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To Cite or Not to Cite: Do Unpublished Opinions Have Precedential Value?

Posted in Appellate Practice, Briefs

I recall discovering my first unpublished case as a law student when interning for an intermediate appellate court justice. Strangely, a legend accompanied the opinion disclaiming precedential value, which seemed odd considering that the opinion was written and accessible through my legal database. Around the same time, I encountered my first memorandum opinion with its own legend directing me to Texas Rule of Appellate Procedure 47.2 for designation and signing of opinions.

Until that point, I had assumed that all database accessible cases had precedential value. If the legend were not enough, a quick reference to TRAP 47 dispelled that notion. Now, I find that some experienced practitioners still feel that all unpublished civil opinions, including memorandum opinions, lack precedential value. This feeling is not unfounded because an older iteration of TRAP 47 maintained that unpublished opinions were not citable and lacked any precedential value.

Under the current rule, however, there is no such thing as an “unpublished” civil case and all civil opinions have precedential value. After January 1, 2003, a rule change mandated that Texas intermediate appellate courts must designate their opinions as either “opinions” or “memorandum opinions.” I think practitioners’ confusion lies in that memorandum opinions resemble “unpublished” opinions because they are accessible only through legal databases or the courts’ websites. After 2003, but before a 2008 rule amendment, the confusion was reinforced by some judicial precedent that equated the new memorandum opinions with the older unpublished opinions when it came to precedential value. Albeit in the equivalent of fine print, the 2008 amendment tried to remedy the confusion by explicitly stating in the comments section that “[a]ll opinions and memorandum opinions in civil cases issued after the 2003 amendment have precedential value.”

While it is true that pre-2003 unpublished opinions still lack precedential value under current TRAP 47.7(b), the rule now allows that those opinions may be cited with the notation “(not designated for publication).” This means that practitioners may (and should) cite these unpublished cases as persuasive authority.

So, as a quick rule of thumb, any intermediate appellate court decision issued after January 1, 2003 possesses precedential force. And, any opinion designated “do not publish” issued before January 1, 2003 does not, but still may be cited as persuasive authority if it is accompanied by the notation “(not designated for publication).”

Publisher’s Note: The preceding is Maitreya Tomlinson‘s first post on this blog. Please join me in welcoming Maitreya to the blogosphere!

  • Brandy Manning

    I like your analysis. I would add that even before 2003, while unpublished opinions officially had no precedential value, I found that courts were often interested in how their sister courts had handled similar situations, even if the opinion was unpublished. In fact, I recall a fairly lengthy discussion of an unpublished opinion in an argument – granted, the opinion was awfully meaty for an unpublished opinion and likely should have been published. But the court, while not bound or even “officially” persuaded by the unpublished opinion, wanted to know how and why another court reached its decision, whether it chose to publish it.

  • Nancy Kessling

    I have to agree with Brandy’s response, adding only that the decision to stamp “do not publish” on a ruling had always perplexed me. Doesn’t it advance our understanding of judicial process when one court can study the reasons that another court reached a particular decision? Whether published or unpublished every court’s decision is specific to the facts of each case – and the question of relevance or precedential value is likewise specific. Thank you Maitreya for opening a discussion on this very important subject.

  • Neil McCabe

    So if a case was marked “Do not publish,” and it was issued before 2003, can a later opinion rightly be said to be in conflict with it, for purposes of invoking the jurisdiction of the Texas Supreme Court?

    • http://www.appealsplus.com/ D. Todd Smith

      That’s an interesting question, Neil. My gut reaction is that merely persuasive authority couldn’t create a jurisdictional conflict, but Texas Government Code § 22.001(c) arguably supports the opposite view, as it merely requires that one appellate court “holds differently from a prior decision of another court of appeals or of the supreme court on a question of law material to a decision of the case.” Unpublished opinions still have holdings, whether persuasive or binding. I’d be interested to know whether any cases address this issue.

  • Neil McCabe

    Thanks, Todd. I have a case, Christus v. Carswell, in which the Supreme Court has requested briefing on the merits and in which the issue presents itself. It should not reach the jurisdictional issue, however, because it has jurisdiction due to a dissent to denial of rehearing en banc. If the Supreme Court reaches the merits, part of the argument will be about whether the dissent correctly read the pre-2003 unpublished opinion on which it relied and whether it conflicts with the majority opinion.

  • Michael Jung

    Let me add that, IMHO, appellate judges do a very bad job of applying the publication criteria (or criteria for designating an opinion as a memorandum opinion). I can’t count the number of times where, after exhaustive research, I have determined that the only case in the US (or in TX) on a particular point is an unpublished or memorandum opinion.

    • Lyndon Bittle

      I agree, Michael. A “nonprecedential” holding is an oxymoron in a common law system.

  • Dylan O. Drummond

    Per TRAP 47.7(b), unpublished pre-1/1/03 ops stamped “Do Not Publish” “have no precedential value.” That said, ANYTHING can be persuasive to some courts.

    But I still think it would be difficult to bootstrap conflicts jurisdiction or conjure a matter of statewide importance with only nonbinding, persuasive authority.

    Nice dissenting & concurring writings fleshing out this topic in Collins v. Ison-Newsome, 73 S.W.3d 178 (Tex. 2001). But there, the Court ultimately held that, “[i]f a case has no precedential value,” it “cannot be the basis for conflict jurisdiction.” Id. at 183. But CJH lists 4 good reasons in his dissent why this should not be the case.

    • Lyndon Bittle

      As counsel for petitioners in the Collins case, I think it represents the nadir of jurisprudence on conflicts jurisdiction. (Not that I carry a grudge.) That case turned on the meaning of an immunity provision in the Texas Education Code, which affects school personnel across the State and had been applied differently by appellate courts in three judicial districts. After requesting briefs on the merits and hearing oral argument, the Supreme Court decided it lacked jurisdiction because the conflicting courts had chosen to designate their holdings “unpublished.” The rule changed shortly after that case, but to my knowledge the Court has not reconsidered the holding based on a conflict with with a pre-2003 decision.