith prior Texas law.84 However, the doctrine which precludesjudicial notice of recorded proceedings in other courts has beencriticized as illogical.85 Further, if judicial notice of a court'sprior records is proper, it makes no difference whether notice istaken 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 appealsacted 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); Jubertv. State, 753 S.W.2d 458, 459·60 (Tex. App.-Texarkana 1988, no pet.); 8ee alBoUnited States v. Montemayor, 666 F.2d 235, 237 (5th Cir. 1982) (allowing a districtcourt to take judicial notice of allegations and information that were revealed duringcivil proceedings before the court when determining the appropriate amount of bailfor a criminal defendant).

83. See Penix v. State, 748 S.W.2d 629, 630·31 (Tex. App.-Fort Worth 1988, nopet.) (holding that Criminal Rule 201 did not change the common law rule that anappellate 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 recordsof another court).

84. See Wilson v. State, 677 S.W.2d 518, 523 (Tex. Crim. App. 1984) (holdingthat a trial court may not take judicial notice of records of another court); Gardnerv. Martin, 162 Tex. 156, 158, 345 S.W.2d 274, 276 (1961) (allowing a trial court totake judicial notice of records in its own court concerning the same subject matterbetween 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 wouldappear manifest that these public documents are logically subject to judicial noticeas readily verifiable factsj. Indeed, it might seem anomalous that dictionary entriescarry 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 maytake 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) (holdingthat a visiting judge could take judicial notice of an instrument containing the termsand conditions of probation during a hearing on a motion to revoke probation be·cause probationary conditions were easily verifiable from reliable sources); McCowanv. 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 judgewho presided over a criminal trial and later presided over ahearing to revoke probation for the same offense could takejudicial notice at the second hearing of the evidence admittedat the previous tria1.87 This rule probably has not survivedadoption of Texas Rule 201 because it relied upon matters peculiarly within a particular judge's personal knowledge whichwere neither "notorious" nor capable of accurate and readydetermination by resort to indisputably accurate sources.88

While judicial proceedings may be subject to judicial notice inproper circumstances, statements or events that occur in thepresence of a judge but outside of a judicial proceeding are notsubject to judicial notice.89

Under Texas common law uncertainty existed as to whether trial or appellate courts could take judicial notice of the factof incorporation of a Home Rule city.90 In a post-Rules decision, however, the court of criminal appeals announced that itcould 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 thatcourts 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 theBarrientez rule survived enactment of Texas Rule 201(b».

89. See Ex parte Rains, 555 S.W.2d 478, 481 (Tex. Crim. App. 1977) (holdingthat a judge's personal knowledge of matters not contained in the official judicialrecords of the court is not a proper subject for judicial notice); Stowe v. State, 745S.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 Rule201).

90. Compare Bryce v. Corpus Christi Area Convention & Tourist Bureau, 569S.W.2d 496, 501 (Tex. Civ. App.-Corpus Christi 1978, writ refd n.r.e.) (holding thatneither a trial nor appellate court could take judicial notice of a city charter unlessit 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 judicialnotice 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 inthe 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 SanAntonio'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 refdn.r.e.) (citing the precedent that courts "mayor must take judicial knowledge of theprovisions of city charters").

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tation to demonstrate that fact to either the trial or appellateCOurt.91 The court reasoned that because "it is certainly easyenough to obtain from the office of the Secretary of State . . . acertification as to whether a particular city has filed a HomeRule charter."92 there was no need for the State to eitherplead or prove that San Antonio was an incorporated city underthe Texas arson statute.

In summation. the kinds of adjudicative facts judiciallynoticeable in Texas prior to the adoption of Texas Rule 201were substantially the same as under that rule. The TexasCourt of Criminal Appeals even adumbrated the language ofTexas Rule 201(b) in Lejeune v. State.93 when noting that"t[t]he theory [of judicial notice] is that. where [1)] a faet iswell-known by all reasonably intelligent people in the community. or [2)] its existence is so easily determinable with certaintyfrom sources considered reliable. it would not be good sense torequire formal proof: ,,94 In applying these rules. Texas courtshave held that courts must take care in exercising the authority to take judicial notice and that every reasonable doubtshould be resolved in the negative.95 This holding is fully consistent with the soundly based tradition of caution referred toby the Advisory Committee in its note on Federal Rule201(b).96 It is apparent. therefore, that the adoption of thisrule made no significant change in Texas law.

Rules 201(c) & (d): Discretionary and Mandatory Rules

According to the Advisory Committee's note to Federal Rule201. these two subdivisions reflect existing practice. are simpleand workable, and avoid troublesome distinctions in many situations.97 In contrast to the California approach of separatelyenumerating various matters which must or may be judiciallynoticed.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 judicialnotice whether or not a party requested such notice, did notchange 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 bejudicially noticed was indistinct, the line probably existed somewhere between facts that, by judicial precedent, had becomefixed as proper for notice and facts that had only relativelyrecently became so notorious that judicial notice was authorized.102 When judicial notice was discretionary, whether thecourt took notice depended on the nature of the subject, theissue involved, and the apparent justice of the case.103 Rule201(d) changed prior Texas practice by making all facts mandatorily noticeable: 1) if properly requested by a party; 2) if thecourt is supplied with the appropriate information; and, ofcourse, 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) (allow

ing 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. MissouriPac. 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 theplaintiff's cause of action under a promissory note, though not formally requested todo so); Texas Sec. Corp. v. Peters, 463 S.W.2d 263, 264-65 (Tex. Civ. App.-FortWorth 1971, no writ) (presuming that the trial court judicially noticed the date onwhich pleadings were filed and their contents, though not formally requested to doso): Buckaloo Trucking Co. v. Johnson, 409 S.W.2d 911, 913 (Tex. Civ. App.-CorpusChristi 1966, no writ) (presuming that the trial court judicially noticed the fact thatan 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 factswhich may be noticed and those which must be noticed is "difficult to draw"): seealso James v. State, 546 S.W.2d 306, 310 (Tex. Crim. App. 1977) (noting that underthe common law, courts have wide discretion regarding what facts may be judiciallynoticed).

