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Unpublished appellate court opinions will become a thing of the past if the Texas Supreme Court adopts a recommendation made by its rules advisory committee. The committee voted unanimously on June 15 to recommend to the court that Rule 47 of the Texas Rules of Appellate Procedure be changed to eliminate the “do not publish” designation. Under the rule, unpublished opinions of the state’s 14 intermediate appellate courts can’t be cited as precedent. “There is a huge frustration in the [State] Bar [of Texas] about the existing rule,” says Charles “Chip” Babcock, the committee’s chairman and a partner in the Houston office of Jackson Walker. The proposed rule is “a complete sea change,” says Chris Griesel, the Supreme Court’s rules attorney. “It says everything is going to be published, and everything can be published.” Supreme Court Justice Nathan Hecht, the court’s liaison for rules, says the proposed rule will have a profound impact on the courts, which currently can write some opinions quickly without having to worry that their words will be quoted back to them in later cases. “It’s no secret that courts don’t work as hard on opinions that can’t be cited,” Hecht says. The “trade-off” for the already overburdened appeals courts, Hecht says, is the rule allows them to use memorandum opinions. Such opinions would be shorter than other opinions but still could be cited, he says. Griesel says Texas courts weren’t following unpublished opinions even before the Texas Rules of Appellate Procedure came out in the mid-1980s. In 1892, the Supreme Court declined in Cooper v. City of Dallas to follow an unpublished 1884 opinion of the commission of appeals because it didn’t have access to the case, he says. “You have a whole underground reservoir of unpublished opinions,” Griesel says. ONLINE OPINIONS In the year that ended Aug. 31, 1999, the courts of appeals disposed of 12,787 cases, but only 2,092 of those cases — about 16 percent — had published opinions, he says. The proposed rule makes it clear that future opinions could be cited. The biggest problem for the advisory committee, Griesel says, was how to handle all the unpublished opinions issued in the past. Griesel says a compromise proposed by the committee provides that an opinion designated not for publication by an appellate court under prior rules would have no value as precedent but could be cited. “This allows the courts, when they examine and look at opinions, to make a determination [of] what worth they want to assign to the opinion,” he says. “But they’re not bound by it [the unpublished opinion],” notes Babcock. The 5th U.S. Circuit Court of Appeals is wrestling with the same issue. In a June 26 dissent to a denial for en banc review in Williams v. Dallas Area Rapid Transit, Circuit Judge Jerry E. Smith expressed his frustration with the full court’s unwillingness to change the “questionable practice of denying precedential status to unpublished opinions.” In a previous unpublished opinion in 1999′s Anderson v. Dallas Area Rapid Transit, the 5th Circuit granted governmental immunity to DART, yet the court reached a different conclusion in Williams. “What is the hapless litigant or attorney, or for that matter a federal district judge or magistrate judge, to do?” Smith questioned in his dissent. “The law is supposed to inform the choices of potential litigants. How can this circuit’s decisions do so, if they carry no predictive effect?” Hecht says civil attorneys have complained about being unable to cite unpublished opinions, but he’s unsure whether attorneys who practice criminal law see a need for a change in the rule. He says there could be one rule for civil cases and a different rule for criminal cases, but that would not be the best solution. Walker County District Attorney David Weeks, chairman of the Criminal Justice Section of the State Bar of Texas, recalls unpublished opinions that addressed issues he would have liked to address but he couldn’t quote from them. “What’s the object of having an opinion if you don’t publish it?” he asks. Weeks says government always talks about being open and accessible to the public. “I think the idea of unpublished opinions flies in the face of that,” he adds. Austin solo Betty Blackwell, president of the Texas Criminal Defense Lawyers Association, says it’s probably a good idea to publish all opinions. Hecht says the Supreme Court isn’t likely to act on the proposed rule until this fall. If the rule is approved in September, it could be implemented in January 2002, he says. A later approval date would result in a later date for implementation, he adds. How to make the opinions accessible is another problem. Hecht says an effort is being made to have Web pages where opinions can be published for all the appeals courts by the end of the year.

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