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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.

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.