Texas Courts Split on 'Do Not

Publish' Designation

Mary Alice Robbins

Texas Lawyer

08-13-2002

Texas' two highest courts agreed to

disagree when it came to deciding whether

all appellate court opinions can be cited

as precedent in the future.

The "do not publish" designation is to be

discontinued and all opinions can be cited

in civil cases under rule changes that the

Texas Supreme Court ordered on Aug. 6.

But opinions by courts of appeals in

criminal cases will continue to bear the

notation "publish" or "do not publish."

Court of Criminal Appeals Presiding Judge

Sharon Keller says her discussions with

some justices on the courts of appeals

indicated they prefer not to publish some

opinions in criminal cases.

"I don't think anybody said criminal

opinions ought to be published," Keller

says.

Austin, Texas, criminal-defense attorney

David Schulman says unpublished

opinions are contrary to open

government.

"I think that now and again appellate

courts will use unpublished opinions when

they're doing something they don't want

to call attention to," Schulman says.

The Texas Supreme Court's order

provides for publication of the

amendments to Rule 47 of the Texas

Rules of Appellate Procedure -- as well as

other TRAP changes -- in the September

Texas Bar Journal. The amendments take

effect on Jan. 1, 2003, with any changes

made after a 60-day public comment

period.

Under revised Rule 47, previously

unpublished opinions in civil cases can be

cited but will have no precedential value.

Justice Nathan Hecht, rules liaison for the

Texas Supreme Court, says the key point

is being able to cite the opinions.

"Once you've cited, what precedent

something has is always an issue for the

later court," Hecht says.

Houston attorney Charles "Chip" Babcock,

chairman of the Texas Supreme Court's

advisory committee that proposed

changes in Rule 47 of the Texas Rules of

Appellate Procedure, says the court has

shown leadership in its decision to allow

citation of previously unpublished

opinions. He contends that when courts

forbid litigants from citing prior

unpublished opinions, their action

arguably is a content-based restriction on

speech justified only by judicial efficiency

and not by a compelling state interest.

"To say to a lawyer or any citizen that you

cannot talk to the court about a decision

that is pertinent to the citizen's business

before the court raises serious First

Amendment issues," says Babcock, a

partner in Dallas-based Jackson Walker.

No-citation rules have sparked controversy

in the federal system. Judge Jerry E.

Smith called the practice of denying

precedential status to unpublished

opinions "questionable" in a June 2001

dissent to a denial by the 5th U.S. Circuit

Court Appeals for en banc review in

Williams v. Dallas Area Rapid Transit. A 5th

Circuit panel granted governmental

immunity to DART in a 1999 unpublished

opinion in Anderson v. Dallas Area Transit.

Because the 1999 opinion was

unpublished, the panel in Williams was

free to disagree with the Anderson panel

and denied DART immunity.

"What is the hapless litigant or attorney,

or for that matter a federal district judge

or magistrate judge, to do?" Smith asked

in his dissent.

In August 2000, a panel of the 8th Circuit

in St. Louis held in Anastasoff v. United

States that its rule disallowing the court to

rely on unpublished opinions was

unconstitutional, but the opinion was

vacated on rehearing by the full court in

December 2000.

A panel of the 9th Circuit, in a September

2001 memorandum opinion, held in Hart

v. Massanari that it could limit citation to

unpublished opinions.

"Texas will be the leading jurisdiction on

this, no question," Babcock says. The

move to change Rule 47 comes as the

American College of Trial Lawyers

prepares to release a report addressing

the issue, says Babcock, an ACTL

member.

William T. "Bill" Hangley, chairman of the

ACTL Committee on Federal Rules of

Evidence, is the author of the report,

which recommends that all appellate

courts release their opinions for

publication. The report also calls for the

development of uniform rules for access

and use of unpublished opinions in the

federal system, and the elimination of

restrictions on citing opinions, says

Hangley, chairman of Hangley Aronchick

Segal & Pudlin in Philadelphia.

"The question is whether the appellate

courts are advancing or impeding justice

and the rights of litigants when they either

withhold opinions from the scrutiny of

most lawyers or forbid lawyers, in

advance, from citing the courts' own past

opinions for whatever persuasive value

those opinions may have in a present

case," Hangley said in the report.

Under amended Texas Rule 47, each

opinion in a civil or criminal case must be

designated "opinion" or "memorandum

opinion." If memorandum opinions are

written the way they should be written,

they won't be cited, Hecht says. A

memorandum opinion should state who

won, who lost and the basic reason for the

decision, he says.

The TRAP amendments also create a

requirement for appeals in criminal cases.

Under Rule 25.2, a defendant's notice of

appeal must be certified by the trial court.

Unless a notice is certified, the appeal will

not go forward.

Keller says the CCA amended the rule to

prevent defendants who have a right to

appeal from being trapped by technical

requirements of the rule and to prevent

those who don't have a right to appeal

from tying up appeals courts' resources.

