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St. Mary's Law Journal

Abstract

In 2003 and 2008, the Texas Rule of Appellate Procedure (TRAP) 47 was amended. TRAP 47 is the rule which governs the issuance, citation, and precedential value of unpublished and memorandum opinions. The 2003 amendment was designed to make the law more readily available by prohibiting the issuance of unpublished opinions in civil cases and authorizing memorandum opinions in place of unpublished opinions. Despite its intention, the 2003 amendment failed to make civil case law more readily available. This is because such new opinions are only available via electronic repository, such as Westlaw or Lexis. As a result, to completely research binding law, Texas attorneys need access to Westlaw or Lexis. Originally the issuing of unpublished opinions was designed to conserve judicial resources by quickly disposing of cases and was primarily practiced by Texas intermediate appellate courts. Texas lower courts have begun issuing these opinions to cope with the increasing volume of cases and use them to resolve easier disputes. For many years these unpublished opinions were non-precedential and non-citable. As the complexity and number of decisions issued via unpublished opinions skyrocketed, many attorneys and judges were unsatisfied with the unusable body of law. This dissatisfaction led to the 2003 amendment. The 2008 amendment to TRAP 47 clarified that all opinions and memorandum in civil cases after the 2003 amendment have precedential value. This amendment effectively overrules the case law which treated memorandum opinions as non-precedential. The 2008 amendment is flawed as it makes memorandum opinions precedential, even though those opinions are only readily accessible via Westlaw and Lexis. For this reason, a large percentage on Texas attorneys cannot competently research most of the recent binding civil case law which has issued since 2003.

Publisher

St. Mary's University School of Law

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