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We know unpublished opinions from the intermediate courts, although having no precedential value, can be cited with notation (not designated for publication). See TEX. R. APP. P. 47.7. Is it an anomaly that we cannot even cite unpublished opinions issued by the Court of Criminal Appeals? See TEX. R. APP. P. 77.3.
Posts: 532 | Location: McKinney, Tx | Registered: June 22, 2001Reply With QuoteReport This Post
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The fact that 77.3 expresses a different policy from 47.7 sure seems illogical, but apparently derives from the fact that the State Bar Appellate Section (dominated by the civil side of the bar) put forth the initial proposals concerning publication and citation of opinions. These were then discussed and modified by the SCAC (another group of largely civil lawyers) before being adopted by the two high courts. Apparently no one ever even suggested a change to Rule 77.3 (perhaps because there are no unpublished opinions by the Supreme Court). Or, in any event, the CCA quickly determined it did not want to engage in the additional work supposedly required to produce an opinion worthy of precedential value in those cases it considered unworthy of publication under Rule 77.2. One will quickly note that the rules also contain no guidelines for the court's determination under 77.2 (such as those in 47.4). While you might assume that even an unpublished opinion from the high court should carry more weight as a precedent than one from an intermediate court, 47.7 carefully reminds us that neither has any weight. I like the idea of merely citing (1) the judgment in the case (which does not seem to be prohibited) and, of course, (2)any "real" precedents that might be mentioned in the unpublished opinion. I think this is essentially the use being made of the criminal DNP's by the Courts of Appeal.
Posts: 2391 | Registered: February 07, 2001Reply With QuoteReport This Post
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