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2002 marked a newsworthy year in appellate practice, as appellate judicial appointments and election results dominated the headlines. The most far-reaching development, however, may arise from the revision of a common procedural rule, Texas Rule of Appellate Procedure 47. This rule eliminates the issuance of unpublished opinions in civil cases and allows parties to cite (as persuasive, but not as precedent) previously issued unpublished opinions. The Texas Court of Criminal Appeals has elected to maintain the status quo. For many years, Rule 47 and its predecessors allowed appellate courts to issue “unpublished” opinions. However, the rule barred litigants from citing unpublished opinions, despite their wide availability on Westlaw, Lexis and similar services. As a result of amendments approved by the Texas Supreme Court this year (that go into effect on Jan. 1, 2003), Rule 47 has undergone a facelift. There no longer will be “unpublished opinions.” All opinions will be designated either “opinion” or “memorandum opinion.” And the prohibition against citing previously issued unpublished opinions has been lifted, although they will continue to lack precedential effect. Citations to “unpublished’ opinions previously issued must include the notation “not designated for publication.” Practitioners should visit the Texas Supreme Court Web site, www.supreme.courts.state.tx.us, for the text of the amended rule. There are good reasons to worry about the economic costs of the rule change, unless you are the publisher of case law. During the 2001 court year, Texas courts of appeals issued 12,691 opinions, but only 2,187 were published in the Southwest Reporter. These published decisions fill most of Volumes 34 through 85 of Texas Cases, S.W.3d. In civil cases, there were about 900 published (and more than 4,000 unpublished) opinions over that period. The rule amendment conceivably could result in more than 150 volumes of Texas Cases every year – an economic boon for West Publishing, but a serious problem for firm budgets. This worst-case scenario probably won’t materialize, however, because of an additional rule change. The new version of Rule 47 also encourages courts of appeals to issue shorter memorandum opinions in cases that previously generated unpublished opinions. Rather than addressing every issue necessary in deciding the appeal, memorandum opinions will be “no longer than necessary to advise the parties of the court’s decision and the basic reasons for it.” Of course, the new memorandum opinion rule creates concerns about the depth and quality of future appellate review. In coming years, major social forces – continuing population growth, burgeoning appellate dockets and state budget deficits – likely will increase the pressure on appellate courts to spend less time on civil cases. Will the temptation to dispose of cases in a paragraph or two interfere with the traditional role of the Texas intermediate appellate courts, i.e., the impartial administration of justice through careful review and the correction of harmful error? Additional provisions of amended Rule 47 were drafted to alleviate these concerns. A single dissenting or concurring justice, or the appellate court sitting en banc, will have the power to veto the memorandum opinion designation. The 14 Texas courts of appeals undoubtedly will implement Rule 47 in different ways, and those differences may require resolution by the Texas Supreme Court. The amended rule, and its judicial interpretation, well may change the face of Texas jurisprudence in every civil practice area. Scott D. Marrs and Jeffery T. Nobles are partners in the Houston office of Beirne, Maynard & Parsons.

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