St. Mary's Law Journal


David M. Gunn


In Texas, worries of judicial overproduction have persisted throughout the twentieth century. Although the Texas Supreme Court began to use per curiam opinions more frequently around 1925, the flood continues. Texas now has more courts and judges than ever before, and history offers no reason to expect retrenchment. The present scheme in Texas creates two classes of judicial opinions, published and unpublished. Unpublished opinions are not supposed to count for purposes of stare decisis, while published opinions do. Texas Appellate Rule 90 regulates the issuance of opinions from the courts of appeals. Part (a) requires intermediate courts to issue written opinions in conjunction with the decision of each case, yet there is no such requirement for the Texas Supreme Court. Consequently, publication rates vary widely among the fourteen courts of appeals. A nonpublication rule necessarily entails some disadvantages. Complaints are common whenever opinions are subject to a “do not publish” order. One frequently finds concern that courts are deliberately burying their work product and suppressing precedent. Although one can easily see how a published opinion may affect the jurisprudence of the state, how can an unpublished opinion ever do so, since Rule 90(i) forbids its citation as authority? Rule 90 strikes a balance between two competing interests. First, it limits the production of precedent by allowing for unpublished opinions. In so doing, it slows the growth of law libraries and reduces the availability of those decisions. Second, it bans reliance on unpublished opinions. This prohibition levels the playing field which would otherwise tilt in favor of the well-financed. Technology may provide a “solution” by making even unpublished opinions readily accessible to all. But because an adversary system generates pressure to final all relevant authorities, the “cure” could be worse than the disease.


St. Mary's University School of Law