102. See Clement v. McNiel, 328 S.W.2d 823 824 (Tex. Civ. App.-Waco 1959, nowrit) (explaining that the progress of society impacts the scope of judicial notice).According to the decision rendered in Skinner v. HCC Credit Co., judicially noticedfacts are "largely within the discretion of the trial court," and the test on appeal iswhether there was an abuse of discretion. 498 S.W.2d 708, 711 (Tex. Civ. App.-FortWorth 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.-Austin1954), 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 practicalsignificance of the change is that a trial judge's refusal to takejudicial notice when requested to do so and supplied with thenecessary information may lead to an appellate reversal underTexas Rule 201 if judicial notice would have been within thecourt's discretion to refuse under the common law. For example,in Drake v. Holstead,l06 the Beaumont Court of Appeals heldthat trial judges may be required to take judicial notice ofmathematical calculations if they are supplied with the necessary mathematical computations.107 In Drake, the trial courterred in refusing to take judicial notice of rates of speed afterthe plaintiff supplied the court with a typewritten sheet ofmathematical computations.lOS The court of appeals notedthat mandatory judicial notice applies to scientific facts andprinciples that "ought to be known by men of ordinary understanding and intelligence:,l09 However, while the trial judgein Drake erred in declining to take judicial notice, the errorwas harmless.110

App.-Houston [14th Dist.] 1990, no writ) (citing Cleontes v. City of Laredo, 777S.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 dis

tinction 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 befaulted 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 trialcourt could have taken judicial notice of time·distance mathematical calculations thatthe defense attorney wished to use during closing argument, it was not error tosustain the opponent's objection to their use when the attorney failed to provide thecourt 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 & KEN

NETH 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 consideredsimple 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 notaffect the ultimate computation, the trial court erred in refusing to take judicialnotice 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 ofthe 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 thespeed 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 theparty who would have benefitted from judicial notice may notcomplain in the reviewing court that the trial court abused itsdiscretion.1l1 Under pre-Rules decisions, Texas appellatecourts were reluctant to take judicial notice of adjudicative factson appeal for the first time.112 Although that same concern isexpressed 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 noticecannot be taken; it simply means that notice is not mandatory. The trialcourt can, as a matter of discretion, take judicial notice on the basis of anuntimely request, so long as the opponent is given an opportunity to beheard 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. InColonial 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 transferof 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 toestablish a creditor status and, thus, had failed to present a prima facie case. Id. at457. 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 forColonial. Id. The court of appeals reversed and remanded, reasoning that while thetrial court could have taken judicial notice of the judgment during trial, the fact thatit did not do so at that time reasonably led Logistics to believe that it did not needto 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 thatbecause the entire content of a document is a proper and necessary source for thetrial court to notice in determining the document's legal effect, the court would takenotice of a document's entire content on appeal even though the record was silent asto 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 Alamodid not breach its duty to the shipper and rendered judgment for Alamo. Id. Whilethe 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 doso because the tariff was never presented to the trial judge. Id. at 354. The court ofappeals refused to reverse the trial court's judgment based upon materials, whetherevidentiary 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 resultsmay be reconciled by dividing appellate judicial notice into twocategories: 1) notice that upholds the lower court; and 2) noticethat undermines the lower court. If judicial notice of a fact supports the integrity of the factfinder's ruling or verdict, judicialnotice can be taken for the first time on appeal.1l5 If judicialnotice would reverse the judgment or ruling of the factfinder,such notice should not normally be taken for the first time onappeal absent a timely request in the lower COurt.1l6

Texas Rule 201(d) also does not define what is "necessaryinformation" for the requesting party to furnish. Presumably noextrinsic information is required for judicial notice of "notorious" facts because all the parties and the judge are well awareof 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, 721S.W.2d 430, 434 (Tex. App.-Houston [lst Dist.] 1986, writ refd) (stating that anappellate court is not confined solely to the trial record for "evidence" of the laws ofa sister state).

115. See, e.g., Trujillo v. State, 809 S.W.2d 593, 595-96 (Tex. App.-San Antonio1991, 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 haverejected any inadmissible testimony and instead taken judicial notice of accreditationat any stage of the proceeding, a fact easily ascertainable from a state agency); Exparte Preston, 801 S.W.2d 604, 605 (Tex. App.-Houston [lst Dist.] 1990) (honoringthe appellant's request to take judicial notice of the record of a previous prosecutionwhile affuming the trial court's decision and holding that the appellant's argumentwas 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 thatthe city of Mesquite had a population greater than 10,000 and was thus subject to aformer 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 neverrequested 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, nowrit) (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 heldthat

a district court sitting in Cherokee County can judicially notice the certainand indisputable fact of common knowledge that the entire city of Jacksonville is located in such county . . . notwithstanding the district court wasnot formally requested so to do and did not formally announce that it haddone 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 900Westheimer Road is in the city of Houston, and any additionalinformation which the judge or opposing party might require todemonstrate that the source is one "whose accuracy cannotreasonably be questioned." For example, if the frontpiece of thekey map states that it was compiled by the City of Houstonbased upon information supplied by its corps of engineers, suchinformation 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 ofthose individuals who work within a particular profession, information contained in that source is sufficiently accurate forjudicial notice. The Texas Rules themselves do not apply to theprocedure by which a court takes judicial notice and thus anyreliable matter may be used, despite its evidentiary inadmissibility.119 This policy is in accord with prior Texas law.l20 Ifthe 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 dueprocess may be violated when judicial notice is taken of a factand the party against whom the fact operates is not given anopportunity to challenge it. l22 The Advisory Committee on theFederal Rules echoed this sentiment when it noted that such

[d.

