What is an “unpublished case”? What is an “unpublished opinion”? What is an “unpublished decision”?
Before January 1, 2003, when a Texas court of appeals issued a decision, the court could decide whether its opinion would be “published” or “unpublished.” When a court of appeals issued a published opinion (also known as a “published case” or “published decision”), West Publishing Company printed the opinion in the hardbound South Western Reporter and assigned the opinion a “S.W.” citation (which indicates the volume number and page number of the hardbound book in which the opinion could be found). Unpublished opinions were never included in the South Western Reporter. So, the decision about whether to include an opinion in the South Western Reporter was made by the court of appeals (by designating the opinion as “published” or “unpublished”). The Texas Supreme Court changed the Texas Rules of Appellate Procedure effective January 1, 2003 so that all opinions issued on or after that date would be published. See Texas Rule of Appellate Procedure 47.7(b). This rule change dramatically increased the number of published opinions issued by Texas courts of appeals each year (because the courts of appeals could no longer issue unpublished opinions). To eliminate the need for a corresponding increase in the number of South Western Reporter volumes issued each year, Thomson Reuters (the successor to West Publishing Company) began making editorial decisions as to which opinions should be included in South Western Reporter volumes. The editorial decision by Thompson Reuters to include a case in the South Western Reporter (or to exclude the case) should have no bearing on the precedential value of the case, as that decision is made by an editor employed by the company rather than by an appellate justice. For cases issued before 2003, the change in the appellate rules did not elevate “unpublished opinions” to the same precedential status as “published opinions.” But the amended rules did permit, for the first time, parties to cite to unpublished opinions in court of appellate briefs. The amended rules provide that, when a party is citing a pre-2003 case that is “unpublished,” the party should include “not designated for publication” in a parenthetical following the case citation.