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Texas’ two highest courts agreed to disagree when it came to deciding whether all appellate court opinions can be cited as precedent in the future. The “do not publish” designation is to be discontinued and all opinions can be cited in civil cases under rule changes that the Texas Supreme Court ordered on Aug. 6. But opinions by courts of appeals in criminal cases will continue to bear the notation “publish” or “do not publish.” Court of Criminal Appeals Presiding Judge Sharon Keller says her discussions with some justices on the courts of appeals indicated they prefer not to publish some opinions in criminal cases. “I don’t think anybody said criminal opinions ought to be published,” Keller says. Austin, Texas, criminal-defense attorney David Schulman says unpublished opinions are contrary to open government. “I think that now and again appellate courts will use unpublished opinions when they’re doing something they don’t want to call attention to,” Schulman says. The Texas Supreme Court’s order provides for publication of the amendments to Rule 47 of the Texas Rules of Appellate Procedure — as well as other TRAP changes — in the September Texas Bar Journal. The amendments take effect on Jan. 1, 2003, with any changes made after a 60-day public comment period. Under revised Rule 47, previously unpublished opinions in civil cases can be cited but will have no precedential value. Justice Nathan Hecht, rules liaison for the Texas Supreme Court, says the key point is being able to cite the opinions. “Once you’ve cited, what precedent something has is always an issue for the later court,” Hecht says. Houston attorney Charles “Chip” Babcock, chairman of the Texas Supreme Court’s advisory committee that proposed changes in Rule 47 of the Texas Rules of Appellate Procedure, says the court has shown leadership in its decision to allow citation of previously unpublished opinions. He contends that when courts forbid litigants from citing prior unpublished opinions, their action arguably is a content-based restriction on speech justified only by judicial efficiency and not by a compelling state interest. “To say to a lawyer or any citizen that you cannot talk to the court about a decision that is pertinent to the citizen’s business before the court raises serious First Amendment issues,” says Babcock, a partner in Dallas-based Jackson Walker. No-citation rules have sparked controversy in the federal system. Judge Jerry E. Smith called the practice of denying precedential status to unpublished opinions “questionable” in a June 2001 dissent to a denial by the 5th U.S. Circuit Court Appeals for en banc review in Williams v. Dallas Area Rapid Transit. A 5th Circuit panel granted governmental immunity to DART in a 1999 unpublished opinion in Anderson v. Dallas Area Transit. Because the 1999 opinion was unpublished, the panel in Williams was free to disagree with the Anderson panel and denied DART immunity. “What is the hapless litigant or attorney, or for that matter a federal district judge or magistrate judge, to do?” Smith asked in his dissent. In August 2000, a panel of the 8th Circuit in St. Louis held in Anastasoff v. United States that its rule disallowing the court to rely on unpublished opinions was unconstitutional, but the opinion was vacated on rehearing by the full court in December 2000. A panel of the 9th Circuit, in a September 2001 memorandum opinion, held in Hart v. Massanari that it could limit citation to unpublished opinions. “Texas will be the leading jurisdiction on this, no question,” Babcock says. The move to change Rule 47 comes as the American College of Trial Lawyers prepares to release a report addressing the issue, says Babcock, an ACTL member. William T. “Bill” Hangley, chairman of the ACTL Committee on Federal Rules of Evidence, is the author of the report, which recommends that all appellate courts release their opinions for publication. The report also calls for the development of uniform rules for access and use of unpublished opinions in the federal system, and the elimination of restrictions on citing opinions, says Hangley, chairman of Hangley Aronchick Segal & Pudlin in Philadelphia. “The question is whether the appellate courts are advancing or impeding justice and the rights of litigants when they either withhold opinions from the scrutiny of most lawyers or forbid lawyers, in advance, from citing the courts’ own past opinions for whatever persuasive value those opinions may have in a present case,” Hangley said in the report. Under amended Texas Rule 47, each opinion in a civil or criminal case must be designated “opinion” or “memorandum opinion.” If memorandum opinions are written the way they should be written, they won’t be cited, Hecht says. A memorandum opinion should state who won, who lost and the basic reason for the decision, he says. The TRAP amendments also create a requirement for appeals in criminal cases. Under Rule 25.2, a defendant’s notice of appeal must be certified by the trial court. Unless a notice is certified, the appeal will not go forward. Keller says the CCA amended the rule to prevent defendants who have a right to appeal from being trapped by technical requirements of the rule and to prevent those who don’t have a right to appeal from tying up appeals courts’ resources. When a defendant appeals under current rules, Keller says, the appellate record must be prepared regardless of whether that individual has a right to appeal. The appeal is dismissed if it’s determined that the individual didn’t have a right to bring it, she says. “That’s a big waste of resources and time that could be spent somewhere else,” Keller says. Schulman says the rules change adds a hurdle to state appeals that defendants already face in the federal system, where a certificate of appealability must be obtained from the district court.

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