118. Official government maps have "long been held proper subjects of judicialnotice." Government of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979); seeWilliams v. Chew, 19 S.W.2d 68, 69 (Tex. Civ. App.-1929, no writ) (noting that thecourt 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 isjudicially noticed is not evidence to establish the fact and is not subject to the rulesof 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 requestunder the mandatory section of Rule 201(d) because he had failed to supply thecourt 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) grantedparties the right to be heard regarding both "the propriety oftaking judicial notice and the tenor of the matter noticed.,,124Texas Rule 201(e) adopts verbatim the language of the federalrule.125

To understand the proper context of Rule 201(e), it must beconsidered in conjunction with Rules 201(b) and 201(g). As indicated, Rule 201(b) provides that a court can only take judicialnotice of facts that are not subject to reasonable dispute. Fromthis 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 noevidence before the jury in disproof [of the fact]."127 Therefore,the opportunity to be heard provided by Rule 201(e) is limitedto challenges made directly to the judge. Other states, havingadopted positions different from those found in Federal andTexas Rules 201(b) and (g), hold differently on the Rule 201(e)question. Such jurisdictions give the party against whom anoticed fact operates a right to be heard that includes the rightto present rebuttal evidence for jury consideration.128 This latter position would, at least in theory, apply to Criminal Rule201(g) because the jury in a criminal case is never required toaccept as conclusive those facts that are judicially noticed bythe judge.129 As a practical matter, however, it seems unwisefor a court to take judicial notice of any fact that is subject tocontrary proof.

123. FEn. R. EVID. 201 advisory committee's note, subdiv. (e).124. 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 givethe 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 couldpresent rebuttal evidence to the jury even though reasonable minds would not differon the matter); see also Arthur J. Keefe et al., Sense and Nonsense About JudicialNotice, 2 STAN. L. REv. 664, 668 (1950). The authors comment that if the opponentof 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 thecourt 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 shouldcomplain. Refer to note 138 infra.

129. TEx. R. CRIM. EVID. 201(g).

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Rule 201(e) also interacts with Rule 201(c), which permitsthe court to take judicial notice on its own initiative. ISO Insuch cases, the parties might not receive any indication that acourt has taken judicial notice until after the fact. 131 Somecommentators point out that "judicial notice without notificationmay deprive the adversely affected party of the right to trial byjury as well, since he will miss his opportunity to request ahearing at which rebutting information may be introduced."132

The final sentence of subdivision (e) addresses this situation bypermitting a non-notified party to request a hearing even aftera court takes judicial notice. l33 Although no specific form ortime or prior notification by the court or specific procedures forthe hearing are provided, the Advisory Committee's note callsattention to the provision for a hearing on a timely request inthe Administrative Procedure Act.l34 If, however, a party failsto object to the trial court's procedure in taking judicial noticeand does not seek an opportunity to be heard, he may waivethe complaint regarding the propriety of such notice. l35

Very few Texas cases address the procedural aspects oftaking judicial notice of adjudicative facts, although severalcases contemplate that the parties will present information anddata for the judge to use in his rulings respecting judicialnotice. 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 afinal ruling that judicial notice will be taken should notify the parties of hisintention to do so and afford them an opportunity to present informationwhich might bear upon the propriety of noticing the fact, or upon the truthof 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 orelse 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 othergrounds, 767 S.W.2d 691 (Tex. 1989); see also MacMillan Bloedel Ltd. v. FlintkoteCo., 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 hisintention to notice a given fact and to give them an opportunityto present, informally, data indicating that the matter is not aproper subject for judicial notice.137 Presumably, Texas courtsgive this suggestion considerable weight. At least one Texascourt has indicated that it considers advance notice to be amatter subject to waiver by a party but suggests that in somesituations such notice might constitute a right.138 In summary, subdivision (e) is not inconsistent with prior Texas practicebut 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 appellatecourts may take judicial notice to the same extent as trialCOurtS.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 aroad was inside or outside a business or residence district without any source tosupport 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 thatmayor may not have been judicially noticed in the trial court if the opponent wasnot "afforded an opportunity to be heard as to the propriety of taking judicial noticeor the tenor of the matter noticed." National County Mut. Fire Ins. Co. v. Hood, 693S.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 wasaware that in all probability a question subject to judicial notice might be presentedand 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 advancenotice 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 maybe noticed on appeal although it was not part of the official record); see also 1LoUISELL & 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 (5thCir. 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 judicialnotice 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 atimely request to trial court, or 2) to correct "plain error" by the trial court. 1LoUISELL & 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 asummary judgment proceeding,142 or by the appellateCOurt.14S Texas courts emphasize that an appellate court maytake judicial notice of a proper fact even though the trial courtwas not requested to take judicial notice of the fact and did notformally announce that it had done SO.l44

