law-judicial-notice | what can the court take judicial notice of?
JUDICIAL NOTICE IN THE TRIAL COURT
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."
TEX. R. EVID. 201(b). But "[p]ersonal knowledge is not judicial knowledge. The judge may
personally know a fact of which he cannot take judicial notice." Wilson v. State, 677 S.W.2d 518,
524 (Tex. Crim. App. 1984). Moreover, the trial court may not take judicial notice of the truth of
factual statements and allegations contained in the pleadings, affidavits, or other documents in
the file. See, e.g., In re C.L., 304 S.W.3d 512, 514-15 (Tex. App.-Waco 2009, no pet.);
Malekzadeh v. Malekzadeh, Nos. 14-05-00113-CV & 14-06-00341-CV, 2007 WL 1892233, at *9
(Tex. App.-Houston [14th Dist.] 2007, pet. denied) (mem. op.); Tschirhart v. Tschirhart, 876 S.W.
2d 507, 508 (Tex. App.-Austin 1994, no writ); cf. 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.").
It is inappropriate for a trial judge to take judicial notice of testimony even in a retrial of the same
case. Muller v. Leyendecker, 697 S.W.2d 668, 675 (Tex. Civ. App.-San Antonio 1985, writ ref'd
n.r.e.); see also Garza v. State, 996 S.W.2d 276, 280 (Tex. App.-Dallas 1999, pet. ref'd) ("[T]rial
testimony is a mutable product of human memory and subject to different interpretations. It does
not carry the high degree of indisputability required to justify taking judicial notice."). In order for
testimony from a prior hearing or trial to be considered in a subsequent proceeding, the
transcript of that testimony must be properly authenticated and entered into evidence. See, e.g.,
In re M.C.G., No. 14-09-00644-CV, 2010 WL 5033512, at * 1 (Tex. App.-Houston [14th Dist.]
Dec. 2, 2010, no pet.) (supp. op. on reh'g) (clarifying that this court did not consider testimony
from a prior hearing where the testimony was not offered and admitted into evidence at the
subsequent trial).
When evidence is the subject of improper judicial notice, it amounts to no evidence. See, e.g.,
Augillard v. Madura, 257 S.W.3d 494, 503 n.14 (Tex. App.-Austin 2008, no pet.) (finding
evidence legally insufficient to support judgment where trial court took judicial notice of
testimony from a hearing held thirteen months earlier in the same case, but the evidence was
not offered in the second hearing); Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d
531, 540 (Tex. App.-San Antonio 2004, pet. denied) (finding evidence legally insufficient to
support damage award based on trial court's judicial notice of evidence offered at a hearing
nine months earlier in the same case).
A trial court may take judicial notice of its own records in matters that are generally known, easily proven, and
not reasonably disputed. Trimble v. Tex. Dep’t. of Protective & Regulatory Servs., 981 S.W.2d 211, 215 (Tex. App.
—Houston [14th Dist.] 1998, no pet.); see also TEX. R. EVID. 201. “A court may take judicial notice, whether
requested or not.” TEX. R. EVID. 201(c). But when the court takes judicial notice, it must notify the parties and
give them an opportunity to challenge that decision. See TEX. R. EVID. 201(e).
JUDICIAL NOTICE OF ATTORNEY'S FEES
Under section 38.004 of the Texas Civil Practice and Remedies Code, entitled "Judicial Notice,"
in a bench trial, the trial court, without receiving evidence, can take judicial notice of the usual
and customary attorney's fees and the contents of the case file. See TEX. CIV. PRAC. & REM.
CODE ANN. § 38.004 (West 2010).
JUDICIAL NOTICE IN THE COURT OF APPEALS
Although not stated in Baker’s petition, as part of this original proceeding, this Court can and
does take judicial notice of the fact that Maldonado is a candidate in the Democratic primary
election. Tex. R. Evid. 201(b)(2) (“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.”).
In re Baker (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Massengale) (petition dismissed for
want of jurisdiction, complainant had no standing to bring election contest)
DISMISS PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Massengale
Before Justices Jennings, Keyes and Massengale
01-10-00022-CV In re James A. Baker
Election contest re: 308th District Court of Harris County
Ferro v. Dinicolantonio (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(per curiam dismissal)
(grant of final judgment renders appeal of temporary injunction moot)(judicial notice of signed
final judgment)
DISMISS APPEAL: Per Curiam
Before Justices Taft, Bland and Sharp
01-08-00744-CV Edward Ferro, Edward Orechia v. Arthur Dinicolantonio and Stephen
Dinicolantonio Appeal from County Court at Law No 3 of Galveston County
Trial Court Judge: Hon. Roy M. Quintanilla
eBay
"The usual eBay auction process is, after almost a decade in existence, now a matter of
common knowledge of which the Court takes judicial notice. See Fox v. West Palm Beach, 383 F.
2d 189, 194 (5th Cir.1967) ('The most frequent application of the judicial notice doctrine is
common knowledge.') A seller advertises an item on the eBay interface, using a template. The
seller establishes a minimum initial bid and a deadline for the item's auction to end. Buyers may
then bid for the item through the eBay interface, which for each item posts the current bid and
the time remaining. At the expiration of the auction period, the highest bidder wins the item.
EBay puts the seller and winning buyer in contact by email to arrange payment and shipping."
Action Tapes, Inc. v. Weaver, No. Civ. 3:05-CV-1693-H, 2005 WL 3199706, at *2 (N.D. Tex. Nov.
23, 2005)
Choice Auto Brokers, Inc. v. Dawson (Tex.App.- Houston [1st Dist.] Sep. 25, 2008)(Nuchia)
(Internet sales of vehicles, accelerated, interlocutory appeal challenging the trial court's order
denying of special appearance; case dismissed for lack of personal jurisdiction)
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