Beth M. Johnson
Scope of Judicial Notice Can be Waived Absent an Objection
Updated: Jan 31, 2022
Judicial notice can be a time-saving method to get evidence that has been previously presented into the current record. See Tex. R. Evid. 201–204. A court can take judicial notice of its own records (e.g., pleadings, affidavits, orders, judgments) in a case involving the same, or practically the same parties. See e.g., In re S.M.R., 434 S.W.3d 576, 582 (Tex. 2014 (in case terminating parental rights, court took notice of prior order granting temporary managing conservatorship to TDFPS). In this case, it is not necessary to supply the court with a copy of the records to be judicially noticed. See Estate of York, 934 S.W.2d 848, 851 (Tex. App.—Corpus Christi 1996, no writ).
In general, the facts that the court can take judicial notice of are:
whether a particular document has been filed with the court (e.g., waiver of service);
the date on which the document was filed (e.g., has 60 days passed since the filing of the original petition?); and
whether the document was before the court at the time of a hearing or trial. In re C.S., 208 S.W.3d 77, 81 (Tex. App.—Fort Worth 2006, pet. denied).
The court cannot take judicial notice of the truth of the factual statements and allegations in the pleadings, affidavits, or other documents in the court’s file. E.g., Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (court cannot take judicial notice of testimony from earlier hearing or trial; for earlier testimony to be considered, it must be authenticated and entered into evidence.)
However, if a party fails to object to a request to take judicial notice of “all of the contents” of the court’s own file, that failure could waive any appellate complaint regarding the scope of the judicial notice. See In re H.H., No. 10-21-00040-CV, 2021 WL 2252707, at *2 n.2 (Tex. App.—Waco 2021, no pet.) (mem. op.); see also, D.M. v. TDFPS, No. 03-20-00557-CV, 2021 WL 1418986, at *7–*8 (Tex. App.—Austin 2021, no pet.) (mem. op.).
For a court’s own orders and judgments—as opposed to pleadings or exhibits—the court can take judicial notice of the truth of the results reached. See, e.g., In re H.M.P., No. 13-08-00643-CV, 2010 WL 40124 (Tex. App.—Corpus Christi 2010, no pet.) (mem. op.); Longhurst v. Clark, No. 01-07-00226-CV, 2008 WL 3876175 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (mem. op.).
Additionally, pursuant to Texas Family Code, a district court presiding over a de novo hearing can take judicial notice of and consider the transcript of the initial hearing before the associate judge. Tex. Fam. Code § 201.015(c); In re M.L.U., No. 04-20-00573-CV, 2021 WL 1894831, at *3 (Tex. App.—San Antonio 2021, no pet.) (mem. op.).
A court can take judicial notice of another court’s records if a party provides proof of records. Freedom Comms. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012); see Brown v. Brown, 145 S.W.3d 745, 750 (Tex. App.—Dallas 2004, pet. denied). Proof can be shown by a verified copy of the record or a reference to where the record can be found if it has been made public. Freedom Comms., 372 S.W.3d at 623–24; Ramey v. Bank of N.Y., No. 14-06-00824-CV, 2010 WL 2853887 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (mem. op.).
If you want the court to consider evidence from a prior hearing—say, a temporary orders hearing—at final trial, the best practice is to introduce the temporary order transcript and exhibits at final trial as its own exhibit. Otherwise, you run the risk of the court only being able to take judicial notice that the hearing occurred on a particular date, and the court ruled a certain way. And, if you do not want the court to take judicial notice of the truth of the matters contained in the file, be sure to raise an objection if your opposing counsel does not offer the actual transcript.