Opinions and Memorandum Opinions in Civil Cases
Published in the Appellate Advocate, February 2012.
Ben Baring, De Lange Hudspeth McConnell & Tibbets, LLP, Houston .
Since the amendments to the Texas Rules of Appellate Procedure became effective on January 1, 2003, each opinion of the court of appeals must be designated either an opinion or a memorandum opinion. Tex. R. App. P. 47.2. A majority of the justices who participate in considering the case determine whether an opinion will be designated an opinion or a memorandum opinion. Id. The process of designating the court’s opinion as either an opinion or a memorandum opinion replaced the previous procedure, expressed in former Rule 90, which required appellate courts to make a notation of “publish” or “do not publish” on each opinion. See Tex. R. App. P. 90(c), repealed by Tex. R. App. P. 47. Now, no opinions or memorandum opinions in civil cases issued on or after January 1, 2003 are to be designated “do not publish.” And all opinions of the courts of appeals (both opinions and memorandum opinions) are “open to the public and must be made available to public reporting services, print or electronic”. Tex. R. App. P. 47.2(c), 47.3.
The standards for determining whether a court of appeals should issue a memorandum opinion are set forth in Rule 47.4. This rule provides that, unless the author of the opinion or of a concurring or dissenting opinion opposes the designation, the court should write a brief memorandum opinion no longer than necessary “if the issues are settled.” The rule establishes a presumption that an opinion will be designated a memorandum opinion, as the rule provides that an opinion must be designated a memorandum opinion unless one of four circumstances is met. An opinion must be designated a memorandum opinion unless it:
- 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;
- involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;
- criticizes existing law; or
- resolves an apparent conflict of authority
These are virtually the same circumstances required by former Rule 90 to determine whether an opinion should be published. See Tex. R. App. P. 90(d)(1)-(4), repealed by Tex. R. App. P. 47.
I. The Court of Appeals Apply Differently the Standards for Designating Memorandum Opinions
There is no requirement that courts of appeals identify the grounds for determining whether a particular opinion is designated a memorandum opinion. It is therefore impossible to determine how the courts of appeals apply the designation standards. What is known is that the rates of designating memorandum opinions vary among the Texas courts of appeals.
For the seven-year period ending August 31, 2011, the average percentage of opinions designated as memorandum opinions by the courts of appeals in civil cases were as follows:
|COURT OF APPEALS
||PERCENTAGE OF OPINIONS DESIGNATED AS
|2nd (Fort Worth)
|4th (San Antonio)
|8th (El Paso)
|13th (Corpus Christi)
Combining the numbers for all of the courts of appeals, an average of 73.41% of these courts’ opinions were designated memorandum opinions during the fiscal years ending 2005 through 2011. As you can see, there are significant variations in the designation rates among the courts of appeals. For example, almost all of the opinions issued by the Corpus Christi Court of Appeals during this time period were designated as memorandum opinions, with nearly 90% being designated as such. On the other hand, in the El Paso Court of Appeals, only 44% of the opinions the court issued were designated memorandum opinions.
II. The Effect of Designating a Decision an Opinion or Memorandum Opinion
One question that arises is whether there is a correlation between the petition-for-review grant rate and the rate at which a court of appeals designates its decisions as memorandum opinions. In other words, does the Texas Supreme Court grant petitions for review at a higher rate from the courts of appeals that designate more of their decisions as opinions as opposed to memorandum opinions? One might expect this to be the case because the factors that the Supreme Court considers in deciding whether to grant a petition for review are similar to the factors the courts of appeals use in determining whether to designate a decision as an opinion or a memorandum opinion. For example, among the factors the Supreme Court considers in deciding whether to grant a petition for review are the following: (1) whether the justices of the court of appeals disagree on an important point of law; (2) whether there is a conflict between the courts of appeals on an important point of law; (3) whether a case involves the construction or validity of a statute; (4) whether a case involves constitutional issues; (5) whether the court of appeals appears to have committed an error of law of such importance to the state’s jurisprudence that it should be corrected; and (6) whether the court of appeals has decided an important question of state law that should be, but has not been, resolved by the Supreme Court. See Tex. R. App. P. 56.1. These factors are similar to the factors to be utilized by the courts of appeals in determining whether an opinion should be designated an opinion or a memorandum opinion. As noted above, the rules of appellate procedure provide that a court-of-appeals opinion should be designated as a memorandum opinion unless (among other circumstances) the opinion establishes a new rule of law or applies an existing rule to a novel fact situation, involves issues of constitutional law or other legal issues important to the jurisprudence of Texas, or resolves an apparent conflict of authority. Tex. R. App. P. 47.4.
So, does the Supreme Court’s grant rate go up for those courts of appeals that designate more of their decisions as opinions as opposed to memorandum opinions? Below is a graph showing the fourteen courts of appeals and the percentage of opinions (non-memorandum opinions) issued by each court during fiscal years ending August 2005 through August 2011. The graph also depicts the percentage of petitions for review from each court of appeals that were granted during this time period.
As the graph indicates, there was no correlation between the percentage of decisions designated as opinions and the rate of granted petitions for review during this time period. During this period, the El Paso court designated the highest percentage of its decisions as opinions (55.57%), yet the grant rate for this court (13.33%) did not exceed the overall average grant rate for all of the courts of appeals during this period (12.7%) to any significant degree. Similarly, none of the other courts of appeals that designated a higher than average number of decisions as opinions had a higher than average grant rate. Moreover, as the graph indicates, the courts of appeals that had lower than average rates for designating their decisions as opinions did not have correspondingly lower grant rates. For example, during this seven-year period the Corpus Christi court only designated 10% of its decisions as opinions. One might expect that, because 90% of the decisions from the Corpus Christi court were not considered to meet any of the standards for designating a decision as an opinion-which are similar to the factors used by the Supreme Court to determine whether to grant a petition for review-the Corpus Christi court would have the lowest grant rate of any of the courts of appeals. In fact, the opposite is true. Instead of having the lowest grant rate among the courts of appeals during this same period, the Corpus Christi court had the highest average percentage of petitions for review granted-21.73%. See Office of Court Administration, FY 2005-11 Annual Reports, available at http://www.courts.state.tx.us/pubs/annual-reports.asp (last updated Feb. 6, 2012).
Although the rate of designating decisions as opinions or memorandum opinions varies among the courts of appeals, there is no correlation between a court of appeals’s designation and the rate at which petitions for review from that court of appeals are granted by the Supreme Court. 1
1 This article does not analyze the issue of whether the Texas Supreme Court grants petitions for review at a higher rate for opinions as opposed to memorandum opinions. The Office of Court Administration does not keep statistics on the number of petitions for review filed and granted, categorized by whether the court of appeals opinion at issue was designated as an opinion or memorandum opinion.