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Rule 184a. Determination of the Laws of Foreign Countries (1988)

TEXT

A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice, and at least 30 days prior to the date of trial such party shall furnish all parties copies of any written materials or sources that he intends to use as proof of the foreign law. If the materials or sources were originally written in a language other than English, the party intending to rely upon them shall furnish all parties both a copy of the foreign language text and an English translation. The court, in determining the law of a foreign nation, may consider any material or source, whether or not submitted by a party or admissible under the rules of evidence, including but not limited to affidavits, testimony, briefs, and treatises. If the court considers sources other than those submitted by a party, it shall give the parties notice and a reasonable opportunity to comment on the sources and to submit further materials for review by the court. The court, and not a jury, shall determine the laws of foreign countries. The court's determination shall be subject to review as a ruling on a question of law.

Amended by order of July 15, 1987, eff. Jan. 1, 1988. Comment. Changed to conform with Texas Rules of Civil Evidence 203. Corrected and clarified by order of Dec. 16, 1987, eff. Jan. 1, 1988: In the July 15, 1987 Order, references to Rules of Evidence and Texas Rules of Evidence should be changed to Texas Rules of Civil Evidence.

ADVISORY OPINIONS

(No. 100) Question: Is Rule 184a, which becomes effective at the beginning of 1944 and has regard to judicial notice of foreign law, a rule of evidence so that the foreign law must be pleaded or else be presumed to be the same as the law of Texas, or is it a rule of law to the extent that such presumption is eliminated?

Answer: Pleading of the law of the foreign states and other jurisdictions referred to in Rule 184a is not necessary. If the trial court takes judicial notice in such a case, the parties must be either movants therefor or put on notice beforehand as required in the rule. If they so move or are put on notice, the trial judge may consider the matter and come to a conclusion upon it. In the absence of the indicated procedure the ordinary rule heretofore obtaining in Texas will apply; that is, that the law of Texas will govern. In the absence of the condition which sets in force the exception, the Texas common law rule will apply. See Prudential Ins. Co. v. Shumaker, 178 Md. 189, 12 A.2d 618 (1940); McCormick and Ray on Evidence, Sec. 58; and Rule 184.

6 Tex. B.J. 500 (1943) reprinted in 8 Tex. B.J. 37 (1945).

Question: Does Rule 184a change the law as it existed prior to the effective date of the rules, with reference to a state court taking judicial notice of federal statutes, federal decisions, rules, regulations and proclamations, including those of federal boards and bureaus?

Answer: Prior to the effective date of the rules, the state courts could under the law take judicial notice of federal statutes and decisions but could not take judicial notice of the common law, public statutes or court decisions of other states or territories. The purpose of the rule was to make it possible for state courts to take such judicial notice of the laws of other states, and in the opinion of the committee such rule was not intended to, nor does it, change any law existing covering judicial notice of federal statutes and decisions. The words "judicial notice of the common law, public statutes and court decisions of every other state, territory or jurisdiction of the United States" used in the Rule relate to governmental units of the United States, such as a state, territory, District of Columbia and non-territorial islands of the United States. The intent to exclude from the Rule the United States, proper is further shown by the use of the words "common law," since it is settled that there is no common law of the United States. As stated, the sole purpose of the Rule was to permit the courts of this state to take judicial notice of the common law, public statutes or court decisions of other states or territories, and not to change the rule with respect to judicial notice of federal statutes and decisions.

8 Tex. B.J. 174 (1945).