dissenting.
I respectfully dissent. Appellant appeals a conviction in the municipal court of the City of Dallas, Texas, for operating a sexually oriented business within 1,000 feet of a public park in violation of Dallas City Code Section 41A-13(A)(4). The trial court denied appellant’s pretrial motion to quash the charging instrument. The trial court assessed a fine *185of $350.00 plus court costs. The County Criminal Court of Appeals affirmed the trial court’s judgment. Appellant appeals to this court. In his sole point of error, appellant contends that the trial court erred in convicting and sentencing appellant because the Dallas City Code, as a matter of law, is a facially discriminatory ordinance, that there was no proof that the city could protect its interest without such discrimination, that the definition of “state of nudity” in the code provision under which appellant was convicted is void, and therefore, appellant’s conviction and sentence is void. The issue as given us centers on the code’s definition of a “state of nudity” as being a state of dress which fails to opaquely cover the areola of the female breast. The parties approach to briefing is short and direct. Appellant points to Williams v. City of Fort Worth, 782 S.W.2d 290 (Tex.App.—Fort Worth 1989, writ denied), and prays that we reverse. The city cites MJR’s Fare of Dallas, Inc. v. City of Dallas, 792 S.W.2d 569 (Tex.App.—Dallas 1990, writ denied), and prays that we affirm. On this record, I cannot agree that MJR controls. MJR does not control because the city failed to adduce the evidence required under MJR to save the code from constitutional infirmity and make the code applicable to appellant. Therefore, I would apply the reasoning found in Williams. Accordingly, I would reverse and remand to the trial court with instructions to dismiss the complaint.
Introduction
Both Williams and MJR were declaratory judgment actions in which Williams and MJR attacked the validity of similar “state of nudity” city code provisions of the cities of Fort Worth and Dallas pertaining to sexually oriented businesses. The Dallas code provision before us in the present ease was the Dallas code provision before us in MJR. To understand why I would follow Williams rather than MJR, the reader, at the outset, must know that in MJR, the city, as its burden of proof, adduced undisputed expert testimony that (1) physiological and sexual distinctions exist between the male and female breast; (2) female breasts differ both internally and externally from male breasts; and (3) the female breast, but not the male breast, is a mammary gland. MJR, 792 S.W.2d at 575. No similar evidence was offered by the city in Williams. The absence of such evidence was noted by the Williams court. Williams, 782 S.W.2d at 296, n. 2. With respect to this burden of proof, the Williams court observed that while it did not quarrel with the general proposition that different physical characteristics may lead to different laws, the city has completely failed to prove how these different physical characteristics alone necessitate differing treatment of males and females in the ordinance. Williams, 782 S.W.2d at 296 (emphasis in opinion). Thus, Williams established the city’s burden of proof later accepted and undertaken by the city of Dallas in MJR. The city of Dallas, however, in this criminal prosecution of appellant, produced no such evidence. To my mind, the city’s failure to meet its burden of proof is fatal to the city’s criminal prosecution of appellant.
Hence, we reach the crux of my difference with the majority. In my view, the majority suggests two means by which to supply this missing evidence to the appellate decision-making process; first, the use of judicial notice of adjudicative facts; and second, application of the doctrine of stare decisis. To my mind, neither of the two means of supplying absent evidence is proper, whether taken separately or in combination. With the appeal in this posture, we must decide whether our prior decision in MJR controls (provided we take judicial notice of operative facts and apply the doctrine of stare decisis). In my view, we cannot take judicial notice or apply the doctrine of stare decisis as the majority would have us do. Because we cannot take judicial notice of operative facts and apply the doctrine of stare decisis, it follows that MJR does not control. Therefore, we must follow Williams and reverse. I would reverse because the code as applied to appellant on this record suffers constitutional infirmity and is void for purposes of criminal prosecution of appellant. The code cannot be the basis of appellant’s conviction because the city failed to prove operative facts which we held in MJR to be essential to validate application of the code.
