May a litigant cite to an unpublished opinion in an appellate brief

May a litigant cite to an unpublished opinion in an appellate brief?

Yes. While unpublished opinions technically have no precedential value, they may be cited in an appellate brief. The citation must include the parenthetical “not designated for publication.” See Texas Rule of Appellate Procedure 47.7(b). It is important to note that, since January 1, 2003, appellate courts have not had the option of issuing unpublished opinions. So, even if an opinion issued on or after that date carries the designation “unpublished,” the opinion nevertheless constitutes a published opinion. See Texas Rule of Appellate Procedure 47.7(b). This is true even if the official reporter has never included the opinion in a Southwest Reporter and assigned the opinion a volume and page number.

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