Mem Ops, “Do Not Publish,” Per Curiams, and All that Jazz
Each week (usually on Wednesday), the 4th Court publishes a list of issued opinions that are designated Opinion or Memorandum Opinion (Mem Op for short), Publish or Do Not Publish, and are authored or designated per curiam. What does all that mean? The answer depends on (1) whether the case is civil or criminal; (2) when the case was decided; and (3) whether the case is in a court of appeals, the Supreme Court of Texas, or the Texas Court of Criminal Appeals (CCA). Generally, these designations have implications for the precedential value and cite-ability of cases.
In the 4th Court of Appeals
Civil Cases: All opinions are designated “Opinion” or “Memorandum Opinion.” Tex. R. App. P. 47.2(a). “Opinion” signifies the opinion establishes a new or important legal principle or the case is interesting in some respect. See id. R. 47.4. “Memorandum Opinion” signifies the decision does not establish a new or important legal principle. See id. All Opinions issued on or after 1-1-2003 are published in West’s Southwest Reporter; Mem Ops issued on or after 1-1-2003 are not. Opinions and Mem Ops issued on and after 1-1-2003 have precedential value and may not be designated by the court of appeals as “Do Not Publish.” Id. R. 47.2(c). All opinions issued before 1-1-2003 have precedential value only if designated “publish.” Id. R. 47.7(b). The “publish” designation for opinions issued before 1-1-2003 is often not displayed on third-party case databases online. But, generally speaking, pre-1-1-2003 opinions that have a Southwest Reporter number have been designated “Publish.” Any opinion without precedential value (those not designated for publication) may be cited with the notation “(not designated for publication).” Id.
The “Opinion” or “Memorandum Opinion” designation will appear toward the top of the first page on the opinion issued by the 4th Court.
Criminal Cases: The same rules generally apply to criminal cases in the 4th Court. The only difference is that an opinions issued on or after 1-1-2003 may still be designated “Do Not Publish.” If so, the opinion has no precedential value. Nevertheless, any such opinion may be cited with the notation “(not designated for publication).” The “Publish” or “Do Not Publish” designation for opinions issued before 1-1-2003 is often not displayed on third-party case databases online. But, generally speaking, opinions that have a Southwest Reporter number have been designated “Publish.”
The “Publish” or “Do Not Publish” designation in criminal cases will appear at the end of the last page on the opinion issued by the court of appeals.
Per Curiams: Opinions in both civil and criminal cases may be designated per curiam. “Per curiam” is Latin for “by the court,” and signifies that none of the judges on the panel are claiming authorship. The Texas Rules of Appellate Procedure provide no guidance for when an opinion should be designated per curiam. Whether an opinion is designated per curiam is determined by a majority of the justices who participate in considering the case. See Tex. R. App. P. 47.2(a). Historically, the 4th Court designates opinions per curiam if the opinion explains the disposition of a case that has not been decided on the merits, usually because the case is dismissed for want of jurisdiction, for want of prosecution, or on a party’s motion. The 4th Court also designates most opinions in mandamus cases per curiam when the court is summarily denying relief.
If an opinion is designated per curiam, the designation will appear on the first page of the opinion by the panel information. Because per curiams are “by the court” and are not signed by any justice, the per curiam designation appears again at the bottom of the opinion.
In the Supreme Court of Texas
Although the Texas Rules of Appellate Procedure regulate opinions issued by the courts of appeals, the supreme court has not adopted any rules that regulate its own opinions. See Tex. R. App. P. 53–65. In the 2008 amendments to the Texas Rules of Appellate Procedure, the supreme court deleted references to unpublished opinions in civil cases. Id. R. 53, cmt. However, the supreme court must issue a written opinion in each case in which it renders a judgment. Id. R. 63. Presumably, all supreme court opinions have precedential value. Occasionally, the supreme court will grant a petition for review in order to correct a court of appeals’ error on a well-settled legal principle. In such cases, as well in many mandamus cases, the supreme court will designate its opinions per curiam.
In the Texas Court of Criminal Appeals (CCA)
Like the courts of appeals, the CCA may choose not to publish opinions and they will have no precedential value. See Tex. R. App. P. 77.3. Unlike unpublished opinions from the courts of appeals, unpublished opinions from the CCA “must not be cited as authority by counsel or by a court.” See id. (emphasis added). Historically, the CCA has chosen not to publish opinions in routine habeas cases and, notably, in the vast majority of its death penalty cases.