The question arises of whether an appellate court ought totake judicial notice of a fact that was not so noticed at the trialcourt level in a criminal case. Both Texas145 and federall46

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 thecosts of materials since World War II), rev'd on other grounds, 154 Tex. 573, 280S.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 noticeof 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 ofregulations of the Railroad Commission); Vahlsing, Inc. v. Missouri Pac. Ry., 563S.W.2d 669, 674 (Tex. Civ. App.-Corpus Christi 1978, no writ) (affirming the trialcourt's implied finding that Vahlsing was a "necessary party" within the statutorydefinition); Texas Sec. Corp. v. Peters, 463 S.W.2d 263, 265 (Tex. Civ. App.-FortWorth 1971, no writ) (presuming that the trial court properly took judicial noticeeven 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, nowrit) (presuming that the trial court, in support of its judgment, took judicial noticeof 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.) (takingjudicial 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 factthat the city of Garland held a municipal election), rev'd on other grounds, 691S.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 becausethere was a predicate laid in the trial court to establish that San Antonio had aHome 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 notformally 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.2dat 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 factagainst a criminal defendant. That concern is the reason whysubdivision (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 facton appeal in a criminal case because doing so would deny thedefendant his constitutional right to a jury determination ofevery 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 thatwere neither noticed nor proved at the trial level. Neither trial court consideredremand 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.2d274, 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 DEAmaterials supporting the conclusion that a car inventory was conducted pursuant to"standard procedure"). In Judge, the appellate court refused to take judicial notice ofportions of a DEA manual submitted by the government because: 1) the materialsmight arguably be subject to reasonable dispute in the present fact scenario; 2) thegovernment submitted selective portions of the manual; and 3) the defendant did nothave an adequate opportunity to challenge the applicability and administration ofprovisions. 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 raisedon appeal from a trial judge's ruling. Obviously, the remand procedure would not beapplicable to jury factfinding. See generally Hobart Taylor, Jr., Comment, Evi·de~udicialNotice By Appellate Courts of Facts and Foreign Law Not Brought tothe Attention of the Trial Court, 42 MIca 1.. REv. 609, 612-13 (1943) (concludingthat appellate courts are much more likely to take judicial notice of facts to upholda trial court verdict than to reverse that verdict).

147. H.R. REp. No. 650, 93d Cong., 1st Sess. 6 (1974), reprinted in 1974U.S.C.C.A.N. 7075, 7080.

148. In United States v. Jones, the Sixth Circuit Court of Appeals refused to takejudicial notice that South Central Bell Telephone Company was a carrier engaged inthe transmission of interstate communications. 580 F.2d 219, 223-24 (6th Cir. 1978).The defendant had been convicted of illegally intercepting telephone conversations bytapping a telephone furnished by the South Central Bell Telephone Company. Id. at219. However, no witness explicitly testified that South Central Bell was a "personengaged in providing or operating . . . facilities for the transmission of interstate orforeign 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 receiveda directed verdict from the judge because the government failed to offer proof onthis statutory element. Jones, 580 F.2d. at 223-24. The court of appeals affIrmed theacquittal, reasoning that the congressional intent manifested in Federal Rule 201(g),which gives the jury in a criminal case authority to disregard a judicially noticedfact, requires that facts not noticed and made the subject of an instruction at triallevel 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 BellTelephone 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 everofferedl49 or whether it is requested to take notice of the common and ordinary inferences' that may be deduced from factsproved. For example, if a witness in a driving while intoxicatedtrial testifies that a suspect was stopped while driving "onWestheimer" in Houston, an appellate court could take judicialnotice that Westheimer Road is a "public place" for purposes ofthe D.W.I. statute.ISO Conversely, if the witness merely testifies that a suspect was stopped while driving in Houston, anappellate court could not take judicial notice that all locationsin Houston where one could drive are public places. As Professor Wellborn notes, appellate judicial notice of the factualmeaning or interpretation of evidence to sustain a jury's verdictis actually supportive of the general notion of jury integrity ina criminal trial. lSI

Rule 201 (g): Instructing the Jury [civil rule]

As noted above, Civil Rule 201(g) tracks the language ofthe correlative federal provision, except that it eliminates thelanguage applicable to criminal cases. Civil Rule 201(g) completes the picture commenced by subdivision (b), which requiresthat judicially noticed facts not be subject to reasonable dispute,152 and given substance by subdivision (e), which extendsto 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 FEDERALEVIDENCE § 201.7, at 83-84 & n.13 (3d ed. 1991); 1 WEINSTEIN & BERGER, supranote 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 precludetaking judicial notice of "an element of the crime" by an appellate court in criminalproceedings).

150. This example is more akin to the "legal reasoning" process which is alwayssusceptible to judicial notice but is not covered by rules of evidence. Refer to notes38-45 supra and accompanying text.151. See Wellborn, supra note 68, at 25-26. Saltzburg and Redden have comment

ed that if a criminal defendant does not raise an issue at trial, then the appellatecourt 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 commentthat "[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 ofappellate notice." Id.152. TEx. R. CIV. EVID. 201(g).

