Mike Northrup frequently publishes to a blog called “Reverse and Render.”  We have shared his post from February here.

 

Parties (and their counsel) to a court of appeals’ disposition of an appeal sometimes worry that if the court disposed of the appeal by issuing a “Memorandum Opinion” instead of an “Opinion,” the chances of obtaining review by the Texas Supreme Court will be diminished. Statistics in recent years have helped to dispel this concern. The statistics for 2021 continue to support the conclusion that the label on the court of appeals’ disposition doesn’t matter insofar as obtaining supreme court review.

See Mike’s Report on 2021 SCOTX Statistics.

2021 Petitions for Review

During 2021, petitions for review granted and disposed of by the Texas Supreme Court were almost evenly split between those for which the court of appeals issued an “Opinion” (53%) and those for which the court of appeals issued a “Memorandum Opinion” (47%). Keeping in mind that the factors a court of appeals is supposed to use in its determination of what label to put on the written disposition overlap with factors the supreme court uses in deciding what matters are important to the state’s jurisprudence (for purposes of granting a petition), the near-even split between “Opinions” and “Memorandum Opinions” is notable.

The label on the court of appeals opinion didn’t seem to make a difference insofar as the affirmance or reversal by the supreme court. The court reversed 76% of the causes involving a court of appeals “Opinion,” and reversed 73% of the causes involving a court of appeals “Memorandum Opinion.”

Per Curiam Opinions

I like to track the supreme court’s use of per curiam (unsigned) opinions to see how the court uses that procedural device. The court often uses this device to correct patent errors made by the courts of appeals. Because these opinions are nearly always issued without oral argument, in theory the court expends fewer resources than it would otherwise expend, In 2021, the supreme court reversed the court of appeals in 100% of the causes when the supreme court issued a per curiam opinion upon granting a petition for review. This is the highest reversal rate I have seen for per curiam opinions since I have been tracking this statistic.

 

 

About the Author: Mike Northrup

Mike Northrup is a Shareholder and Section Head of the Cowles and Thompson Appellate Practice Group.