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  • Writer's pictureBrian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 202

Updated: Jan 21

Conroe Criminal Defense Lawyer Texas Rules of Evidence Series Rule 202

Rule 202 of the Texas Rules of evidence allows a judge to take judicial notice of a law in another state. This can come into play in criminal cases when the State is seeking to enhance punishment by resorting to the law of another state. In Texas you may not have your punishment enhanced for a felony offense unless you have a prior felony conviction that has become "final." If the conviction is from Texas then "final" means you went to prison or state jail and your initial appeal is not currently pending. In other words, its over. Nothing short of a governor's or presidential pardon can save your record.

Until 2018 the law in Texas stated that in order to determine if a conviction from another state had become, "final." If another state allowed enhancement based off of a conviction where the individual received probation instead of going to prison then in Texas a prosecutor could enhance a new felony with this conviction from another State. This is no longer the case since 2018 when the Court of Criminal Appeals decided Ex parte Pue, 552 S.W.3d 226, 229 (Tex. Crim. App. 2018). In Pue the Court rules that a prior conviction for which the defendant received probation and would have been eligible under California law for enhancement did not in fact allow for enhancement under Texas law. In order to reach this conclusion the parties would have had to offer evidence of what the law was in California. Under Rule 202 the trial court and even the Court of Appeals would have been able to take judicial notice of the laws in another state, both through statute, and cases decided by the Courts of California. (Common law).

Another area this can come up is in trying to determine if the elements of another State's statutes are substantially similar to that of a Texas Statute for purposes of enhancement or sex offender registration. For example a new Texas offense for assault family member may be enhanced by an out of state conviction. Texas Penal Code Sec. 22.01(f)(2) reads, "a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed in those subsections is a conviction of the offense listed."

Unlike "adjudicative facts" which are submitted to the jury the taking of judicial notice of a particular law is a legal question that should not be presented to the jury.

Rule 202. Judicial Notice of Other States’ Law

(a) Scope. This rule governs judicial notice of another state’s, territory’s, or federal jurisdiction’s:

  • Constitution;

  • public statutes;

  • rules;

  • regulations;

  • ordinances;

  • court decisions; and

  • common law

(b) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the

necessary information.

(c) Notice and Opportunity to Be Heard.

(1) Notice. The court may require a party requesting judicial notice to notify all other parties of the request so they may respond to it.

(2) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of

taking judicial notice and the nature of the matter to be noticed. If the court takes judicial

notice before a party has been notified, the party, on request, is still entitled to be heard.

(d) Timing. The court may take judicial notice at any stage of the proceeding.

(e) Determination and Review. The court—not the jury—must determine the law of another state, territory, or federal jurisdiction. The court’s determination must be treated as a ruling on a question of law.

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