Using Judicial Notice to Determine Foreign Law

May 3, 2012

For a native Texan like me, folks don’t have to live outside the 50 states to be considered foreigners.  After all, just because we share a national government doesn’t mean that Texans have anything more in common with New Yorkers than we do with New Zealanders.  The Texas Rules of Evidence recognize this, at least with regard to the laws of other places, and establish judicial notice as the vehicle to determine the substance of applicable law anytime you step across the Texas border.

While they are both considered “foreign,” there are only two essential differences between the process of taking judicial notice of the laws of Georgia the country and Georgia the state.  According to Rule 203 of the Texas Rules of Evidence, applying foreign country law may require (1) translations from foreign text into English text, and (2) reliance on informal evidence, such as affidavits and treatises, to “prove” what the foreign law is.  Otherwise, both require some sort of notice to the other side and an opportunity to be heard, and in both situations, it is a decision for the judge, not the jury, and reviewable as an issue of law. 

Foreign State Law:  To request that judicial notice be taken of the laws of another state, TRE 202 basically requires a party to do two things:  (1) furnish the court sufficient information to make a determination of what the law is, and (2) notify the other side that judicial notice is being requested so that they may invoke their right to be heard on the propriety of taking judicial notice.  Normally, it is sufficient to provide copies of relevant statutes and case law in order to satisfy the first step.  Adequate notice to the other side is a matter to be determined by the court, and the rule contemplates that no notice may sometimes suffice, provided that if no advance notice is given, the opposing party be given an opportunity to be heard on the matter after notice has been taken.

Foreign Country Law:  Requesting judicial notice of foreign law is also a relatively simple procedure.  At least 30 days prior to trial, notice of a party’s desire for the court to take judicial notice of a foreign law must be given, along with copies of all materials and sources it intends to use as proof of the foreign law.  If translated materials and sources are used, the original foreign-language text must also be provided.  Proof of foreign law may be informal, including materials which are in otherwise inadmissible form, such as affidavits and treatises.  A judge may also refer to sources which are not provided by either side, provided, however, that both sides are given notice of the use of outside sources and an opportunity to be heard on the matter.

There is one important reason why attorneys should know how to invoke the court’s authority to take judicial notice of non-Texas law:  If it isn’t done correctly, the appellate courts will presume that the law of the other jurisdiction is the same as Texas law.  UTICA v. Mutual Ins. Co. v. Bennett, 492 S.W.2d 659 (Tex. Civ. App. — Houston [1st Dist.] 1973) (failure to make proper request); Pittsburg Corning Corp. v. Walters, 1 S.W.3d 759 (Tex. App. — Corpus Christi 1999) (failure to provide adequate proof of the other law).    And the easiest way to seek judicial notice of non-Texas law is through a summary judgment proceeding.  By doing so, the issue may be decided efficiently and summarily while ensuring that the notice requirements are satisfied.  (Practice tip:  For foreign law, to allay concerns that a summary judgment hearing is considered a “trial” for purposes of TRE 203, provide 30 days’ notice of the hearing instead of 21, and add 15 more days if using a translation of foreign documents, in order to comply with TRE 1009).

When opposing a summary judgment of this type, take care not to assume that the traditional summary judgment standards will apply, and avoid the temptation to try to raise a fact issue to defeat the motion.  Judicial notice of non-Texas law has been recognized as a “hybrid” rule, in that it requires the presentation of evidence, yet is a legal determination.  When there is disagreement over the content of the law, based on evidence presented from various sources, it will not be treated as a fact issue which will preclude summary judgment.  Instead, the proper inquiry is whether the trial court, in reviewing the conflicting evidence about the foreign law, reached a proper legal conclusion as to its content.  CPS International, Inc. v  Dresser Industries, Inc., 911 S.W.2d 18 (Tex. App. — El Paso, 1995). 

Whether from India or Indiana, our evidentiary and procedural rules create a fairly straight-forward mechanism to determine what the law is anytime we need to apply the law of another jurisdiction, such as when parties to a contract agree that the law of another state will govern a particular dispute.  Of course, this begs the question of why anyone would ever do this.  After all, if the law’s good enough for Texas, shouldn’t it be good enough for the rest of the world?

