dissenting.
I dissent to the majority’s disposition of this case due to the fact it is erroneously decided on two grounds. First, and foremost, is the majority’s reliance on Barrien-tez v. State, Tex.Cr.App., 500 S.W.2d 474. In Barrientez, this Court erroneously extended the doctrine of judicial notice to allow the trial judge, at a revocation of probation hearing, to judicially notice evidence introduced in a prior proceeding. After the trial judge took judicial notice of the evidence in Barrientez, this Court affirmed the judgment assuming that if the testimony at the prior proceeding had been in the appellate record, it would have been sufficient to support the revocation.1 With such an extension and perversion of the doctrine of judicial notice I cannot agree and I would overrule Barrientez and the subsequent cases which rely upon it. See, for example, Green v. State, Tex.Cr.App., 528 S.W.2d 617.
Assuming for the moment that Barrien-tez was correctly decided, the majority opinion abates the appeal in order for the “judicially noticed” testimony to be placed in the record. In this regard, the majority states:
“Under the Barrientez rule for revocation of probation hearings, the facts judicially noticed here were matters of testimony heard in the prior criminal trial, i. e., that certain witnesses gave certain testimony. Those facts, i. e., what the testimony was, is not shown in this record and is not known to this Court, and yet, to dispose of the issue of the sufficiency of the evidence raised in this case, such facts judicially noticed must be known to this Court.”
The majority opinion then disposes of the matter by abating the appeal. However, such a result is inapposite to the holding (albeit erroneous) in Green v. State, supra. In Green, the defendant attacked the sufficiency of the evidence to support the revocation order where the trial court had simply taken judicial notice of the testimony introduced at a prior proceeding without incorporating that testimony into the record in any way. In Green, relying primarily on Barrientez, the judgment was affirmed. It is apparent that if this Court is to follow the decisions in Barrientez and Green, the majority must affirm the revocation order.
However, I join with Presiding Judge Onion in proposing a solution to the problem presently facing this Court. Barrientez and its progeny should be overruled. In so doing, this Court would again adopt the general rule as stated in 29 Am.Jur.2d, Evidence, Sec. 58:
“[T]he courts will not take judicial notice of the proceedings or record in another cause, whether such cause was tried in the same court or in another court, so as thereby to supply, without the formal introduction of evidence, facts essential to the support of the particular cause before the court from those shown in the prior cause. This rule applies even though the other proceeding bears upon the controversy under consideration, and even though it was between the same parties. Unforeseeable consequences could result from any such rule as that in the trial or hearing of a particular cause the plaintiff or complainant could present therein a part of the facts of his case and thereupon call upon the court to take judicial notice of the record in another cause, even in the same court, whereby to supply the remainder of the facts essential to a decree or judgment in his favor in the instant cause before the court. If the courts were to take judicial notice of facts adjudicated in another cause, it would make such facts, although unsupported by evidence in the instant cause, conclusive against the opposing party, while if they had been properly intro*741duced, they might have been met and overcome by him.”2
The adoption of such a rule would require the State to introduce into evidence the transcription of the court reporter’s notes of the prior proceeding.3 Such a procedure would not only allow this Court to properly determine the sufficiency of the evidence but would also afford a defendant the opportunity to rebut the introduction of that testimony.4
To follow the rule originally espoused in Barrientez could lead to unreasonable results. A defendant on probation could be tried and acquitted of a subsequent offense; and yet, under the lower standard of proof in a revocation proceeding, the trial judge could later take “judicial notice” of the testimony offered in that acquittal and in considering that testimony with all the reasonable inferences, the trial court could revoke a defendant’s probation. This revocation could be accomplished by the State without presenting any evidence or placing any witnesses on the stand. Such a procedure could only be termed unfair as it would not afford a defendant the opportunity to rebut the prior testimony nor would it allow this Court to review the sufficiency of the evidence on appeal.5 With such a result I cannot agree.
*742This Court has consistently held that due process of law applies to revocation proceedings. Campbell v. State, Tex.Cr.App., 456 S.W.2d 918; Spencer v. State, Tex.Cr.App., 503 S.W.2d 557; Nicklas v. State, Tex.Cr.App., 530 S.W.2d 537; see also Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
For the reasons stated, I respectfully dissent.