*186The Issue of Judicial Notice
The majority tells us that based on the stipulated record, the county criminal court of appeals determined the municipal court took judicial knowledge of the common knowledge, common sense fact of physiological and sexual distinctions between male and female breasts. I agree that the trial court took judicial notice of common knowledge differences between male and female breasts. I disagree that the trial court could take judicial notice of common knowledge differences between male and female breasts. Nevertheless, the trial court addressed and applied the doctrine of judicial notice to supply the operative facts controlling the outcome of the present case. Unlike the trial court, the majority does not specifically address the question of judicial notice. In my view, however, the majority applies the doctrine of judicial notice and in effect holds that a court may take judicial notice of common knowledge difference between male and female breasts. As I explain later, the majority makes this application of judicial notice through its use of the doctrine of stare deci-sis. Therefore, I first discuss the majority’s silent but erroneous application of the doctrine of judicial notice before reaching the majority’s written but erroneous application of the doctrine of stare decisis.
As indicated, the majority would affirm on two grounds: first, that the trial court could take judicial notice of the operative facts; and second, that under the doctrine of stare decisis, MJR controls the application of law to the facts in this case. I recognize that the majority does not state two separate and distinct grounds for affirming. Instead, the majority in effect, erroneously looks to the concept of judicial notice to establish the facts adverse to appellant by acknowledging the trial court’s taking of judicial notice. Only then, and by the magic of judicial notice, does the majority hold that under the doctrine of stare decisis MJR controls the application of law to the facts in this case.
In any event, let us consider the matter of judicial notice. Rule 201(b) of the Texas Rules of Criminal Evidence provides that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Apparently applying this rule, the majority appears to agree with the trial court that a court may take judicial notice of common knowledge differences between male and female breasts.
Williams discusses two eases cited in support of the argument that a court may take judicial notice of common knowledge differences between male and female breasts. Mercer v. Board of Trustees, 538 S.W.2d 201, 206 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.) and City of Seattle v. Buchanan, 90 Wash.2d 584, 584 P.2d 918, 920 (1978). As to both Mercer and City of Seattle, I do not find reference to “judicial notice” or a court’s right to take judicial notice. Mercer was a high-sehool-boy’s “long hair case” in which the court pontificated: “With respect to ‘physical characteristics’ we are simply recognizing the facts of life. For us to adjudicate that women are men would be as futile as it would be absurd.” Mercer, 538 S.W.2d at 206. Nowhere in Mercer did the appellate court undertake to allow the doctrine of judicial notice to supply an operative fact of the “facts of life” or that “women are men” or that men and women are physically different.
In City of Seattle, appellants were convicted in municipal court of violations of a city ordinance defining as “lewd conduct” and making unlawful the public exposure of one’s genitals or female breasts. At trial, the appellants offered testimony of a physician who said that there is no difference in the composition of the flesh of male and female breasts; that the breasts do not form a primary sex characteristic but a secondary one; and that the degree of development of the breasts does not determine sex. The physician said, in clarification of this latter testimony, that some men have breasts as large as those of some small-breasted women. City of Seattle, 584 P.2d at 919. The court went on to observe that the city council was “concerned” with those body parts and functions which, according to society’s common sense of decency, should be kept private. City of Se*187attle, 584 P.2d at 920. In my view the “concerns” of lawmakers do not rise to the level of judicial notice in court. Indeed, the lawgiver acts on the public’s concerns; the judicial officer, on the other hand, must act on proven facts heard in open court. In City of Seattle, the court goes on to say that when the legislative intent is to protect the public concern for the privacy of intimate functions, common knowledge tells us, as it undoubtedly told the trial judge, that there is a real difference between the sexes with respect to breasts, which is reasonably related to the preservation of public decorum and morals. Governmental bodies have a right to enact laws to maintain a decent society. City of Seattle, 584 P.2d at 920.