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Using Judicial Notice for Ordinances, Rules and Regulations

July 2, 2011

When ordinances, administrative rules or regulations are at issue in a case, the Texas Rules of Evidence provide the vehicle by which a court may take judicial notice of their content.  TRE 204 permits courts to take judicial notice of municipal and county ordinances, the contents of the Texas Register and agency rules and regulations in the Administrative Code.  Unlike other types of judicial notice, a court has discretion to judicially notice these matters sua sponte, but upon proper motion, the taking of judicial notice is mandatory, rather than discretionary.             

Like other rules of judicial notice, this rule incorporates two basic requirements: (1) the providing sufficient information to the court so that judicial notice can be taken, and (2) the providing of fair notice and opportunity for all parties to be heard on the matter.  Depending upon which type of law is at issue, different approaches may be used in finding the law, but none present much difficulty, especially now when most lawyers consider the information superhighway a vital part of their daily commute.

Despite the mandatory language of the rule, trial courts have in the past demonstrated considerable unwillingness to take judicial notice when it came to city and county ordinances.  This reluctance was rooted in the fact that, historically speaking, ordinances were often very difficult to research and to verify.  Many ordinances were not codified or even maintained in a bound form, rendering the task of locating particular provisions, tracking amendments and determining the applicable law during a relevant time period challenging, if not impossible.  Consequently, most courts would accept nothing less than a certified copy of the ordinance from the custodian of the record (usually the city secretary) in order to satisfy the “sufficient information” requirement of the rule, and appellate courts would affirm refusals to take judicial notice of ordinances when unauthenticated or unverified copies were presented.  Hollingsworth v. King, 810 S.W.2d 772 (Tex. App. – Amarillo 1991); City of Houston v Southwest Concrete Construction, Inc., 835 S.W.2d 728 (Tex. App. – Houston [14th Dist.] 1992).

With the advent of the internet, those days are now behind us.  More and more cities and counties are publishing their codes and charters on official websites, and access to this information is usually just a click or two away.  Virtually all municipalities in Tarrant County, for example, have both their city charters and city codes available to be downloaded from their websites.  More trial courts are willing to accept official website versions as at least presumptively reliable, given the safeguards of the fair notice and hearing requirements built into Rule 204, which allow the other side an opportunity to “meet the request,” i.e., challenge the accuracy of the status, wording or content of the version submitted to the court.

Rule 204 likewise allows, and, upon motion, mandates the taking of judicial notice of the contents of the Texas Register.  For those attorneys who are unfamiliar with this tome, the Texas Register is a weekly publication considered to be the “official journal” of state agency rulemaking in Texas.  It contains a treasure trove of regulatory information – attorney general opinions and opinion requests, all proposed, adopted, withdrawn and emergency rule actions, notices of any state agency reviews of agency rules, and a host of other miscellaneous information.  For example, one version contained a proposed rule change for the Texas Department of Insurance’s Prohibited Trade Practices regarding restrictions of claims in residential property insurance, including the text of the proposed change and information about the public comment process.  The Register is available on-line through the Texas Secretary of State’s website at www.sos.state.tx.us.

Any rulemaking actions become codified with other agency rules and regulations in the Texas Administrative Code, which is also maintained by the Secretary of State and may be downloaded from his website.  As with ordinances and codes, TRE 204 mandates that judicial notice be taken of both the Register and the Administrative Code when properly requested by any party.  Perhaps more persuasive than the mandatory language of TRE 204, however, is the judicial notice mandate found in the Government Code.  Tex. Gov’t Code §§2002.022(a) & 2002.054(1) provide that the contents of both the Register and the Administrative Code “are to be judicially noticed,” and at least one appellate court has interpreted this statutory language to require a court to take judicial notice of the Register and the Administrative Code even when no request has been made for the court to do so.  Eckman v. Des Rosiers, 940 S.W.2d 394, 399 (Tex. App. – Austin 1997) (lower courts owe obedience to these regulations, “like statutes or the decisions of a higher court…under the doctrine of stare decisis,” and have a mandatory duty to judicially notice them).

Obtaining judicial notice of codes, ordinances, rules or regulations is no longer the tedious task of days’ past, especially if you make the internet your first stop.  All the information you need may be only a mouse click or two away.

– Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


Using Judicial Notice to Prove Facts

June 25, 2011

Rooted in the ancient maxim, manifesta non indigent probatione (that which is known need not be proved)  judicial notice is believed to be one of the oldest doctrines of common law.  Although archaic,  judicial notice today remains an extremely useful, yet often under-utilized, method of proof  in Texas courts.    

Not only is judicial notice an enormous time-saving device, it also carries with it strong evidentiary value, especially in the civil context, where a jury is instructed to accept as conclusive any fact judicially noticed and will hear no evidence to rebut it.  Texas Rules of Evidence 201(g), Edmund M. Morgan, Judicial Notice, 57 Harv. L. Rev. 269 at 279 (1944).  (In criminal cases, noticed facts are probative, but not conclusive.)

Judicial notice may be used to prove adjudicative facts (Rule 201), the laws of other states and foreign countries (Rules 202 & 203), as well as city ordinances and administrative agency rules and regulations (Rule 204).  In appropriate circumstances, the court is mandated to take judicial notice, and in many instances, judicial notice may occur sua sponte.  But in all circumstances, the rules require that the opposing side be given notice and an opportunity to be heard on the issue.

With regard to adjudicative facts, there are two types of judicial notice available:  notice of generally-known facts (TRE 201b[1]), and notice of facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (Rule 201b[2]).  These two types of facts are quite different and distinguishable from one another.  For example, if the question at trial was whether the earth is round, as opposed to flat (as Flat Earth Society members still contend today), a court could take judicial notice under Rule 201b(1) that the earth is, in fact, round, because it is a fact generally known by persons of average intelligence and knowledge.  However, if more precision was necessary under the facts of a case, Rule 201b(2) would permit judicial notice to be taken that, in fact, the earth is NOT round, but an oblate spheroid, a fact not generally known, but nevertheless capable of accurate and ready determination by resort to reliable sources.

Even when judicial notice is employed, its scope and depth often remain untapped.  For example, few would hesitate to request judicial notice that the city of Fort Worth is located within Tarrant County.  But judicial notice can extend much further – certainly to the fact that a Starbucks is located in downtown Fort Worth on the west side of Houston Street between 3rd and 4th Streets, perhaps even to the fact that they sell beverages in three sizes:  tall, grande and venti.  Bender v. State, 739 S.W.2d 409 at 413 (Tex. App. — Houston [14th], 1987) (permitting judicial notice of the location of an MBank at a particular intersection inHouston).  The scope of judicial notice is not limited by level of detail, but by general knowledge and objective verifiability.

Another example of facts to which judicial notice should be taken are mathematical formulas, the laws of physics and other principles of natural forces, when supplied with necessary computations or information.  Drake v. Holstead, 757 S.W.2d 909 at 911 (Tex. App. — Beaumont 1988) (error found in a trial court’s refusal to take judicial notice of calculations of rates of speed, when supplied with mathematical computations to support it).  By invoking judicial notice in lieu of formal proof in these matters, an attorney can avoid at least two potentially unpleasant scenarios:  (1) putting a jury to sleep with tedious technical or scientific testimony, and, worse yet, (2) subjecting otherwise irrefutable evidence to debate, perhaps outright rejection, behind closed doors during jury deliberations. 

While judicial notice will cover matters such as the fact that there are twelve inches in a foot, it is not available for facts which are subject to reasonable dispute, such as the length of particular objects.  Brune v. Brown Forman Corp., 758 S.W.2d 827 (Tex. App. — Corpus Christi 1988).  This is a general rule, however.  Certainly the length of a football field or the dimensions of a 2005 Hummer H2 would both be ripe for judicial notice, because, again, they are capable of accurate and ready determination (or, in the case of the football field, generally known, at least within our own territorial jurisdiction). 

As a practical pointer, when judicial notice is sought on matters requiring reference to calculations, scientific treatises or the like, this is best heard in pretrial conference.  This will give the court an opportunity to consider whether these facts are the type to which judicial notice may be properly taken and/or whether necessary and adequate supporting information has been provided.  By scheduling the matter for hearing, all parties will be provided the requisite notice and an opportunity to be heard before the court takes judicial notice of the matter.  A ruling at the pretrial stage will also streamline case preparation and trial time by alleviating the burden of gathering and presenting evidence on matters which can be proved (conclusively!) through judicial notice.

– Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


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