For the people in Cameron and Willacy County who I represent, the 13th Court of Appeals in Corpus and Edinburg is the most important appellate court there is. We are far more likely to have a case considered by the 13th Court of Appeals that the Texas Court of Criminal Appeals or the Federal 5th Circuit or the U.S. Supreme Court. It is important we get to know them; I have attempted a summary of the orders and decisions in criminal cases of the 13th Court of Appeals for the last quarter, October, November, and December 2022. During that time, 32 orders were “delivered and filed.” Also, 26 decisions were “delivered and filed.” Counting these is a little bit difficult, because sometimes one defendant will have more than one cause number, because of multiple charges. One guy had six by himself. So, roughly 58 cases were delivered and filed either with an order or with a decision. Of all of those, only two were “published.”
The judges and clerks were working hard: they have a civil docket as well and decided many cases on that side. All the civil cases are “published;” the Rules have prohibited “Do Not Publish” decisions in civil cases for nearly 20 years.
It is important we understand the significance of a decision being “published” or being labeled “Do Not Publish.” “Do Not Publish” does not mean we can’t look the decision up on the court’s website online. It is there. What it means is “Opinions and memorandum opinions not designated for publication by the court of appeals under these or prior rules have no precedential value but may be cited with the notation, ‘(not designated for publication).’” Rule 47.7. So, we can cite these cases, but the judges are supposed to ignore them as law they can follow? It appears this is where we are. Does it matter if orders and opinions are published? Maybe not with an order, because usually there is no law in an order. However, with a court’s opinion, some folks argue that not publishing distorts legal doctrine and harms the development of law. Rempell, Scott, Unpublished Decisions and Precedent Shaping: A Case Study of Asylum Claims (May 27, 2016). 31 Georgetown Immigration Law Journal 1, 2016, Available at SSRN: https://ssrn.com/abstract=2785752.
The Court hands down two types of decisions; Orders and Opinions.
An order tells the lawyers or court reporters or trial judges something that they should do. For example, a lawyer will ask for more time to write a brief, or a court reporter will ask for more time to prepare the record, or trial judge will be instructed to have a hearing to see if some of the evidence has been lost. The appeal of the case may be delayed so the trial judge may make a finding about whether the client has a right to appeal or whether there was a plea agreement that waived rights to appeal.
In the last quarter, all orders were “Do Not Publish.” Also, all orders were “per curiam.” Per Curiam is Latin for “by the court.” It is a court decision issued in the name of the Court rather than specific judges.
In the last quarter, all “Do Not Publish” opinions are also called “Memorandum Opinions.” A memorandum opinion means the issues are settled; there is no new law, no constitutional law, no important legal issues, it does not criticize existing law and there is no apparent conflict of authority. Aren’t these two principles in conflict? If the law is settled, shouldn’t be able to rely on the decision? So, shouldn’t all Memorandum Decisions be published and have precedential value—even more so because the law is settled?
Only two were published. So, let’s give credit where it is due. The first, Lance Taylor v. State was published October 6, 2022. It was not good news for Mr. Taylor; he received two life sentences for murder and tampering with evidence. (His lawyer is asking the Court of Criminal Appeals to review it.) It is an important appellate issue—speedy trial rights. And both sides asked for oral argument but were denied. The justices could have earned “praise for hearing oral arguments” award, but more on that later. Justice Jaime Tijerina signed the appeal with Justice Longoria and Chief Justice Contreras joining him. So, they should all receive the “praise for publishing” award. Unfortunately, the case may have committed some other deadly sins, especially #1 and #5, which are worth a later review, but for now we are only awarding merit.
The other published opinion, Scales v. State was signed by Justice Gina M. Benavides on November 22, 2022. She was joined by Chief Justice Dori Contreras and Justice Jaime Tijerina. Not only do they receive the “praise for publishing” award, but in this case, they also earned the “protecting the poor from debtor’s prison” award.
For all their good and kind work, Justices Contreras and Tijerina get three merit points. Justice Benavides each gets two. Justice Longoria gets one.