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JUDICIAL NOTICE : RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the
necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to
the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior
notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. In civil cases, the court shall instruct the jury to accept as conclusive any fact
judicially noticed. In criminal cases, the court shall instruct the jury that it may, but is not required to,
accept as conclusive any fact judicially noticed.
JUDICIAL NOTICE OF COURT RECORDS
See In re C.S., 208 S.W.3d 77, 81 (Tex. App.-Fort Worth 2006, pet. denied) (“It is appropriate for a court
to take judicial notice of a file in order to show that the documents in the file are a part of the court's files,
that they were filed with the court on a certain date, and that they were before the court at the time of the
hearing.).
CASES
08-0343
STANLEY V. GRAFF v. VERNON BERRY, M.D. WHITTLE, INDIVIDUALLY AND IN HIS CAPACITY AS
COUNTY COMMISSIONER, RUFUS WARD, JR., ELMER CATON, JOSEF HAUSLER, IN THEIR
CAPACITIES AS COUNTY COMMISSIONERS, AND THE COUNTY OF RED RIVER; from Red River
County; 6th district (06-07-00058-CV, ___ SW3d ___, 03-18-08, pet denied Jun 2008) (judicial notice,
condemnation, road construction, sufficiency of description, attorney's fees)( the trial court erred in
taking judicial notice of the court records which had not been attached to the summary judgment motion
and had been destroyed)
The Trial Court Erred In Taking Judicial Notice of Court Records Which Were Not Attached to the
Summary Judgment Motion and Had Been Destroyed
The trial court took judicial notice of the "entire file that's on file in this court in cause number 134-CV-5[-]
93." Graff claims the trial court erred because the documents being judicially noticed were not attached
to the summary judgment motion, and the file being judicially noticed no longer exists.
Under the Texas Rules of Evidence, judicial notice may be taken at any stage of the proceeding. Tex.
R. Evid. 201(f). A "judicially noticed fact must be one not subject to reasonable dispute in that it is . . .
capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned." See Tex. R. Evid. 201(b). Under the common law, a trial court could take judicial notice of
records of its own court in a case concerning the same subject matter and between the same or
practically the same parties. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Musgrave v.
Brookhaven Lake Prop. Owners Ass'n, 990 S.W.2d 386, 401 (Tex. App.--Texarkana 1999, pet. denied).
A fact of which judicial notice can be taken is "a matter of evidence and knowledge on the part of courts
which requires no formal proof." Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521, 523 (1961) (quoting
Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, 830 (1950)).
The Texas Supreme Court has held that compliance with Rule 166a requires that certified copies of the
documents referred to, including court records, be attached to the summary judgment motion. Gardner,
345 S.W.2d at 276-77. The relevant portion of the current Texas Rules of Civil Procedure is essentially
identical to the applicable rule interpreted in Gardner. Compare Tex. R. Civ. P. 166a with Tex. R. Civ. P.
166-A, 241-242 S.W.2d (Tex. Cases) pp. xxxvi-xxxvii (1952, superseded 1967). The Fort Worth Court of
Appeals has recently relied on Gardner in concluding certified copies of court records must be
attached to the summary judgment motion in order for the court records to be admissible as evidence in
support of a motion for summary judgment. Souder v. Cannon, 235 S.W.3d 841, 848 (Tex. App.--Fort
Worth 2007, no pet.).
The commissioners cite Sierad v. Barnett, 164 S.W.3d 471, 481 (Tex. App.--Dallas 2005, no pet.), in
support of their proposition that the documents do not have to be attached. The Dallas Court of Appeals
concluded the documents being noticed were not required to be attached.
Although the court references Gardner, the court does not attempt to distinguish Gardner. Gardner and
its progeny hold that attachment is only necessary if the notice is being taken during summary judgment
proceedings. (7)
Absent summary judgment proceedings, there is no requirement that the documents be attached. Sierad
is distinguishable from the current case because it was not a summary judgment. The judgment being
appealed from in Sierad was from a bench trial rather than a summary judgment proceeding. Id. Because
the appeal was from a bench trial, the Dallas Court of Appeals applied the general rule, which does not
require the documents being noticed to be attached.
The commissioners also rely on Jett v. Sides, 367 S.W.2d 921, 924 (Tex. Civ. App.--Waco 1963, no writ).
Jett involved a collateral attack on an annulment of a marriage. Id. Although the trial court granted a
summary judgment, the appellate court treated the motion as a bill of review governed by former Rule
329-b rather than former Rule 166-A. Id. The Waco Court of Appeals noted Gardner and specifically
distinguished the attachment requirement announced in Gardner as being restricted to summary
judgment motions. Id. We do not find Jett to be persuasive authority. The court documents were required
to be attached to the summary judgment motion.
Second, judicial notice cannot be taken of documents which are no longer in existence. Graff supplied an
affidavit from the Red River County District Clerk, who affirmed that all records, transcripts, and exhibits
in cause number 134-CV-5-93 had been destroyed and that he was not aware of anywhere copies could
be obtained. Graff also filed an affidavit from the clerk of this Court which affirms that this Court no
longer has any records from the appeal in that cause number. Judicial notice must be made of facts
beyond reasonable dispute which are capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. See Tex. R. Evid. 201(b). If a source no longer exists,
the facts being noticed cannot be determined by resort to that source. (8) The trial court erred in taking
judicial notice of the files in cause number 134-CV-5-93.
RULE 204. DETERMINATION OF TEXAS CITY AND COUNTY ORDINANCES, THE CONTENTS OF THE
TEXAS REGISTER, AND THE RULES OF AGENCIES PUBLISHED IN THE ADMINISTRATIVE CODE
A court upon its own motion may, or upon the motion of a party shall, take judicial notice of the
ordinances of municipalities and counties of Texas, of the contents of the Texas Register, and of the
codified rules of the agencies published in the Administrative Code. Any party requesting that judicial
notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply
with the request, and shall give all parties such notice, if any, as the court may deem necessary, to
enable all parties fairly to prepare to meet the request. A party is entitled upon timely request to an
opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In
the absence of prior notification, the request may be made after judicial notice has been taken. The
court's determination shall be subject to review as a ruling on a question of law.
Also see:
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