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notice.l53 After the parties have had an opportunity to contestthe 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 decidewhether the court should allow the jury to consider evidence indisproof of the noticed fact. The Federal Rules answered thisquestion in the negative by providing that the factfinders are tobe instructed that they must accept such a fact as true.l54

The correlative Texas rule adopts the federal position on thisissue. Thus, once the court takes judicial notice of some fact, noevidence will be admitted to rebut it. This rule is simply thecorollary to the requirement in subdivision (b) that noticed factsmust be substantially indisputable.l55

In one post-Rules decision, First National Bank of Amarillov. Jarnigan,l56 the Amarillo Court of Appeals stated that atrial court may not instruct a jury that it has taken judicial notice of a series of particularized "findings of fact" if doing sowould constitute "unnecessary and impermissible comments onthe weight of the evidence.,,157 In this case, the concept of judicial notice seems to have been misapplied because thethirteen findings of fact submitted to the jury as conclusivewere 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 thetruth of that fact depends upon whether it is proper in the jurisdiction involved totake judicial notice only of substantially indisputable facts or also of facts that aremerely 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, supranote 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 disputeis unlikely, the noticed fact should be subject to rebuttal evidence that the opponentoffers. See THAYER, supra note I, at 308·09 (arguing that judicial notice should beno 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' andmaterialmen's lien note and the renewal note and deed of trust constitute a singletransaction [and) . . . the First National Bank of Amarillo is not a holder in duecourse of the renewal note and deed of trust dated April 6, 1983." Id. at 59·60.

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[Vol. 30:193

those thirteen facts," this assumption was improper because theappellate court was then forced to hold that the jury should nothave been instructed that the trial court had taken judicialnotice of these findings.159 Under Civil Rule 201(g), a judgeshall instruct the jury when he has properly taken judicial notice of an adjudicative fact. l60 The proper issue was whether ajudge may submit factual and legal conclusions upon whichreasonable minds might differ to a jury -under the rubric ofjudicial 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 FederalRule 201 suggested three reasons for adopting the conclusivefact standard: "the undesirable effects of the opposite rule [1] inlimiting 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 inways largely unforeseeable...161 The first reason refers to thepractice of permitting the party against whom the judiciallynoticed fact operates to rebut such fact only with admissibleevidence, while permitting the party who sought judicial noticeto present any material the trial judge found acceptable.162

Rule 201(e) resolves this objection by permitting both parties toargue the propriety of taking judicial notice.

The second reason, that the other standard defeated thepurpose of judicial notice, is not explained but probably refersto the fact that permitting parties to rebut judicially noticedfacts with formally introduced evidence offsets the time-savingpurpose of the rule.l63

The third reason for rejecting the alternate standard, thatsubstantive law might be affected, is similarly unexplained.This justification possibly refers to the argument that while alldebatable adjudicative facts would be determined by thefactfinder, disputable but uncontroverted facts, once noticed, areconclusive in civil cases.l64 Beyond these reasons, the Adviso-

159. Id. at 61.160. TEx. R. CIV. EVID. 201(g).161. 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 cautionrequiring that matters of which the court takes judicial noticebe beyond reasonable controversy.l65

Rule 201 (g): Instructing the Jury [criminal rule]

The second sentence of Federal Rule 201(g), which wasdeleted from the Texas civil rule, states a different rule forcriminal cases.loo That sentence was adopted as CriminalRule 201(g). In the 1972 federal version of this rule, the judgewas required to instruct the jury to accept as conclusive anyjudicially noticed fact regardless of whether the proceedingswere civil or criminal.l67 The Advisory Committee proceededon the theory that the right to a jury trial did not extend tomatters which were beyond reasonable dispute; therefore, theinstruction that a noticed fact was conclusively established didnot violate that right. l68 Before the rule became law, theHouse Committee on the Judiciary amended it to distinguishbetween civil and criminal proceedings, stating that the Committee was of the view that a mandatory jury instruction toaccept judicially noticed facts in criminal cases was contrary tothe spirit of the right to a jury trial under the Sixth Amendment. lOO The House Committee did not cite support for itsview, and no conclusive authority existed. l7O Nevertheless, therule 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 RuleBroadens Scope of Judicial Notice, 53 NEB. L. REv. 333, 337-38 (1974) (concludingthat judicial notice is proper in a criminal case only if the defendant has been givenan opportunity to rebut the presumed fact and if the jurors are instructed that thenoticed fact is not binding upon them).

169. H.R. REp. No. 650, 93d Cong., 1st Sess. 6 (1973), reprinted in 1973U.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 theprovince of the jury in a criminal case). Contra United States v. Alvarado, 519 F.2d1133, 1135 (5th Cir. 1975) (holding that judicial notice of facts that are plainly truedoes not abridge Sixth Amendment rights), cert. denied, 424 U.S. 911 (1976); but seeGold 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 thatthe 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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[V01. 30:193

The Texas rule adopted this permissive provision.172 Although the criminal rule has been criticized,173 ProfessorBlack considers any complaint "as probably more theoreticalthan real for it is unlikely that a conscientious jury would findcontrary to facts not subject to reasonable dispute," as would berequired by subdivision (b).174 Nonetheless, American juries incriminal cases are always entitled to return a "not guilty" verdict that flies in the face of both logic and evidence under therubric 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 instructionapplies only to judicial notice of adjudicative facts and does notapply to an instruction regarding legislative facts. 177 Thus,

322-23 (6th Cir. 1988) (reversing the defendant's conviction for bank robbery becausethe trial judge gave the jury a mandatory instruction that banks are insured by theFDIC). The Mentz court recognized that a "trial court commits constitutional errorwhen it takes judicial notice of facts which constitute an essential element of thecrime 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 provedthe fact or event which has been judicially noticed, but you are not requiredto 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 Evi

dence-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 inthe 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 asgiven 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, asthe conscience of the community, must be permitted to look at more than logic"). Seegenerally 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 andfact).

