dissenting.
Appellant contends the trial judge erred in admitting novel scientific evidence, namely the results of a horizontal gaze nystagmus (HGN) test.1 Because the majority relieves the State of the burden of proving the reliability of that test, I respectfully dissent.
I.
THE INSTANT CASE
Arturo Trevino, a Corpus Christi police officer, testified he attended a three-day school to become certified to administer the HGN test. Through his training, Trevino was taught to observe “very distinct jerking of the eyeball” because, as Trevino testified:
... when you look to the right and you are sober you have control of your muscles so your eye doesn’t really jerk even though it wants to come back to the front wherever you are facing towards, so when you are intoxicated you cannot control your muscles that well, well then the eye jerks more because of the intoxication because they want to come back and look straight towards the front.
Trevino was dispatched to the scene of an automobile accident involving appellant. Suspecting appellant was intoxicated, Trevino asked appellant to perform several sobriety tests including the HGN. Appellant’s eyes were unable to smoothly follow Trevino’s pen, distinctly jerking prior to a forty-five degree angle and jerking at their maximum deviation. In Trevino’s opinion, appellant’s performance on the HGN test indicated appellant was intoxicated and did not have the normal use of her mental and physical faculties.
On cross-examination Trevino admitted the HGN test was not 100% accurate, and that he had never worked as a medic. He did not check the dilation of appellant’s pupils and had never talked to anyone who had suffered a concussion.2
II.
KELLY v. STATE
The issue presented is the admissibility of the results of a horizontal gaze nystagmus (HGN) test. The admissibility of such novel scientific evidence is controlled by Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App.1992). In Kelly, the State sought to introduce DNA “fingerprint” evidence. Kelly contended such evidence was not generally accepted as reliable by the scientific community and was, therefore, inadmissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). We rejected the Frye test and held Tex.R.Crim. *773Evid. 702 governed the admission of such evidence. Under Rule 702:
... the trial court’s first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results.
Kelly, 824 S.W.2d at 572. In order for a scientific theory to be reliable we held the evidence must satisfy all of the following criteria:
(a) the underlying scientific theory must be valid;
(b) the technique applying the theory must be valid; and,
(c) the technique must have been properly applied on the occasion in question.
Id., 824 S.W.2d at 573. See also, Tex. R.Crim.Evid. 705. Finally, we held the proponent of such evidence had the burden of proving, by clear and convincing evidence, that the evidence was reliable. Kelly, 824 S.W.2d at 573 (quoting Zani v. State, 758 S.W.2d 233, 243 (Tex.Cr.App.1988)).
In Kelly, the State met this burden by presenting extensive evidence of the reliability of DNA evidence at trial. Id., 824 S.W.2d at 570. However, unlike Kelly, in the instant case the State presented no evidence concerning the reliability of the HGN test. The majority recognized the absence of this evidence stating, “[i]n the instant case ... the trial court made no such inquiry concerning the admissibility of the HGN evidence pursuant to Rule 702_” Majority Op., 880 S.W.2d at 764. Because of this lack of evidence, the majority resorts to judicial notice in order to relieve the State of its burden of proving the validity of the scientific theory underlying HGN testing and the validity of the techniques applying the theory. Further, the majority does this without providing the parties the opportunity to brief or argue the reliability of the HGN test.
III.
JUDICIAL NOTICE
A.
Black’s Law Dictionary defines judicial notice as:
The act by which a court, in conducting a trial, or framing its decision, will, of its own motion, and without the production of evidence, recognize the existence and truth of certain facts, having a bearing on the controversy at bar, which, from their nature, are not properly the subject of testimony, or which are universally regarded as established by common notoriety, e.g., the laws of the state, international law, historical events, the constitution and course of nature, main geographical features, etc.... The cognizance of certain facts which judges and jurors may properly take and act upon without proof, because they already know them.3
BLACK’S LAW DICTIONARY 986 (4th ed. 1968). The doctrine of judicial notice has been described as
... one of common sense. The theory is that, where a fact is well known by all reasonably intelligent people in the community or its existence is so easily determinable with certainty from sources considered reliable, it would not be good sense to require formal proof.