. In this regard, I disagree with the view expressed in the dissenting opinion by Presiding Judge Onion. I prefer to solely view the holding in Barrientez as being erroneously decided rather than assume also that the majority in that case improperly considered the record in another appellate case.
. See Butler v. Eaton, 141 U.S. 240, 11 S.Ct. 985, 35 L.Ed. 713 (1891); Funk v. Commissioner of Internal Revenue, 163 F.2d 796 (3rd Cir. 1947); Fox v. Schaeffer, 131 Conn. 439, 41 A.2d 46 (1944). I recognize there are special circumstances where a trial court may be able to take judicial notice of certain proceedings in a prior case; however, such a situation is not present in the case at bar. See generally 29 Am.Jur.2d, Evidence, Sec. 59. It has been held that a court may take judicial notice of the record in a prior case when passing on a demurrer. Corliss v. Davidson and Case Lumber Company, 183 Okl. 618, 84 P.2d 7 (1938); Witzenburg v. State, 140 Neb. 171, 299 N.W. 533 (1941); Frank v. Wilson, 27 Del.Ch. 292, 32 A.2d 277 (Del.Sup.Ct.1943); Fleming v. Anderson, 187 Va. 788, 48 S.E.2d 269 (1948). Further, some courts consider divorce a special form of action and allow judicial notice of a prior relevant matrimonial action on the reasoning that the state is an interested party and has a duty to ascertain all the pertinent facts. See Commonwealth v. Branch, 175 Pa.Super. 373, 104 A.2d 183 (1954); similarly, see In Re Adoption of K., 417 S.W.2d 702 (Mo.App.1967). Cf. the following cases where the trial court did not take judicial notice of the contents of a prior proceeding. Hail v. State, 106 Tex.Cr.R. 511, 293 S.W. 831; Calloway v. State, 91 Tex.Cr.R. 502, 240 S.W. 553; McClure v. State, 100 Tex.Cr.R. 652, 273 S.W. 604; White v. State, 154 Tex.Cr.R. 498, 228 S.W.2d 183; Horman v. State, Tex.Cr.App., 423 S.W.2d 317; Hardison v. State, Tex.Cr.App., 450 S.W.2d 638.
. In Alley v. State, 154 Tex.Cr.R. 145, 225 S.W.2d 970, the trial judge took judicial notice of prior proceedings involving the same defendant in assessing punishment. After quoting from the trial judge’s statement of facts, which were based on consideration of “judicial knowledge” of the substance of the prior proceedings, this Court stated: “It scarcely seems necessary to go further than set out the court’s own reasons for fixing the punishment in this case to demonstrate an error calling for a reversal of the judgment.”
In State v. Shreve, 30 Utah 2d 100, 514 P.2d 216 (1973), that court stated:
“It seems to be the law that a court will take judicial knowledge of its own records insofar as those records are a part of the matter before the court. However, records of other proceedings in the court cannot be judicially noticed and must be introduced in evidence in order to be considered in the pending case.”
. In Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889 (1943), that court stated:
“[A] party should have the issues of fact of his case, or of his defense, decided, and the sufficiency of the evidence thereon reviewed, upon evidence lawfully introduced in the trial of his case, or defense, in the trial court. It is there that he has the opportunity to confront and cross-examine the witnesses who may testify against him and examine such documentary proof as may be introduced into evidence by the adverse party. It is only in the trial court that a party has an opportunity to rebut, impeach, or explain, if he can, such evidence as may be adverse to his cause. And a party may justly be required to introduce in the trial in the trial court the evidence upon which he depends to sustain his case, or defense, for there only the adverse party has the opportunity to confront the witnesses, examine the documentary proof and rebut, impeach, or explain such evidence as may appear adverse to him. It is not just that a court should, in deciding the issues of a case, consider evidence introduced in another and different case, and thus decide a case upon evidence which a party had been afforded no opportunity to refute.”
. I recognize that a prior acquittal can be the basis of a revocation proceeding due to the lower standard of proof required in a probation *742revocation. Scamardo v. State, Tex.Cr.App., 517 S.W.2d 293; Russell v. State, Tex.Cr.App., 551 S.W.2d 710. The example is given to point out that grave due process questions might be raised if a trial court can revoke a defendant’s probation by simply taking “judicial notice” of a prior record without the introduction of any evidence by the State at the revocation hearing.