Has anyone figured out what Rule 47.7 is going to mean? It reads in part: Opinions not designated for publication by the court of appeals . . . have no precedential value but may be cited . . . ." What the heck does that mean?

It occurred to me that I must not know what "precedent" means so I looked it up: "An adjudged case or decision of a court, considered as furnishing an example or authority for an identical or similar case . . . ."

Do they mean that unpublished cases are not binding precedentor do they mean that there are nothing at all -- in which case, why are we even going down this road. My guess is that courts of appeals will only acknowledge unpublished cases if they help the opinion writer get where he wants to go -- much like courts of appeals already do with published opinions from other courts of appeals. Is this progress?

Just a stab, but it should mean: (1) no mistake of law based upon an unpublished opinion; (2)no error or ineffective assistance to fail to follow an unpublished opinion; (3) no discretionary review for conflicting unpublished opinions or a conflict between an unpublished opinion and a published one. That would make it persuasive authority, I guess. As far as I've been able to tell, "persuasive" has always meant the court can look at it, but gets to do whatever it wants.

See the proposed new rules at:
http://www.courtstuff.com/SCt/Advisory/Proposed%20TRAP%20Changes.html

[This message was edited by John Rolater on 08-12-02 at .]

What happened to the ability to appeal for a jurisdictional defect (formerly 25.2(b)(3)(A))?
I don't see that anywhere in the revised rules.

What great rule changes.

It looks like:

1) Defendant must get trial court to certify in writing that he can appeal anything (including a jurisdictional defect) other than a pretrial motion after getting sentenced pursuant to a plea agreement , thereby preventing the state from having to pay for a free record and then get the case dismissed;

2) The State got back the right to move for an extension of time to file an appellate brief;

3) The trial court can force the defendant to accept a recreated record, including an exhibit, if it has been lost or destroyed;

4) Unpublished opinions continue to have no precedential value, but can be cited for whatever purposes they might serve (e.g., persuasive authority).

The Court of Criminal Appeals should be congratulated for some excellent amendments. These changes are good for counties, prosecutors, and justice in general.

John Bradley
District Attorney
Williamson County, Texas

Do amendments to the rules have to represent progress? Is "progress" defined/determined in about the same way as "justice"? An opinion has persuasive value because it represents the determination of an issue by a supposedly impartial judge or judges, not just the advocate. Some judges are impressed with the non-binding determinations of other judges and some aren't. Certainly if a judge on your panel has already decided an issue (albeit in a memorandum dnp) it can't hurt to remind him of his prior thoughts. But you must be careful not to put words in his mouth (as the majority/dissenting opinions often do to each other).

I am most surprised to see that all cases decided under the prior rules are now available (after Jan. 1) for citation. This should cause some former judges to cringe or roll over in their graves. Plus, as I previously noted, this seems to give big law firms and metro prosecutor's offices a definite advantage (since so many of these opinions are known only to a relatively few persons in the legal community). Will some service now go back in time and try to disseminate some of these hidden "precedents"? And what about Lexis and West. Are they now going to seek out all 10,000+ opinions issued each year for inclusion in their databases, or will some new competitor arise? If some or all of these opinions become available at the official court websites, how long will they be maintained there? I also think I detect that any decision under the Fourth Amendment must not be a memorandum opinion, though it can still be a dnp opinion. Do published memorandum opinions enjoy invulnerability, since they supposedly espouse only "settled" principles? John R. has certainly identified some of the characteristics of non-precedential authority. If the courts want to ignore a published precedent in writing their opinion, they seem pretty much at ease in doing so. The new rule just retains their level of comfort for doing what they want to do. At least the SC and CCA recognized that most criminal cases will continue to deserve a "worthless" or waste of time designation.


[This message was edited by Martin Peterson on 08-12-02 at .]

Martin, easy there big fella. I don't think the "memoranda", etc., option includes opinions on criminal cases. I think the new rules only permit these special designations for opinions on civil cases.

For criminal cases, the courts will continue to designate them as published or unpublished. And advocates have simply been given the green light for bringing upublished criminal cases to the attention of the judges. That's not such a bad thing. I find it good to let a court know what it has done on a similar issue, even in an unpublished opinion.

As for Lexis and Westlaw, I know that Lexis has been including unpublished opinions on its database for some time. So, there isn't anything new there.

There is no excuse for a small office, or even sole practitioner for not having access to electronic databases. Whether it is Lexis, Westlaw, or some free deal (like through the State Bar website), there are plenty of easy ways to do a search.

[Note: I hereby disclose my bias for Lexis. As my publisher, they provide me with free access to Lexis. I have found it easy and accurate. But, they also provide the service to government lawyers for a mere $40/month. You can't beat that.]

John Bradley
District Attorney
Williamson County, Texas

No one has ever called me by that name before, but I'll take it as a compliment. Are we reading the same proposed Rule 47.2? Subsection (a) of my version starts with the language "civil and criminal cases" and (b) then says for criminal cases "in addition" . . . . And while both Lexis and Westlaw have a lot of unpublished opinions already in their database, many of the courts of appeals' opinions are entirely missing. I think what will happen is the editors will choose which dnp's are put into the system and will not worry about putting all opinions out for consumption. Then I guess one service will tout that it is more complete or appropriately limited than the other. I certainly agree that having additional source material may ultimately lead to better decisions. How can you argue more information is harmful? I still worry that judges will now have to spend more time writing dnp's and thus less time on the "real" opinions.

[This message was edited by Martin Peterson on 08-13-02 at .]

Actually, they can do memorandum opinions in criminal cases. TRAP 47.2(a). Criminal cases just get an extra layer of protection (?) from the publish/non-publish designation. I agree with Martin that the constitutional issues limitation on memorandum opinions is a big limit on those opinions.

Memorandum opinions have the potential to be more frustrating than current DNP's because they have nothing to cite, e.g. "we find the evidence sufficient" without saying what the evidence is.

As far as getting DNP's onto Lexis, our sales rep told me that they often get there because a party simply sends the opinion to Lexis and says it is interesting. I haven't tried to do that with one yet.

We are definitely entering a new era. All the opinions not designated for publication have just been given a reason to be published. I already have several opinions in my files which I believe answer legal issues not dealt with in any published opinions. Of course, almost all of them demonstrate only arguments which did not work. But erroneous thoughts have a way of repeating themselves. And some of them may simply have been ahead of their time. Anyway, I am glad to announce that they are going to form the basis for "Peterson's Unreversible Errors". I promise to make Fred Erisman proud. Your opponent can use them against you with the comment: "see how stupid that is, it didn't even merit a published opinion last time."

The federal courts may have seen the light and are following the state courts:

http://www.law.com/jsp/article.jsp?id=1036630450677

John Bradley
District Attorney
Williamson County, Texas