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To Cite or Not to Cite: Do Unpublished Opinions Have Precedential Value?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I recall discovering my first unpublished case as a law student when interning for an intermediate appellate court justice.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 Now, I find that some experienced practitioners still feel that all unpublished civil opinions, including memorandum opinions, lack precedential value. This feeling is not unfounded because an older iteration of TRAP 47 maintained that unpublished opinions were not citable and lacked any precedential value.

Under the current rule, however, there is no such thing as an “unpublished” civil case and all civil opinions have precedential value.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 I think practitioners’ confusion lies in that memorandum opinions resemble “unpublished” opinions because they are accessible only through legal databases or the courts’ websites.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the confusion was reinforced by some judicial precedent that equated the new memorandum opinions with the older unpublished opinions when it came to precedential value.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While it is true that pre-2003 unpublished opinions still lack precedential value under current TRAP 47.7(b), the rule now allows that those opinions may be cited with the notation “(not designated for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 This means that practitioners may (and should) cite these unpublished cases as persuasive authority.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?