176. See United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C. Cir. 1972); seealso 1 LomSELL & MUELLER, supra note 44, § 60, at 502 n.8 (citing cases that holdthat an instruction on the right of jury nullification is improper). Dougherty providesa historical discussion of the doctrine of jury nullification and concludes that "lilt isone thing for a juror to know that the law condemns, but he has a factual power oflenity. 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, theinstructions should be couched in mandatory terms. For example, under Texas statutory law, a firearm is a deadly weaponper se. l78 If a trial judge took judicial notice that a particulargun 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" adeadly weapon. The jury would not be instructed that theycould, but were not required to, accept as conclusive that afirearm is a deadly weapon.

Although a criminal defendant is entitled to a permissiveinstruction on judicial notice, the right may be waived by thefailure to assert it.l79 Subdivision (g), however, does not applyto 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 cocainehydrochloride, you are instructed that cocaine hydrochloride is a Schedule II controlled substance under the laws of the United States." Id. at 218. The court heldthat this was a "legislative" fact not capable of a jury determination and that torule otherwise "would be preposterous, thus permitting juries to make conflictingfmdings 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 governingliability on checks was error based in part on acknowledgements of the defensecounsel 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 factthat Leavenworth penitentiary is United States territory because the defendant didnot 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 doubtlessbe 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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[V01. 30:193

RULE 202

DETERMINATION OF LAW OF OTHER STATES

[civil and criminal rule]

A court upon its own motion may, or upon the motionof a party [civil rule: shall: criminal rule: may] take judicialnotice of the constitutions, public statutes, rules, regulations, ordinances, court decisions, and common law of everyother state, territory, or jurisdiction of the United States. Aparty requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enableit properly to comply with the request, and shall give allparties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet therequest. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicialnotice and the tenor of the matter noticed. In the absenceof prior notification, the request may be made after judicialnotice has been taken. Judicial notice of such matters maybe taken at any stage of the proceeding. The court's determination shall be subject to review as a ruling on a question of law.


The Federal Rules contain no rules covering judicial noticeof law. The Federal Rules Advisory Committee felt that mattersof law which traditionally require pleading and proof are moreappropriately 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 thepublic 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 TexasRules of Civil Procedure in 1943185 that Texas courts werepermitted to take judicial notice of the laws of sister states.l86

The original version of Civil Rule 202 adopted former Rule ofCivil Procedure 184a with the addition of the words "rules,regulations, and ordinances" in the first sentence.187 Thisadoption 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 matterswere 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 statutorylaws 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 couldnot take judicial notice of the statutes of Missouri).

185. Refer to note 13 supra for a discussion of Texas Rule of Civil Procedure184a.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 thecommon law, public statutes, rules, regulations, and ordinances and courtdecisions 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 withthe request, and shall give each adverse party such notice, if any, as thejudge may deem necessary, to enable the adverse party fairly to prepare tomeet the request. The rulings of the judge on such matters shall be subjectto 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 TexasRules of Civil Evidence, 50 TEx. B.J. 1051, 1052 (1987); Rules of Evidence: NewAmendments, 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 beheard, authorized judicial notice at any stage of the proceeding, and added a specificstandard of review. The 1988 amendments authorized the court to take judicial noticeon 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 anddevelopment of Rule 184a).

189. MCCORMICK ON EVIDENCE notes that the common law rule, which was notabrogated 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 beenthat municipal ordinances were not subject to judicial notice. See, e.g., Chambers v.

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[Vol. 30:193

the content of rules, regulations, and ordinances of other states.Constitutions of sister states were always suitable subjects forjudicial notice as part of their statutory laws,190 so TexasRule 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 theUnited States,191 but not of the laws of another state.192 Instead, the laws of other states were presumed to be the sameas those of Texas in the absence of competent proof to thecontrary.193 In both civil and criminal proceedings, if a partydid not prove up the specific law of another state or, in civilcases, 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» (statingthat judicial notice will not be taken of a city ordinance). Professor Ray commentedthat "[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 apparentlyreflects recent changes in the extent of judicial notice of certain domestic rules andregulations. In Southwestern Bell Telephone Co. 11. Nash, the court held that judicialnotice may be taken of the acts of administrative bodies officially published in theTexas 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 permitjudicial 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 renumberedas 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 Texascivil common law. See Mosqueda v. Albright Transfer & Storage Co., 320 S.W.2d867, 876 (Tex. Civ. App.-Fort Worth 1959, writ refd n.r.e.). Mosqueda quotesMcCormick and Ray and suggests that Texas courts

must take judicial notice of the laws of the United States, including all thepublic acts and resolutions of Congress and proclamations of the presidentthereunder . . . . Administrative rules adopted by boards, departments, andcommissions pursuant to federal statutes are also matters of judicial knowledge. When such regulations are published in the Federal Register a federalstatute provides that their contents shall be judicially noticed.

Id. The Texas Supreme Court, however, has held that a mandatory requirement thatTexas courts notice federal administrative rules and regulations is overly broad. SeeTippett 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'slaws or federal regulations in civil cases if sufficient information is supplied, "the determination of compliance with theserequirements is within the discretion of the trial court...195 Incriminal proceedings, judicial notice of out-of-state statutes,rules, and regulations is always discretionary.l96 One wondershow a plausible argument can be made for the rejection by acourt, properly supplied with the necessary information, of thecontent of a sister state's law. No judge, whether deciding acriminal or civil case, should be free to reject the black letterlaw of another jurisdiction that is properly submitted.

