In my opinion, there is little doubt that many opinions that would qualify as dealing with issues that are not “settled” are nevertheless (and almost routinely) designated as memorandum opinions under Tex. R. App. P. 47.4. This is certainly error whenever the opinion “establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases.”

Although an opinion doing one of those things should almost always be designated for publication, unfortunately this is not required. Tex. R. App. P. 47.2(b). And thus courts appear prone to assign the designation “do not publish” to the vast majority of their opinions in criminal cases, essentially expressing doubt about their own reasoning despite their obligation to find and declare the applicable law. Hence, in a technical sense, the issue remains as undecided on the scorecard and the opinion is excluded from the jurisprudence of the state without any valid reason.

The decision in Davis v. State, No. 06-19-00169-CR (Tex. App.—Texarkana Apr. 6, 2020), aff’d on rehearing (July 8, 2020) exemplifies my point. It is potentially a very important decision because it holds that a reasonable hypothesis—that Davis was released from supervision on parole prior to the date his period of parole would have ended on August 12, 2013—should have been excluded by the State’s proof (because the jury’s conclusion that Davis’s possession of a firearm on February 24, 2018 was illegal was otherwise based only on speculation).

It seems almost certain, however, that the Court of Criminal Appeals will find under Tex. R. App. P. 66.3(c), (d) that this decision decides a question that conflicts with numerous of its previous decisions on review of the sufficiency of the evidence. It might also find that the meanings of Tex. Penal Code §46.04(a)(1) and Tex. Gov’t Code §§ 508.155(a), 508.1555 were misconstrued by the Texarkana court (see footnote 4). While the Sixth Court perhaps chose for this very reason not to grant any precedential value to its work, it will not really be saved from any embarrassment when Davis’s acquittal is set aside in Austin (or the decision is otherwise cast aside in the future).

Rules 47.4 and 47.2 serve good purposes, but they must not be given a wooden application. Of interest, the Sixth Court publishes a rather higher percentage of its opinions than some other courts. But it compounded its mistake in Davis by adding “do not publish.”

The decision in Davis now presents another interesting legal issue. Today is the deadline for the state to file a PDR (which does not seem to have occurred so far). Of course, the deadline might still be extended by virtue of a motion filed under TRAP 68.2(c) on or before Aug. 24. The state did not choose to file any further motion for rehearing under TRAP 49.5(c) either.

But, the Clerk of the Court of Appeals issued a mandate on July 13. This appears to have been premature, as the time for the state to file a PDR had not expired. See TRAP 18.1(a)(1), 68.2(a). Even so, some questions arise. Has Davis now been released from custody in accord with TRAP 51.2(d) and, if so, what will happen? There is also the implication in TRAP 67.2 (which speaks of delaying issuance of a mandate in order to give the CCA "enough time to decide" whether to grant review) that maybe the CCA will have lost jurisdiction to review the COA decision. While one supposes the mandate of July 13 might be subject to recall under TRAP 18.7, what procedure will be used to place Davis back under his sentence?

In any event, if the opinion in this case gets cited in the future, be sure to keep in mind the probable validity of the two arguments that were raised in the State's Motion for Rehearing (see attached).

Davis_MFR.docx (12 Kb, 0 downloads) Arguments

Another example of a case that qualified for publication: Owens. Effectively, the court is overruling its prior decision in O'Rarden. But has that actually occurred when the "not designated" label is used? A technical point, but there is no doubt that an existing rule has been altered or modified.

Undoubtedly, TRAP 47.2(b) allows for the publishing of, or grant of precedential value to, memorandum opinions. E.g., Rios, 626 S.W.3d 408. But how does a declaration that an opinion does none of the things specified in TRAP 47.4 square with the decision to publish? To me, such decision means that there are no real criteria (stated in the rules) for the decision to publish (or not). Is the subliminal intent to tell the CCA "don't be fooled by any claims of conflicting authority or jurisprudential importance," because we have found none. The real problem lies in the term "settled." Fortunately, as in Rios, the CCA often enough grants review despite the "settled" label.

The very length and complexity of many memorandum opinions belies their label, but that is inordinately true when they are designated for publication. One wonders why neither Justice Goldstein or Chief Justice Burns opted to oppose the "memorandum" designation in the Rios case.