1 Texas Practice § 151 at 192 (3rd ed. 1980).
A trial judge may take judicial notice of a public law of this state, federal laws, a county’s population, the court’s jurisdiction, and his own orders, records or judgments. See, Ex parte McCullough, 416 S.W.2d 420 (Tex.Cr.App.1967); Legg v. State, 594 S.W.2d 429, 432 (Tex.Cr.App.1980); Plaster v. State, 567 S.W.2d 500, 502 (Tex.Cr.App.1978); Lucas v. State, 129 Tex.Crim. 213, 86 S.W.2d 638, 640-641 (Tex.Cr.App.1935); De La Garza v. State, 579 S.W.2d 220, 223 (Tex.Cr.App.1979); Leyva v. State, 552 S.W.2d 158, 163 (Tex.Cr.App.1977); and, Victory v. State, 138 Tex. 285, 158 S.W.2d 760, 763 (App.1942). A trial judge may also take judicial notice of certain historical events, geographical matters, the intoxicating effect of certain beverages and the operations of certain types of businesses. Ex parte Britton, 382 S.W.2d 264, 265 (Tex.Cr.App.1964); Keener v. State, 456 S.W.2d 912, 914 (Tex.Cr.App.1970); Parrack v. *774State, 154 Tex.Crim. 532, 228 S.W.2d 859, 861 (App.1950); Hines v. State, 362 S.W.2d 652, 659 (Tex.Cr.App.1962); and, Carter v. State, 150 Tex.Crim. 448, 203 S.W.2d 540, 543 (App.1947).
However, judicial notice is not the equivalent of personal knowledge and judicial notice may not be taken of matters not known generally. See, Jackson v. State, 70 Tex.Crim. 582, 157 S.W. 1196 (App.1913). Judicial notice may not be taken of the laws of another state or a city ordinance. See, Plaster, 567 S.W.2d at 502; Wickware v. Session, 538 S.W.2d 466, 469 (Tex.Civ.App.—Tyler, 1976); Cole v. State, 556 S.W.2d 343, 345 (Tex.Cr.App.1977); Peach v. State, 498 S.W.2d 192 (Tex.Cr.App.1973), and, Patton v. State, 112 Tex.Crim. 351, 16 S.W.2d 1072 (App.1929). We have held:
... 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 (App.1900).
Furthermore, it is inappropriate to use judicial notice to satisfy the State’s burden of proof. Johnson v. State, 160 Tex.Crim. 290, 269 S.W.2d 393, 394 (App.1954). In Johnson, the State faded to prove venue and asked this Court to resort to judicial notice in order to satisfy the State’s burden. We rejected the State’s request and stated:
... Unless we can consider an uninitiated interlineation in the statement of facts, proof of venue must rest on judicial notice that the trial was held at Wheeler (the County Seat of Wheeler County), and that a point from one to four miles from Wheeler, on the highway leading toward Pampa, was in Wheeler County.
The courts should not be called upon to rely upon such evidence when the proof is available to establish that the place where the offense was committed was in Wheeler County.
Id., 269 S.W.2d at 394.
In Urban v. State, 387 S.W.2d 396 (Tex.Cr.App.1965), the State charged Urban with engaging in the business of bookmaking which required proof that Urban committed three acts of bookmaking within one year preceding the indictment. Art. 652a, § 2, Vernon’s Ann. P.C. The State introduced a copy of Urban’s indictment and offered no further proof. Urban, 387 S.W.2d at 397-398. Anticipating the introduction of the indictment was not sufficient, the State contended the date of Urban’s indictment was within “judicial knowledge.” We disagreed and held:
The state earnestly insists that the doctrine of judicial notice applies in this case and that the indictment as read shows the acts to have been committed within less than one year prior thereto. The state says that judicial notice takes the place of proof and is of equal force and that the evidence is sufficient to support the conviction. However, the record here does not reflect that the Court took judicial notice. No request was made that the Court judicially notice the indictment or anything else. The [trial judge] did not indicate that it had judicially noticed the indictment, nor certainly was there a showing that the [trial judge] instructed the jury to consider the indictment under the doctrine of judicial notice. We doubt that it would have been proper for a [trial judge] to have judicially noticed a vitally contested bit of imperative proof, such as the three essential dates in the indictment, anyhow. We think the state was relegated to proof and should have and could have adduced evidence pertaining to these dates without relying upon the indictment.
Urban, 387 S.W.2d at 398.
B.
In support of its decision to resort to judicial notice, the majority purports to rely upon Grice v. State, 142 Tex.Crim. 4, 151 S.W.2d 211 (App.1941), and Chapa v. State, 729 S.W.2d 723 (Tex.Cr.App.1987). However, neither case is on point.