As in Mercer, the court in City of Seattle was reflecting on the purpose and propriety of legislation. The court did not undertake to apply the doctrine of judicial notice to supply an operative fact of any party’s burden of proof in a criminal prosecution. If the court in City of Seattle was addressing evi-dentiary matters in that case, it did no more than say that the trial court was not obligated to credit all or any part of the appellant’s medical expert witness. Certainly, the court in City of Seattle fails to mention the taking of judicial notice. In sum, these two cases do not support a holding that a court may take judicial notice of common knowledge differences between male and female breasts.
Almost a century ago, our Court of Criminal Appeals admonished us to be cautious in the exercise of judicial power to take judicial notice. Where a court is authorized to take judicial cognizance of matters, it is held that this power must be exercised with caution, and care must be taken that the requisite notoriety exists, and every reasonable doubt upon the subject should be promptly resolved in the negative. Bland v. State, 42 Tex.Crim. 286, 59 S.W. 1119, 1120 (1900). Our sister court of appeals has taken this admonition to heart in Williams. There it was held that courts are not authorized to take judicial notice of the concept that the breasts of female topless dancers, unlike their male counterparts, are commonly associated with sexual arousal. Such a viewpoint might be subject to reasonable dispute, depending on the sex and sexual orientation of the viewer. See Williams, 782 S.W.2d at 297. In reaching this conclusion, the Williams court rejected application of Mercer and City of Seattle, but not necessarily on the same grounds that I do. Nevertheless, in my view, a court may not take judicial notice of common knowledge differences between male and female breasts. Indeed, both the presence of the expert testimony in City of Seattle and the absence of such testimony observed by the court in Williams tells us that “differences” between male and female breasts is an operative fact subject to reasonable dispute in this type of case. Hence, Rule 201(b) of the Texas Rules of Criminal Evidence does not allow judicial notice of the “differences” between male and female breasts. Thus, I would follow Williams in the disposition of the present case. Therefore, I cannot agree that the trial court could take judicial notice of the operative facts.
The Issue of Stare Decisis
But, as seen, the majority does not openly address the question of judicial notice. Instead, the majority claims to apply the doctrine of stare decisis. That the majority errs in relying upon the doctrine of stare decisis is clear from decisions of our Court of Criminal Appeals. The doctrine of stare decisis governs only the determination of questions of law and not questions of fact. It is a rule of precedent. Young v. State, 488 S.W.2d 820, 821 (Tex.Crim.App.1972). Here it is a question of fact that is in issue. Young, 488 S.W.2d at 821. In the present ease, we have a question of fact for decision in determining application of the code. Stare decisis should be controlling only if it makes sense or follows logical reasoning. Middleton v. State, 476 S.W.2d 14, 16 (Tex.Crim.App.1972). While the doctrine of stare decisis should be controlling only if it makes sense or follows logical reasoning, it is a rule of precedent, and creates a strong presumption in favor of established law. The doctrine has its greatest force in the area of statutory construction. Collier v. Poe, 732 S.W.2d 332, 345 (Tex.Crim.App.), appeal dism’d, 484 U.S. 805, 108 S.Ct. 51, 98 L.Ed.2d 15 (1987). In the present ease, we do not address statutory construction. We did that in MJR. Rather, *188we are confronted with missing facts necessary to be proved by the city and improperly sought to be supplied by the majority under the guise of judicial notice. To my mind, application of the doctrine of stare decisis does not make sense and does not follow logical reasoning. Indeed, it defies logic to say, as does the majority, that a rule of precedent creating a strong presumption in favor of established law somehow creates a strong presumption of facts in a criminal prosecution. I cannot agree that an accused can be convicted of a crime on presumed facts.