Because Texas Rule 202 explicitly states that a court maytake judicial notice of the laws of sister states at any stage ofthe proceeding, appellate courts are not limited to the recordmade 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 inCalifornia as in Texas absent a showing to the contrary); Gevinson v. ManhattanConstr. Co., 449 S.W.2d 458, 465 n.2 (Tex. 1969) (stating that because the partiesdid 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 refdn.r.e.) (finding that when appellants comply with requirements of Rule 184a, thecourt 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 presumeMississippi law to be the same as Texas law absent a pleading or request to takejudicial notice of the former).

195. Daugherty v. Southern Pac. Transp. Co., 772 S.W.2d 81, 83 (Tex. 1989); seealso 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 lawsrelied upon and to provide sufficient information to enable the court to properlycomply with the request"); Ewing v. Ewing, 739 S.W.2d 470, 472 (Tex. App.-CorpusChristi 1987, no writ) (finding that the trial court did not err in refusing to takejudicial notice of the laws of California because the requesting party failed to "setforth 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 ofanother 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 regardinglaws of another state because appellant presented no evidence regarding those lawsto 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 ofMaryland law regarding the use of commitment papers in establishing proof of

231


Rule 203 . HOUSTON LAW REVIEWTexas Rules ofEvidence Handbook

RULE 203

DETERMINATION OF THE LAWSOF FOREIGN COUNTRIES

[civil and criminal rule]

[Vol. 30:193

A party who intends to raise an issue concerning thelaw of a foreign country shall give notice in his pleadingsor other reasonable written notice, and at least 30 days prior to the date of trial such party shall furnish all partiescopies of any written materials or sources that he intendsto 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 allparties both a copy of the foreign language text and anEnglish translation. The court, in determining the law of aforeign nation, may consider any material or source, whether or not submitted by a party or admissible under therules 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 allparties notice and a reasonable opportunity to comment onthe sources and to submit further materials for review bythe court. The court, and not a jury, shall determine thelaws of foreign countries. The court's determination shall besubject 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 isno longer confined solely to the trial record for "evidence" of laws of sister statesbut may now take judicial notice of laws of other states "from readily available andeasily accessible sources").

232


1993] JUDICIAL NOTICE


Rule 203

.AB previously noted, the Federal Rules contain no rulescovering the judicial notice of law.l98 The method of invokingthe law of a foreign country in federal courts is covered in Rule44.1 of the Federal Rules of Civil Procedure and in Rule 26.1 ofthe Federal Rules of Criminal Procedure. These rules werecharacterized by the Federal Advisory Committee as "admirablydesigned rules."199 Both Texas Civil and Criminal Rule 203are an adoption of the substantive provisions of these federalrules with rather extensive procedural additions dealing withnotice and the opportunity to be heard.200

The federal counterparts to Texas Rule 203 were added in1966 to furnish a uniform and effective procedure for raisingand determining the law of a foreign country.201 The first sentence of the federal rule, concerning notice, is designed to avoidunfair 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, FederalRule 44.1 and the ·Fact'" Approach to Determining Foreign Law: Death Knell for aDie-Hard Doctrine, 65 MICH. L. REv. 613 (1967).

200. The following illustrates the extent of the additions made to Rule 44.1 ofthe 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, andat 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 asproof of the foreign law. If the materials or sources were originally writtenin a language other than English. the party intending to rely upon themshall furnish all parties both a copy of the foreign language text and anEnglish translation. The court, in determining [foreign law] the law of aforeign nation. may consider any [relevant] material or source, [includingtestimony,] whether or not submitted' by a party or admissible under the[Federal Rules of Evidence] rules of evidence. including but not limited toaffidavits. testimony, briefs. and treatises. If the court considers sourcesother than those submitted by a party. it shall give all parties notice and areasonable opportunitv to comment on the sources and to submit furthermaterials for review by the court. The court. and not a jury. shall determinethe 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 rulingon 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 ofevidence are often time consuming, inefficient, expensive, andgenerally inapposite to the problem of determining foreignlaw.203 The second sentence also permits the court to engagein its own research and to consider any relevant material freeof the confines of evidentiary rules because the court may haveat its disposal better foreign law materials than are presentedby counsel.204 The final sentence makes the determination ofan issue of foreign law equivalent to a ruling on a question oflaw, not fact, so that appellate review will not be narrowly confined.205

Prior to adoption of Texas Rule 203, Texas had a statutethat affected the determination of foreign law in civil cases.206

Article 3718 of the Texas Revised Civil Statutes Annotatedprovided for the receipt in evidence of printed statute books offoreign jurisdictions.207 However, article 3718 was restrictivelyinterpreted 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 andproof.209 In criminal proceedings, foreign law was traditionallyrequired 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 Districtof Columbia, or of any State or territory of the United States or of anyforeign government, purporting to have been printed under the authoritythereof, 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 unoffi

cial 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 andcould 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, wasadmissible to prove the laws of such state).

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law" and that it was "little short of tragic that the process ofjudicial notice so admirably suited to this type of situation isnot available."211 Thus, Civil Rule 203 made significant anddesirable changes in Texas law in the area of judicial notice ofthe 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 ofintent to prove foreign law and adequate opportunity for anadverse party to controvert the materials or sources submittedto the court. They are somewhat more detailed than the noticeprovisions in Rule 202, reflecting the additional problems oftenpresented in proving the law of foreign countries.213 Thus far,few judicial decisions have interpreted the scope or procedurerelating to the determination of foreign laws under Texas Rule203,214 so it is not yet known how effective this provision willprove 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 ElJi

dence 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 ofboth the courts and the parties in determining foreign law). Although Texas Rule203 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 traditionalview of judicial notice, the placement of this rule in Article II of the Texas Rules ofEvidence, entitled "Judicial Notice," should justify denominating the process "judicialnotice" 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 proofrequirements of article 3718 with respect to foreign law).

