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

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