§ 38.004.Judicial Notice
Title 2. Trial, Judgment, and Appeal · Subtitle C. Judgments · Chapter 38. Attorney's Fees · Last amended 1985 · Last verified August 29, 2026
Full Text of § 38.004
Plain-English Summary
The companion to the presumption, and it addresses proof rather than reasonableness.
The court may take judicial notice of the usual and customary attorney's fees and of the contents of the case file without receiving further evidence in a proceeding before the court, or in a jury case in which the amount of attorney's fees is submitted to the court by agreement.
Note the two settings, and what they have in common. Both are situations where the judge decides the fee. Judicial notice of customary rates is unavailable where a jury is deciding the amount — the jury has no access to the court's own knowledge of local rates or to the case file, so fees put to a jury must be proved by evidence in the ordinary way.
"The contents of the case file" is a meaningful inclusion. The judge may look at the pleadings, motions, orders, and settings already in the record to gauge the work the case required, without a lawyer testifying to what the file already shows.
The provision is permissive — may, not shall. A court is free to require evidence, and in a contested fee dispute usually will.
Frequently Asked Questions
Can a judge award fees without testimony?
In a proceeding before the court, or in a jury case where fees are submitted to the court by agreement, the court may take judicial notice of usual and customary fees and of the case file without further evidence.
Does this apply when a jury sets the fee?
No. Both settings in the section are ones where the judge decides the amount. Fees submitted to a jury must be proved by evidence.
Is the court required to take judicial notice?
No. The section is permissive, and a court may require evidence — in a contested fee dispute it usually will.
Amendment History
- Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.