When citing a civil case in which the opinion was designated as a "memorandum opinion" after 01/01/03 one must, of course, not reference the Southwestern Reporter (since presumably the case will never appear therein), but must add at the end of the cite either "(memo op.)" or "(memorandum op.)", so that the court will be sure to know the case lacks normal precedential value. Memorandum criminal opinions, however, appear in the Southwestern Reporter (albeit sometimes years after the fact). Do you regularly point out the memo character in the citation of those cases?

The courts appear to have much more frequently used the "memorandum" designation in criminal cases after the change in the rules- very often in cases in which the issues obviously are not "settled" and even when there is a dissenting opinion. Why are they doing that? If a memorandum opinion in a criminal case is somehow truly different in terms of precedential value, shouldn't its status be noted in the citation? Does anyone disagree with my earlier conclusion that theoretically a memorandum opinion should be considered an even stronger precedent since the court said the issues no longer have any importance to the jurisprudence of the state?

I guess I disagree with a couple of your premises. First, I don't believe that a civil memorandum opinion in has any less precedential value than a non-memorandum op. Opinions are supposed to be memorandum op.'s unless they meet TRAP 47.4's requirements. The practice seems to be in civil cases that the memorandum designation keeps the case out of Southwest Third. Other than that general rule I think the designation has zero significance. (I can't think of anything in the rules that would suggest otherwise.)
In criminal cases, the memorandum designation seems to almost demand a "do not publish" designation. A "do not publish" listing gives the case "no precedential value," TRAP 47.7 -- whatever that is supposed to mean. It obviously has some persuasive precedential value.
I can't think of any time I've cited a memorandum opinion in a criminal case without adding (memorandum op.) (not designated for publication).

The "Green Book" suggests citing cases designated as memorandum opinions as follows:

Chapin v. Zeve, 40 S.W.3d 551 (Tex. App.---Austin 2004, no pet. h.) (mem. op.).

See Rule 5.1.1. in Texas Rules of Form (10th ed. 2003).

Strange that they didn't use a real case. There must be a few memorandum op's that are actually in Southwest Third.

David, there are many criminal cases which have been designated as memorandum opinions, yet were designated for publication and thus have full precedential value and appear in the Southwestern Reporter. My question is whether the fact that the court designated them as memorandum opinions needs be noted in the citation. For example, does Bryant v. State, 135 S.W.3d 130 (Tex.App.- Waco 2004, pet. filed) need to have "(memo op.)" at the end.

Those criminal opinions not designated for publication (whether memorandum or not) will generally not be cited (though they now can be) and if they are cited must at least be shown with the warning "(not designated for publication)" to comply with Rule 47.7. To my knowledge, many of these cases do not even appear on Lexis or Westlaw.

I certainly agree that post-2002 memorandum civil opinions supposedly carry equal weight with their "non-memo" counterparts (though I suppose Rule 47.4 exists for some purpose in that regard) and would not hesitate to cite one, though the "memo" designation seems to mean something like second-class citizen and West has not chosen to include them in the state's printed jurisprudence. It was for that reason I referred to "normal" precedential value above.

[This message was edited by Martin Peterson on 07-20-04 at .]

Andy, so far the courts themselves do not seem to be following the Green Book format, so I guess the most accepted one is still up for grabs. See e.g. J.M. Davidson, Inc., 128 S.W.3d at 227 citing High Valley Homes, Inc. v. Fudge; Warner, 2004 WL 1048337 (Tex. 2004) citing Scott v. Johnson in fn. 3; Penley, 2004 WL 1119361 (Tex.App.- Fort Worth 2004) citing In re M.D.H.; A.J.L., 2004 WL 912650 (Tex.App.- Fort Worth 2004) citing In re G.B.; De la Garza, 2004 WL 296972 (Tex.App.- Corpus Christi 2004) citing Padrino Maritime, Inc. v. Rizo (as though it were going to appear in S.W.3d). And, sure enough that prediction came to pass, see 130 S.W.3d 243.