When a defendant appeals under current

rules, Keller says, the appellate record

must be prepared regardless of whether

that individual has a right to appeal. The

appeal is dismissed if it's determined that

the individual didn't have a right to bring

it, she says.

"That's a big waste of resources and time

that could be spent somewhere else,"

Keller says.

Schulman says the rules change adds a

hurdle to state appeals that defendants

already face in the federal system, where

a certificate of appealability must be

obtained from the district court

(I'm including the full text of new Rule 47, for those interested-- LH)

RULE 47. OPINIONS, DISTRIBUTION, AND CITATION

47.1. Written Opinions. The court of appeals must hand down a written

opinion that is as brief as practicable but that addresses every issue

raised and necessary to final disposition of the appeal. Where the issues

are settled, the court should write a brief memorandum opinion no longer

than necessary to advise the parties of the court's decision and the basic

reasons for it.

47.2. Designating and Signing of Court Opinions; Participating Justices.

(a) Civil and Criminal Cases. Each opinion for the court must

be designated either an "Opinion" or a "Memorandum Opinion." A majority of

the justices who participate in considering the case must determine whether

the opinion will be signed by a justice or will be per curiam and whether it

will be designated an opinion or memorandum opinion. The names of the

participating justices must be noted on all written opinions or orders of

the court or a panel of the court.

(b) Criminal Cases. In addition, each opinion in a criminal

case must bear the notation "publish" or "do not publish," as determined -

before the opinion is handed down - by a majority of the justices who

participate in considering the case. Any party may move the appellate court

to change the notation, but the court of appeals must not change a notation

after the Court of Criminal Appeals has acted on any party's petition for

discretionary review or other request for relief. The Court of Criminal

Appeals may, at any time, order that a "do not publish" notation be changed

to "publish."

47.3. Publication Distribution of Opinions. All opinions of the courts of

appeals are open to the public and must be made available to public

reporting services, print or electronic.

(a) The Initial Decision. A majority of the justices who

participate in considering a case must determine - before the opinion is

handed down - whether the opinion meets the criteria stated in 47.4 for

publication. If those criteria are not met, the opinion will be distributed

only to the persons specified in Rule 48, but a copy may be furnished to any

person on request by that person.

(b) Notation on Opinions. A notation stating "publish" or "do

not publish" must be made on each opinion.

(c) Reconsideration of Decision on Whether to Publish. Any

party may move the appellate court to reconsider its decision regarding

publication of an opinion but the court of appeals must not order any

unpublished opinion to be published after the Supreme Court or Court of

Criminal Appeals has acted on any party's petition for review, petition for

discretionary review, or other request for relief.

(d) High-Court Order. The Supreme Court or the Court of

Criminal Appeals may, at any time, order a court of appeals' opinion

published.

47.4. Standards for Publication. Memorandum Opinions. If the issues are

settled, the court should write a brief memorandum opinion no longer than

necessary to advise the parties of the court's decision and the basic

reasons for it. An opinion may not be designated a memorandum opinion if

the author of a concurrence or dissent opposes that designation. An opinion

should be published only if must be designated a memorandum opinion unless

it does any of the following:

(a) establishes a new rule of law, alters or modifies an

existing rule, or applies an existing rule to a novel fact situation likely

to recur in future cases;

(b) involves a issues of constitutional law or other legal

issues of continuing public interest important to the jurisprudence of

Texas;

(c) criticizes existing law; or

(d) resolves an apparent conflict of authority.

47.5. Concurring and Dissenting Opinions. Only a justice who participated

in the decision of a case may file or join in an opinion concurring in or

dissenting from the judgment of the court of appeals. Any justice on the

court may file an opinion in connection with a denial of a hearing or

rehearing en banc. A concurring or dissenting opinion may be published if,

in the judgment of its author, it meets one of the criteria established in

47.4. If a concurrence or dissent is to be published, the majority opinion

must be published as well.

47.6. Action of Change in Designation by En Banc Court. Sitting en banc,

the court may modify or overrule a panel's decision regarding the signing or

publication of the panel's opinion or opinions. A court en banc may change

a panel's designation of an opinion.

47.7. Citation of Unpublished Opinions. Opinions not designated for

publication by the court of appeals under these or prior rules have no

precedential value and must not but may be cited as authority by counsel or

by a court with the notation, "(not designated for publication)."

Notes and Comments

Comment to 2002 change: The rule is substantively changed

to discontinue the use of the "do not publish" designation in civil cases,

to require that all opinions of the court of appeals be made available to

public reporting services, and to remove prospectively any prohibition

against the citation of opinions as authority in civil cases. The rule

favors the use of "memorandum opinions" designated as such except in

certain types of cases but does not change other requirements, such as those

in Pool v. Ford Motor Co., 715 S.W.2d 629, 635-636 (Tex. 1986). An opinion

previously designated "do not publish" has no precedential value but may be

cited. The citation must include the notation, "(not designated for

publication)."