In Grice we considered whether fingerprint evidence was alone sufficient to sustain *775a conviction.4 Although we took judicial notice of the development of the science of fingerprint identification, the record also spoke to the issue. Grice, 151 S.W.2d at 217. At trial, the State presented expert testimony concerning the theory behind fingerprint identification and the procedures used to identify Grice.5 The State’s expert witness was cross-examined extensively on the theory behind fingerprint identification and we had the benefit of a well-developed record on which to base our decision.6
In the instant case Trevino presented the only evidence concerning HGN testing. Trevino’s testimony only addressed the procedures he was taught at a three day school on HGN testing and the procedures he followed in testing appellant. The record is silent as to the scientific basis or reliability of HGN testing. Therefore, Grice is distinguishable from the instant case.
In Chapa we considered whether an individual has a reasonable expectation of privacy in a taxicab. Chapa, 729 S.W.2d at 726-727. Chapa testified he held such an expectation. To determine what expectations are recognized and permitted by society, Rakas v. Illinois, 439 U.S. 128, 143, n. 12, 99 S.Ct. 421, 430-431, n. 12, 58 L.Ed.2d 387 (1978), we recognized that several municipal codes throughout Texas recognized a passenger’s exclusive right to the passenger compartment of a taxicab. Chapa, 729 S.W.2d at 728. The majority apparently feels our recognition of a municipal code in Chapa amounted to judicial notice of such codes. However, our acknowledgement of the municipal codes was, as it was in Grice, simply on additional matters which we consulted to aid in our review of the record and the issues presented.7 Id., 729 S.W.2d at 728. Chapa still held the burden to introduce evidence of his expectation of privacy.
In Chapa, we discussed the difference between judicial notice of an adjudicative fact and a legislative fact. Chapa, 729 S.W.2d at 728, n. 3. An adjudicative fact is a matter which must be proved. Judicial notice of an adjudicative fact must occur at trial and in accordance with Tex.R.Crim.Evid. 204. However, a legislative fact is one of social concern which assists an appellate court in interpreting the constitution. The expectation of privacy generally recognized by our society is a legislative fact and may be within the judicial knowledge. Id. However, in the instant ease, the reliability of an individual scientific test is an element which must be proved. Kelly, supra. Thus it is an adjudicative fact.
C.
Through the doctrine of judicial notice, the majority incorporates such evidence into the record as it deems necessary to satisfy the State’s burden for the admission of a “vitally contested bit of imperative proof.” Urban, *776387 S.W.2d at 398. The majority fails to cite and I can find no authority where this Court utilized judicial notice to satisfy a party’s burden of proof regarding the admissibility of evidence. Such action directly conflicts with Urban, 387 S.W.2d at 398, and Johnson, 269 S.W.2d at 394. The State has demonstrated no reason why an expert witness could not testify, and be cross-examined, on the reliability of HGN testing. Had the State done so, the record would be similar to that in Grice, and we would be justified in reviewing the scientific literature and cases from other jurisdictions to assist us in our decision. However, such is not the case and the State has wholly failed in its burden of proving by clear and convincing evidence that the underlying scientific theory behind HGN testing was valid and that the technique in applying the HGN test was valid as required by Kelly, 824 S.W.2d at 573. See, Part II, supra. Consequently the majority errs in resorting to judicial notice.
IY.
APPLICATION OF HGN TEST
Even if it were appropriate to take judicial notice of the validity of the underlying scientific theory and techniques employed in the HGN test, the record does not establish that Trevino properly applied the techniques in the instant ease. This is the third criteria of determining reliability. Kelly, 824 S.W.2d at 573. See, Part II, supra.
The majority took judicial notice of DWI Detection and Standardized Field Sobriety Testing (1992), published by NHTSA, Majority Op., 880 S.W.2d at 765-766, as the standards adopted to train Texas officers in the HGN testing. Id., 880 S.W.2d at 768. Reviewing that manual and Trevino’s actions in the instant case, the majority “eonclude[s] that the HGN technique, as prescribed by the United States Department of Transportation and the State of Texas, was followed by Officer Trevino in his examination of appellant.” Id., 880 S.W.2d at 768-769. I disagree.
