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To cite or not to cite — that is the question. But so far, Texas’ two highest civil and criminal courts have not come up with an answer. Rule 47 of the Texas Rules of Appellate Procedure prohibits the citation of unpublished opinions issued by the courts of appeals. After wrestling with the issue for almost a year, the Texas Supreme Court Rules Advisory Committee on June 15 voted to recommend that the rule be changed. Charles “Chip” Babcock, chairman of the rules committee and a partner in Jackson Walker, says it’s time for the courts to act. “It’s just unconscionable to me that they would want the status quo,” Babcock says. The Office of Court Administration reports that 10,504 of the 12,688 opinions issued by the mid-level appellate courts in fiscal year 2001 were unpublished. The 5th Court of Appeals in Dallas published only 97 of its 2,011 opinions, the OCA report shows. NO HESITATION Texas Supreme Court Justice Nathan Hecht, the court’s liaison for rules, says the proposal to make all opinions written by Texas courts available for citation is one of several rule changes he expects the supreme court to consider before Christmas. “There really hasn’t been any hesitation to take it up,” Hecht says. “We’re just waiting for people to get set in their thinking.” Texas Supreme Court Chief Justice Tom Phillips says he is undecided about the proposal, however. “It is very frustrating to a party to have authority that they find persuasive that a court won’t consider,” Phillips says. But he says that having all opinions available for citation will make it “more expensive for lawyers to research the law exhaustively and prepare comprehensive briefs.” Phillips also says judges like unpublished opinions because they can explain to the parties in a case why they won or lost without worrying about an opinion that is not well written being in the public realm. “If a case is never going to be cited, you can treat it with a different level of care than if it is citable,” he says. Bill Dorsaneo, a professor at Southern Methodist University Dedman School of Law, says most opinions designated not for publication are available in electronic form. “The idea that unpublished opinions are not generally available is an idea that is weakening,” says Dorsaneo, who chaired the subcommittee that drafted the proposed rule. The Court of Criminal Appeals hasn’t received a copy of the proposal but has discussed it informally, says Presiding Judge Sharon Keller. “There’s some hesitation to adopting that rule for criminal cases,” she says, noting that far more opinions are written in criminal cases than in civil ones. Judge Paul Womack, the CCA’s liaison for rules, says the court is just waiting to see the rule suggested by the advisory committee and hasn’t taken even a “preliminary position” on it. Austin criminal defense lawyer David Schulman says the rules pertaining to publishing opinions should be the same for civil and criminal courts and that all opinions should be published. “I believe that the courts do not use unpublished opinions merely to save paper when the opinion is not important,” Schulman says. “I believe they often use [unpublished opinions] to hide politically sensitive opinions.” Stanley Schneider, another criminal defense lawyer and a shareholder in Houston’s Schneider & McKinney, says he has had convictions reversed with unpublished opinions. “Judges are political animals,” Schneider says. “If you have an unpublished opinion, nobody knows about it.” Schneider says it’s beneficial to have those opinions unpublished. “If I get a reversal, I don’t want it published. Maybe the Court of Criminal Appeals won’t take the case, and my client will get his relief,” he says. A similar debate on unpublished opinions is going on in the federal courts. In August 2000, the 8th U.S. Circuit Court of Appeals held in Anastasoff v. USA that its rule prohibiting unpublished opinions from being cited as precedent is unconstitutional. Judge Jerry Smith of the 5th U.S. Circuit Court of Appeals expressed a similar view in his June 2001 dissenting opinion on the court’s denial of an en banc hearing in Williams v. Dallas Area Rapid Transit. Noting in the opinion that the law is supposed to inform potential litigants, Smith questioned, “How can this circuit’s decisions do so if they carry no predictive effect?” A contrary view was expressed by 9th U.S. Circuit Court of Appeals Judges Alex Kozinski and Stephen Reinhardt in “Please don’t cite this!” Published in the June 2000 California Lawyer, the article said that treating opinions in routine cases as the equals of cases that have greater significance would force judges to write full and detailed opinions in every appeal. The proposal for the Texas courts allows memorandum opinions to be issued in cases that are not important to the state’s jurisprudence.

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