Unpublished No More? All Texas Cases May Soon Be Citable

Mary Alice Robbins
Texas Lawyer

The body of law from which lawyers can cite precedent would increase significantly if the Texas Supreme Court adopts a recommendation made by its rules advisory committee that would eliminate unpublished opinions.

While all opinions of the state supreme court and Court of Criminal Appeals are available to the public, some opinions issued by the state's 14 intermediate appellate courts are kept under wraps. Rule 47 of the Texas Rules of Appellate Procedure prohibits lawyers from citing as authority unpublished opinions from the courts of appeals, even though some of the courts make all of their opinions available to the public through Internet publishing services.

That leaves a huge number of opinions beyond lawyers' reach in Texas.

Chris Griesel, the Supreme Court's rules attorney, reports that 21,596 opinions -— almost 84 percent of the 25,655 opinions issued by the appeals courts in the last two fiscal years -- fell into the "do not publish" category.

To many in the legal community, Rule 47 just doesn't make sense. "It's become a big issue having cases available that you can't cite," Texas Supreme Court Chief Justice Tom Phillips says.

"There are some times when you research an issue and there just won't be anything [in published opinions] on it," notes Charles "Chip" Babcock, chairman of the court's rules advisory panel and a partner in Jackson Walker in Houston.

If a lawyer comes up with an unpublished opinion that appears to be well-reasoned and deals with the same issue as his case, the lawyer should be able to cite it, Babcock says. "Under the current state of the law, you can't do that," he says.

"The growing question has been, why can't I cite these opinions," says state supreme court Justice Nathan Hecht, the court's liaison for rules. Earlier this year, the same question bothered the 8th U.S. Circuit Court of Appeals in St. Louis, Mo. On April 22, the federal appeals court held in Faye Anastasoff v. USA that its own rule prohibiting unpublished opinions from being cited as precedent is unconstitutional.

Babcock says the 8th Circuit's ruling makes a strong argument to do the same thing in Texas.

Hecht says the federal ruling isn't the reason the issue has been raised in Texas. "I put it on the agenda last fall," he says. "It was just getting to be a problem I thought."

The committee voted on Oct. 20 to recommend that the Texas Supreme Court make a change in the rule.

Griesel says the recommendation is to make all opinions written by Texas courts available. "If it's written by a Texas court, it's public, and you should be able to bring it to any other Texas court's attention," he says.

The original reason for Rule 47, Hecht says, was to prevent people who have the resources to find unpublished opinions from having an advantage over those who lack resources.

Phillips says the proposed change in the rule probably became inevitable when the courts went to computer reporting of cases.

Hecht says the committee did not think it makes sense to talk in terms of published and unpublished opinions and unanimously recommended that the courts of appeals be required to make available to the public all the opinions that they write.

"I think it will help to work out a lot of the wrinkles that develop in areas of the law," Hecht says. "It will make available to more lawyers more of the writings of the courts of appeals, and I think that is a good thing."

However, the appeals courts still will have a way to signal their belief that an opinion isn't important to the state's jurisprudence. Under the rule recommended by the committee, a court could issue a memorandum opinion when a case is settled.

Courts' memorandum opinions will be public and available for lawyers to cite as well, Griesel says.

Hecht says one reason judges issue unpublished opinions is because they don't view the issues addressed as relevant to other cases but that situations can change.

"What doesn't look so important today may be important tomorrow," Hecht says.

Phillips says judges also like to be able to "write sloppy" without having to worry that every opinion is going to be cited. He says a court can issue a memorandum opinion without having to worry about an inadvertent slip.

"If everything has to be published, those of us not using memorandum opinions will have to take a closer look at their use," Phillips says.

Hecht says he thinks the Supreme Court will follow the committee's recommendation regarding Rule 47. But an effort to change the rule failed in 1990.

"The committee recommended that the court change it, and the court said, 'No,' " Hecht says.

The court is expected to take up Rule 47 along with a package of other proposed rules changes later this year or in early 2001, he says.

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Last revision: March 11, 2007 06:32 AM
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