In fact, it appears several (14 at this time) civil memorandum opinions are going to be selected for inclusion in the S.W. reporter. See e.g., 131 S.W.3d 1; 131 S.W.3d 698; 132 S.W.3d 467; 132 S.W.3d 539. I guess only the West editors know which ones and on what basis they are chosen. Interestingly, in one case, an opinion was withdrawn from the bound volume because the editor said it had not been intended by the court for "printed publication".

That the courts seem to view civil memo opinions differently is perhaps reflected in Moore, Landry, L.L.P., 126 S.W.3d at 542 where the court specially noted that Vaughn v. Sawyer was a memorandum opinion and then went so far as to say it was not designated for publication (which of course was untrue). Maybe the decision of West as to the merit of the case will carry some weight.

[This message was edited by Martin Peterson on 07-19-04 at .]

[This message was edited by Martin Peterson on 08-08-04 at .]

Well, after further review, I should have stated some courts are following the Green Book suggestion (at least some of the time). E.g., Brice, 135 S.W.3d at 162 (Gray, C.J. dissenting) citing In re A.F. and other cases; Martinez, 131 S.W.3d at 32 (Tex.App.- San Antonio 2003); Zapata, 129 S.W.3d at 779 (Tex.App.- Fort Worth 2004); Hernandez, 129 S.W.3d at 211 fn. 2 (Tex.App.- Houston [1st Dist.] 2003). But the Supreme Court presumably sets the standard?

Well, without doing any research, I would guess that the Texas Supreme Court issues few "memorandum" opinions. And I do not recall the Texas Court of Criminal Appeals issuing any published memorandum opinions in the last year.(I'm sure John Bradley or Matthew Paul will correct me if I'm wrong ;->) Besides, most citations in the CCA's opinions are, with good reason, to that Court's own precedents, which leaves the Court few opportunities to cite unpublished memorandum opinions by the intermediate courts.

I doubt whether all 16 Texas appellate courts have fully considered whether to include the "(mem. op.)" moniker when it might otherwise be required by rule 5.1.1. Citation forms, while generally uniform, are often tweeked to an individual justice's taste. (Don't believe me? Next time you receive a 20+ page opinion from an appellate court, compare it with the full version later in Southwestern reporter: you'll invariably see changes in citation forms that were made by West Publishing once the opinion was submitted for publication as part of its efforts to comply with exact Bluebook forms.)

It has been my experience that Texas appellate courts generally try to abide by the Bluebook and Greenbook rules when feasible. As an appellate prosecutor, I tried to make my briefs as reader-friendly as possible. That included giving a full petition history and disclosing the fact that a case was either unpublished or designated as memorandum.

In the end, however, the most important thing is to develop a coherent, readible style of writing that is complemented by clear, consistent citation. I think Justice Fitzgerald on the Dallas Court of Appeals has spoken repeatedly on emphasizing the clarity of one's content rather than focus on exactitude in citation at the expense of good writing.

So whose lead should you follow for knowing how to cite something? A few options: 1) Do nothing until the Tx. S.Ct. & CCA to hold a joint "State of the Citation" press conference to resolve this issue, 2) replicate your favorite appellate justice (imitation is the best form of flattery), or 3) comply the Bluebook and Greenbook rules in accordance with your personal style.

Andy

p.s.: All sarcasm is meant to be in good humor. All opinions expressed are those of the author and not of those of any particular elected official.

Probably it makes no difference how the memorandum status is noted. I would think so long as the chosen method is not ambiguous it will be fine. The only issue is whether same should be noted at all, and why or why not. I think I am going to show that status whenever a case like Bryant is cited, but I will still wonder exactly why I do it that way and more importantly why the courts are misidentifying their opinions as memorandum (if that designation really means nothing) since all opinions should be as brief as possible and need address only those issues necessary to the decision.