NO. 2115-01


JOHN WATTS, Appellant




Keasler, J., delivered this concurring opinion. Womack, J., joined Part I.


I disagree with the majority's discussion of judicial notice and its inclusion of statements unnecessary to the resolution of this case. I therefore concur only in the result.


The majority distinguishes between "taking judicial notice of adjudicative facts, and taking judicial notice of the law." (1) But judicial notice applies only to facts, not law. Professor Weinstein points out that courts sometime state that they are taking judicial notice of a law, and this is not appropriate. (2) He explains that the Advisory Committee to Federal Rule 201 felt that "the process by which the court informs itself of the applicable law is not a proper concern of the rules of evidence." (3)

Granted, as the majority points out, Evidence Rules 202 through 204 do discuss taking judicial notice of certain laws. But they are the laws of other states, foreign countries, or city and county ordinances. Controlling authority is something we expect judges to review as part of their duties in every case. There is no need for taking judicial notice of it.

The majority relies on our opinion in Legg v. State (4) as authority for taking judicial notice of state law. (5) In that case, the defendant argued that the State failed to prove that the Taylor County Jail was a penal institution. We took judicial notice that the Taylor County jail was a jail. (6) In doing so, we stated that "courts can take judicial notice of the laws of this State." (7) But we were not actually taking judicial notice of a law. We were taking judicial notice of a fact. We seemed to recognize that ourselves when we explained that "[i]f a fact is judicially noticed, it need not be pleaded or proved" and, therefore, "[t]he failure of the State to prove that Taylor County Jail is a penal institution as defined in the Penal Code did not render the evidence insufficient to sustain the conviction." (8)

I agree with the majority that the trial judge erred in this case by "directly address[ing] the jury on the specific application of law to facts in a different judicial decision." (9) I also agree with the majority that the trial judge was not taking judicial notice of either an adjudicative or a legislative fact. But neither was the judge's comment taking judicial notice of a law. Rather, as the majority also recognizes, the judge's comment "communicated an opinion concerning the weight of the evidence in this case," (10) and that was inappropriate.


I must also register my disapproval of the majority's inclusion of statements not necessarily to the resolution of this case:

The Court uses as examples fact situations inapposite to this case. (11)

The Court discusses judicial presumptions used in reviewing resolution of sufficiency claims on appeal (12) when that issue is not before us.

The Court discusses the trial judge's apparent "inadvertance" in excluding the word "water" from the charge and concludes that the court of appeals should consider whether this omission harmed Watts, (13) although this issue is also not before us.

Statements which are "unnecessary to the issue upon which the . . . Court . . . is writing" are dicta. (14) Dicta include "[a]n opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of an adjudication; an opinion expressed by a judge on a point not necessarily arising in a case; an opinion of a judge which does not embody the resolution or determination of the court, and made without argument, or full consideration of the point; not the professed deliberate determination of the judge himself." (15)

It is dangerous to include dicta in court opinions. "With neither case facts to sharpen analysis nor help from advocates' arguments, a dictum-issuing court necessarily writes broadly and ambiguously." (16) Additionally, "a court that employs a rule broader than the facts before it may properly consider the rule in relation to that particular case; however, the rule's potential bearing on all other cases will rarely be completely contemplated by the court." (17) Finally, "[i]t is often unwise for an appellate court to discuss issues not implicated by the facts of the case at bar, for it is difficult to test the operational dynamics of a legal rule being assembled in a factual vacuum." (18)

As Chief Justice Warren has explained, "[i]t has not been the custom of the Court, in deciding the cases which come before it, to write lengthy and abstract dissertations upon questions which are neither presented by the record nor necessary to a proper disposition of the issues raised." (19) He complained that the majority's opinion in that case "departed from this custom and is in the nature of an advisory opinion, for it attempts to resolve with finality many difficult problems which are at best only tangentially involved here." (20) The majority's opinion in this case does the same thing.

Given the prevalence of dicta in court opinions and the standard complaints from dissenters, "[o]ne wonders why obiter dicta are even present." (21) One author has some theories:

Sometimes, they are included for reasons of contrast. Sometimes, judges appear to be writing short essays on the law. Perhaps the judge wants the opinion included in a case book. Perhaps he is bucking for another job. Perhaps the judge writes well and is looking for a mode of self-expression. Perhaps he does not write the opinions at all but leaves them to law clerks who do not know any better, or who think they still are writing term papers. Perhaps all of these reasons apply, and perhaps there are others as well. (22)

Regardless of the reasons, the urge to write beyond what is necessary in any case should be tamed. Justice Selya of the United States Court of Appeals for the First Circuit argues that appellate courts should strive for prudence in their opinions. "[P]rudence counsels judges not to reach out and decide large, controversial issues in the absence of a necessity to do so. The prudent jurist will typically decide cases on the narrowest, surest ground available, leaving tougher calls, with broader implications, for future cases that squarely present them." (23)

I concur in the Court's judgment.


DATE FILED: March 12, 2003


1. Ante, slip op. at 8.

2. 1 Weinstein's Federal Evidence 201.03[3] (2d ed. 2002).

3. Id. at 201.03[3].

4. 594 S.W.2d 429 (Tex. Crim. App. 1980).

5. Ante, slip op. at 9.

6. Legg, 594 S.W.2d at 432.

7. Id.

8. Id.

9. Ante, slip op. at 13.

10. Id.

11. Id. at 8-9, 10, and 14 n.30.

12. Id. at 11 n.25.

13. Id. at 11 n.26.

14. Michael Sean Quinn, Symposium on Taking Legal Argument Seriously: Argument and Authority in Common Law Advocacy and Adjudication: An Irreducible Pluralism of Principles, 74 Chi.-Kent L. Rev. 655, 713 (1999).

15. Grigsby v. Reib, 105 Tex. 597, 602, 153 S.W. 1124, 1126 (1913).

16. Richard B. Cappalli, What is Authority? Creation and Use of Case Law by Pennsylvania's Appellate Courts, 72 Temple L. Rev. 303, 310 (1999).

17. Joshua C. Dickinson, Casenote: Standing Requirements for Intervention and the Doctrine of Legislative Standing: Will the Eighth Circuit "Stand" by Its Mistakes in Planned Parenthood of Mid-Missouri & Eastern Kansas, Inc. V. Ehlmann?, 32 Creighton L. Rev. 983, 1024 (1999).

18. Evan Tsen Lee, Deconstitutionalizing Judiciability: The Example of Mootness, 105 Harv. L. Rev. 605, 649 (1992).

19. Culombe v. Connecticut, 367 U.S. 568, 635-36 (1961) (Warren, C.J., concurring).

20. Id.

21. Quinn, 74 Chi.-Kent L. Rev. at 713.

22. Id.

23. Hon. Bruce M. Selya, Essay: Thoughts from the Bench: The Confidence Game: Public Perceptions of the Judiciary, 30 New Eng. L. Rev. 909, 916 (1996).