Consider the “judicial notice” used by the majority to force application of MJR upon appellant under the doctrine of stare decisis. The majority, having first recognized that the trial court took judicial notice of common knowledge differences between male and female breasts, then moves on to a discussion of the doctrine of stare decisis. The doctrine of stare decisis refers only to questions of law. See Horne v. Moody, 146 S.W.2d 605, 509 (Tex.Civ.App.—San Antonio 1940, writ dism’d judgm’t cor.). The majority states that stare decisis applies when the facts of the prior case are substantially the same as those in the later suit. See McKenzie Constr. Co. v. City of San Antonio, 50 S.W.2d 349, 353 (Tex.Civ.App.—San Antonio 1932, writ ref'd). Therefore, to apply the doctrine of stare decisis in the present case, the majority must find a prior case with facts and questions of law substantially the same as those of the present case. To this end, the majority cites MJR. Here, I note that the “facts” of MJR can only be substantially the same as those of the present case if those “facts” of MJR are supplied to the present case by the majority’s judicial notice.
MJR is a civil case, not a criminal case. MJR appealed the granting of a declaratory judgment upholding the constitutionality of the city ordinance before us. MJR, 792 S.W.2d at 571. Because MJR failed to meet the first prong of the strict judicial scrutiny inquiry, we found that the code, with its gender based classifications, did not violate the Equal Rights Amendment of the Texas Constitution. See Tex. Const. art. I, § 3a. MJR, 792 S.W.2d at 575. Nevertheless, the fact that MJR failed in its burden had no bearing on the city’s prior burden to prove to the fact-finder the male-female breast distinctions and differences. This burden the city met in MJR by expert testimony. This burden the city did not even attempt to meet in the present case. Hence, the city in the present case is in the same posture as was the City of Fort Worth in Williams.
In MJR, we held that the Equal Rights Amendment requires Texas courts to subject sex-based classifications to strict judicial scrutiny. MJR, 792 S.W.2d at 575. We further held that equal rights claims must undergo two-part inquiries. MJR, 792 S.W.2d at 575. First, we must determine whether the law discriminates against one sex on the basis of gender. Second, if we find the law discriminatory, this discrimination only survives judicial scrutiny if the proponent proves that no other means exist to protect the state’s compelling interest. MJR, 792 S.W.2d at 575. Initially, the burden of proof falls on the complainant to prove such discrimination exists. If satisfied, the burden of proof then shifts to the proponent of the discriminatory law, who must prove no other means exist to protect the state’s compelling interest. MJR, 792 S.W.2d at 575.
In MJR, MJR asserted that it met its burden of proof as to the first prong of the inquiry because the inclusion of the term “areola of the female breast” in the code without similar requirements for male performers unfavorably discriminated against females. MJR, 792 S.W.2d at 575. In response to MJR’s argument under the first prong, the city proceeded to adduce evidence. In order to show under the first prong of the inquiry that the law did not discriminate against females solely on the basis of gender, the city introduced undisputed expert testimony that (1) physiological and sexual distinctions exist between the male and female breast; (2) female breasts differ both internally and externally from male breasts; and (3) the female breast, but not the male breast, is a mammary gland. MJR, 792 S.W.2d at 575. Thus, in MJR, the city understood, and we determined, that it was the city’s burden at the outset to save the code from constitutional infirmity by proving to *189the fact-finder the male-female breast distinctions and differences. Nevertheless, in the present case, the majority would come to the city’s rescue by holding that the trial court could save the city by the happy circumstance of taking judicial notice by way of the doctrine of stare decisis of the required operative facts in this criminal prosecution brought under the very code before us in MJR.