213. Texas Rules 201(c), 202, and 204 all authorize the judge to act upon hisown motion as well as that of either party. Texas Rule 203 is less clear as towhether a judge could conduct a determination into the law of foreign countriesabsent a party's request. Certainly nothing in the language of the rule prohibits thejudge from acting sua sponte. Additionally, the Federal Advisory Committee's notesregarding 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 topreclude 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 withthe applicable statutes in calling the foreign law to the attention of the court· whenshe presented English and Spanish copies of the Civil Code of Mexico).

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[Vol. 30:193

RULE 204

DETERMINATION OF TEXAS CITY AND COUNTYORDINANCES, THE CONTENTS OF THE TEXAS

REGISTER, THE RULES OF AGENCIESPUBLISHED IN THE ADMINISTRATIVE CODE

[civil rule]

A court upon its own motion may, or upon the motionof a party shall, take judicial notice of the ordinances ofmunicipalities and counties of Texas, of the contents of theTexas Register, and of the codified rules of the agenciespublished in the Administrative Code. Any party requestingthat judicial notice be taken of such matter shall furnishthe court sufficient information to enable it properly tocomply with the request, and shall give all parties suchnotice, if any, as the court may deem necessary, to enableall parties fairly to prepare to meet the request. A party isentitled upon timely request to an opportunity to be heardas to the propriety of taking judicial notice and the tenor ofthe matter noticed. In the absence of prior notification, therequest may be made after judicial notice has been taken.The court's determination shall be subject to review as aruling on a question of law.

Comment: Judicial notice upon motion of a party is mademandatory rather than discretionary.

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RULE 204

DETERMINATION OF TEXAS CITY AND COUNTYORDINANCES, THE CONTENTS OF THE TEXAS

REGISTER, THE RULES OF AGENCIESPUBLISHED IN TlIE ADMINISTRATIVE CODE

[criminal rule]

Judicial notice may be taken of the ordinances of municipalities and counties of Texas, of the contents of theTexas Register, and of the codified rules of the agenciespublished in the Administrative Code. Any party requestingthat judicial notice be taken of such matter shall furnishthe court sufficient information to enable it properly tocomply with the request, and shall give all parties suchnotice, if any, as the court may deem necessary, to enableall parties fairly to prepare to meet the request. A party isentitled upon timely request to an opportunity to be heardas to the propriety of taking judicial notice and the tenor ofthe matter noticed. In the absence of prior notification, therequest may be made after judicial notice has been taken.The court's determination shall be subject to review as aruling on a question of law.


Rule 204 was added to the Texas Rules of Civil Evidencein 1984.215 It was included in the original promulgation of theTexas 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, theyhad 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 (VernonSpecial Pamphlet 1991).217. See Howeth v. State, 645 S.W.2d 787, 788 (Tex. Crim. App. 1983).

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[VoL 30:193Rule 204 HOUSTON LAW REVIEWTexas Rules of Evidence Handbook

the custodian of the record.218 In 1981, the AdministrativeProcedure and'Texas Register Act was amended to provide forjudicial 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 TexasRule 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 weretraditionally subject to judicial notice under Texas commonlaw.222 The Federal Register Act states that "the contents ofthe Federal Register shall be judicially noticed,"223 andcommentators suggest that the federal act should bind statecourts under the Supremacy Clause.224 However, Texas Rule202 has been broadly written; therefore, if a question everarose 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 allUnited States jurisdictions are now subject to judicial notice inTexas COurtS.225 These matters need not be pleaded beforethey 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 propositionthat the court cannot recognize an ordinance without proof); Lopez v. State, 649S.W.2d 165, 166 (Tex. App.-EI Paso 1983, no pet.) (stating that county, district, andappellate courts may not take judicial notice of municipal ordinances, but that anordinance that is jurisdictional to a county court serving as the appellate court ofreview can be noticed by that particular court); Chambers v. Lee, 566 S.W.2d 69, 72n.1 (Tex. Civ. App.-Texarkana 1978, no writ) (requiring a city ordinance to beproved 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 note68, 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 pub

lished 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 inboth Rules 201(f) and 202 that provides that courts may takejudicial notice at any stage of the proceeding. Although thelanguage of the Texas Rule 204 is seemingly broad enough topermit 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 takejudicial notice of ordinances that were not noticed in the trialCOurt.227 Criminal Rule 204 differs from Civil Rule 204 to theextent that under the latter rule a judge may take judicialnotice without being asked to do so by either party. Conversely,under Criminal Rule 204, counsel must request the court totake judicial notice of an ordinance.228 The judge should notdo so on his own initiative.229

Because municipal and county ordinances are difficult toresearch and verify, the careful practitioner should provide thetrial court with a certified copy of the applicable ordinance andensure that this copy is included in the court's record. In theabsence of a complete record, the appellate court may be unableto determine precisely which law was at issue and may refuseto accept a bare record recital that the trial court took judicialnotice 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 ofwhether an appellate court may take judicial notice for the flrSt time on appeal, butrefusing 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 testimonythat there were speed limit signs posted and no request was made that judicialnotice 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, whichwould permit a judge to take judicial notice on his own motion, and Rule 204, whichrequires the proponent to request a judge to take judicial notice and ~omply withpredicate 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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ARTICLE II: JUDICIAL NOTICE

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Transcript of ARTICLE II: JUDICIAL NOTICE