The standards adopted by Texas for HGN testing include an assessment of possible medical impairment and checking the suspect’s pupil size. DWI Detection, at VIII-14. See, n. 2, supra. This is required because a nystagmus may be caused by brain tumors, brain damage, or some diseases of the inner ear. Id. at VIII-12. The manual cautions:
NOTE: Nystagmus may be due to causes other than alcohol. These other causes include seizure medications, phen-cyclidine inhalants, barbiturates and other depressants. A large disparity between the performance of the right and left eye may indicate brain damage.
Id., VIII-15. Further, the standards require that the officer note any condition which might impair the suspect’s ability to perform an HGN test. In addition to medical impairment, the manual lists other factors such as “wind, dust, etc. irritating suspect’s eyes,” or “numerous visual or other distractions impeding the test.” Id., at VIII-22.
In the instant case Trevino did not check the size of appellant’s pupils. Trevino testified that he did not recall whether appellant was bleeding but she did not complain of any injury. The extent of Trevino’s assessment for medical impairment was to ask appellant “if she was all right” on six or seven occasions. When questioned about the necessity of repeating the question, Trevino responded “[s]he had been involved in an accident, sir.” Trevino was not a medic and had no experience with persons who had suffered a concussion. Though the record clearly reveals that appellant had been involved in an automobile accident and appellant testified she hit her head in the accident, there is no evidence that Trevino attempted to screen for any of the factors which might impact on appellant’s performance on the HGN test.8 Therefore, *777Trevino did not properly apply the HGN testing procedures, Kelly, 824 S.W.2d at 573, and the majority errs in approving the application of HGN testing in the instant case.
V.
CONCLUSION
I agree that the time has come for the Court to determine the admissibility of the HGN test. And in a proper case I may join the majority in holding that HGN evidence is admissible as a circumstance indicating intoxication. However, such a determination should be made only after the parties have had the opportunity to present evidence both for and against HGN testing and the trial judge has had the opportunity to rule on the evidence. See, Kelly, supra.
With these comments, I respectfully dissent.
MILLER and OVERSTREET, JJ., join this opinion.. Appellant’s ground for review states:
The Court of Appeals erred in finding that the results of the horizontal gaze nystagmus test were admissible.
. The pupils of an individual with a head injury are frequently dilated and/or have different reactions to light. B. Bullock; Pathophysiology Adaptations and Alteration in Function, 3rd ed. 1988, pp. 1041-1043.
. All emphasis is supplied unless otherwise indicated.
. This in itself distinguishes Grice from the instant case. While in the instant case we are asked to determine the admissibility of novel scientific evidence, the admissibility of fingerprints as circumstantial evidence of guilt had “long been held ... admissible_” Grice, 151 S.W.2d at 222.
. We stated:
In view of the history given in the record before us of the development of the science of identification by fingerprints and the claim made that no two persons have identical ridge formations, and in view of the known progress made in this science following the development of methods for taking finger prints, for their classification and for general use now being made of this science by our government, as well as that of many other governments, we have thought it essential at this time to review the decisions of other courts of our nation, both state and federal, in order to determine the judicial recognition now given to this science and thereby form a definite and certain policy and rale for the recognition which this court shall give to it.
Grice, 151 S.W.2d at 217.
. We stated:
In the instant case the witness who testified in behalf of the state was ably cross examined by an attorney for appellant who showed himself to be well versed in the science and who has greatly assisted this court by making a thorough and intelligent record by the manner and efficiency of his examination....
Grice, 151 S.W.2d at 211.
. Were the majority's action today extended to Chapa, the defendant would have no burden to object to the admission of evidence seized through a warrantless search or to present evidence in support of a motion to suppress such evidence. These matters could be judicially noticed. Clearly this was not our intent in Chapa.
. The majority states:
None of the materials which we have consulted indicate that nystagmus may be caused by a minor head injury or concussion, such as the injury appellant asserts she received as a result of her collision. In any case, appellant apparently does not argue that her perfor-manee on the HGN test was affected by her asserted head injury.
Emerson, 880 S.W.2d at 768 n. 10. However, the State holds the burden to demonstrate that the techniques employed by Trevino are those which have been found reliable and adopted by Texas. Further, the reliability of HGN testing *777was not before the trial court and therefore appellant had no opportunity to demonstrate the effect of her injuries on her HGN performance. Through the doctrine of judicial notice, the majority precludes appellant from attacking the reliability of such testing.