As indicated, the city’s victory in the MJR civil case was fact intensive and fact controlled as to outcome. But this appellant was not a party to that civil case. I find it inconceivable that the majority can bind appellant to facts once proved in MJR. I cannot agree that by “judicial notice” by way of “stare decisis” MJR’s facts are cast in concrete. Any first year law student can envision the results of the majority’s approach. The city files charges in municipal court; the trial court takes judicial notice of the code; the assistant city attorney calls the trial court’s attention to MJR and its operative facts; the trial court on its own motion takes judicial notice of those operative facts; and the accused stands guilty as charged by the saving grace of the majority’s concept of judicial notice and stare decisis. The consequences of this means of criminal law procedure boggles the mind. Without much research, I am satisfied that prosecutors throughout the state can locate any number of murder, rape, robbery, etc. cases with state’s-burden facts requiring expert testimony which are similar to that of many a subsequent accused, and thereafter argue the majority’s reasoning. Thus ends the rule of law that to obtain a guilty verdict, the State must prove its case. I refuse to agree to a holding whereby this court will do the State’s job for it.
The Issue of Combining Judicial Notice and the Doctrine of Stare Decisis
I cannot agree that a person charged with violating a criminal statute or code can be convicted of a violation of that statute or code under the operative facts proved in an unrelated previous civil or criminal case involving the same statute or code. To my mind, the majority uses a blending of the doctrine of stare decisis and of judicial notice to affirm appellant’s conviction by transferring the factual evidence produced by the city in MJR to the inadequate trial record in the city’s prosecution of appellant in the present ease. I cannot agree to be a party to the demise of the right of cross-examination and the right to offer rebuttal evidence in a criminal prosecution. Lost also in the majority’s judicial slight of hand is the requirement that the State has the burden of proof beyond a reasonable doubt in a criminal prosecution. Indeed, the majority ignores the city’s burden of proof beyond a reasonable doubt in the present ease when, in the civil case, MJR had only to persuade by a preponderance of the evidence.1
The Majority’s Concept of Stare Decisis as Public Policy
The majority tells us that neither the State nor its political subdivisions should face multiple attacks on their laws once a court of competent jurisdiction declares the law constitutional. The majority reasons that the public policy basis for the doctrine of stare decisis compels this conclusion. Grounded on this public policy consideration, the majority looks to MJR and affirms. Williams, however, was decided before MJR and held Fort Worth’s version of the code unconstitutional. Indeed, the majority points to no differences in the two municipal codes. Thus, Williams becomes stare decisis. Therefore, if the public policy basis for stare decisis upon which the majority now grounds its decision is compelling, then I submit that this Court should not have revisited the issue in MJR, but written the controlling words “stare decisis” after citing Williams and ruled against the city in MJR. In my view, this Court properly revisited the issue in MJR because the record in MJR contained evidence of the operative facts required to decide the principal issue in these type of cases under the code in question. But in the present case, those operative facts are not in *190our record. Thus with the same allegiance to the doctrine of stare decisis as that professed by the majority, I would apply the holding in Williams to the record before us in the present case.
Conclusion
The majority’s silent application of Rule 201(b) of the Texas Rules of Criminal Evidence goes too far. Moreover, I cannot agree that this court, by use of the doctrine of stare decisis, can supply the operative facts of a criminal prosecution taken from an opinion disposing of a civil ease. On this record, I agree with appellant that we should follow Williams. Here, as in Williams, the target of the code stood his ground when a city threatened the target’s interests but failed to prove essential elements of the city’s case. Here, as in Williams, the court should refuse to come to the aid of the city with a “little judicial notice” necessary to invoke stare decisis. On this record, I conclude that application of the “state of nudity” provisions to appellant is unconstitutional and void. I reach this conclusion because the city failed to save the code from constitutional infirmity as to appellant under the first prong of the inquiry as mandated by this Court in MJR. See MJR, 792 S.W.2d at 575. Therefore, on this record, there exists no valid law denouncing as a crime the acts charged against appellant. Consequently, I would sustain appellant’s sole point of error, reverse, and remand to the trial court with instructions to dismiss the complaint.
CHAPMAN, J. joins in this opinion.
. Assuming the city’s burden of proof on constitutional applicability of the code (as distinguished from appellant's guilt) to be by the preponderance of the evidence, there remains the denial of cross-examination and tender of rebuttal evidence.