We most often associate really long opinions with SCOTUS. But, they occasionally appear in the published opinions of Texas courts. The unpublished opinions of Texas courts have first become more widely available in the last 20-30 years. They are generally considered only to address more run-of-the-mill or settled issues, and thus might not be expected to be that long. Of course, as a rule, death-penalty appeals often involve more issues and thus longer opinions.
My curiosity was raised by this week's 127-page opinion in the Suniga case. Is that close to the record for the length of an unpublished opinion? What opinion holds that record? Considering this opinion was issued only 7 1/2 months after submission, maybe that is some sort of a record as well (although there was no hold up for dissents or concurrences). I recently tried to identify the unpublished opinion that involved the most points of error and found some in which more than 30 issues were already well-settled.
Not the longest by any means, but one that I found entertaining: Mark Ken Tafel v. State, 10-14-00019 and 20. Case was basically about a county commissioner who carried a concealed handgun to Commissioners Court. The sheriff told him not to, the county judge wrote a letter saying that he could, and when he did it again, the sheriff arrested him.
The opinion (affirming) is nothing special really, and only eight pages long. The dissent, however, is an impressive ninety pages, and well worth a read.
One reason for my curiosity about unpublished opinions lay in TRAP 77.3. That rule is very clear: "Unpublished opinions have no precedential value and must not be cited as authority by counsel or by a court." Little can be known for why any particular opinion is not published. That appears to be decided at the whim of any five of the judges on a case by case basis under TRAP 77.2.
But, being decided by the State's highest court, such opinions do inform legal research and thinking. Thus, on occasion Rule 77.3 is broken by citing an unpublished opinion in a brief or even a court opinion. See page 2 of Meza.
I have always been careful to suggest such an opinion is being cited for some reason other than "as authority" on those rare occasions I thought the citation should be included. Is even that acceptable practice? The Thirteenth Court seemed to think so. See footnote 3 in Scmude, p. 20. See also Damron, p. 10; Jackson, 474 S.W.3d at 757 and Allen, 249 S.W.3d at 699 n.18 (urging the CCA to undo its earlier decision about publication). Indeed, the CCA seems to have cited an earlier unpublished opinion as part of the basis for its decision in Holmes, 248 S.W.3d at 196.
Who should be enforcing Rule 77.3? I have not seen anyone being called out for skirting the rule. Maybe the rule should just be changed to read more like TRAP 47.7(a).
Wasn't Rule 77.3, which was adopted in 1997, designed in part to prevent litigants from citing unpublished as precedent because those opinions were hard to find in the pre-internet world? Given the ease of access to every opinion on the courts' websites, is the policy behind Rule 77.3 still relevant?
Policing Rule 77.3 falls primarily on two groups: the case's litigants and the appellate courts.
The only people who've seemed to make Rule 77.3 enforcement their cause celebre are pro se litigants. In my experience, most appellate judges/justices have simply ignored such complaints.
Martin's approach of offering a non-precedential justification is prudent and, in my experience, accepted (or at least tolerated) by the courts in which I've appeared. I've never heard an appellate justice complain as long as he or she has been able to find a copy of the original unpublished opinion to read for himself or herself.
We've probably all read at least one unpublished slip opinion for which we wish the designation would be changed to "publish." Is it possible to file an amicus motion to publish?
Should the CCA's Rules Advisory Committee recommend changes to Rule 77.3?
If unavailability (or unequal availability) was a motivating factor, then it has disappeared.
There are also some technical difficulties with the rule. Unpublished opinions are being issued in cases that presumably involved an important reason for granting review under TRAP 66.3 and in which there are dissenting opinions (which would suggest an unsettled state of the law). And they are not as uncommon as one might think. In the last 7 months, 6 PDR cases were decided by unpublished opinions.
The court routinely grants habeas relief through unpublished opinions (in cases which may be extremely fact-bound). Any change in Rule 77.3 should likely keep the current restriction in place for those cases. They often just approve the findings or reasoning of the trial court, without the thorough consideration necessary for the creation of useful precedent.
But anytime a decision by a court of appeals is being reversed, there is certainly an argument for publication. Then, there is also the interesting issue of published concurrences and dissents in these cases. This would seem to establish that Rule 77.2, and in turn 77.3, only apply to the majority (or perhaps even plurality) opinion in a case.
And, also, what exactly is the effect on a published COA opinion of an unpublished decision by the CCA? The subsequent history in those cases would certainly seem relevant to the precedential/authoritative value of the initial opinion (although the reason for the reversal supposedly has no precedential value). The COA obviously felt its opinion was a useful addition to the jurisprudence of the state in reaching a determination under TRAP 47.2(b).This message has been edited. Last edited by: Martin Peterson,
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