I am late in getting these statistics from the 2023 calendar year posted, but as they say, better late than never.
Unanimity. One statistic that I have tracked in recent years is the number of unanimous opinions authored by a justice. This statistic may be an indicator that a justice works with his or her colleagues to write an opinion reflective of all of the justices’ thought processes. In years past, Justice Blacklock has led the court with the most unanimous opinions, but in 2023, Justice Blacklock tied with Justice Busby for second, with each justice authoring six unanimous opinions. Justice Young had the highest number of unanimous opinions with seven.
Per curiam opinions. Per curiam opinions are unsigned opinions issued by the court as a whole. The court generally uses the per curiam opinion as a mechanism to correct lower court opinions where the lower court has issued an opinion containing a clear error conflicting with existing precedent. In 2023, the Texas Supreme Court issued 23 per curiam opinions. In all 23 cases, the Texas Supreme Court reversed the lower court.
Reversal rates. I keep a running total of reversal rates of the courts of appeals to look for trends. The numbers I focus on only look at the cases the court agreed to review. The vast majority of petitions are denied and a denial of a petition does not speak one way or the other to the question of whether the court of appeals opinion is factually and legally correct.
Keeping in mind that the average reversal rate for granted petitions is 75%, a reversal rate that is above 75%, indicates a higher than average reversal rate and a reversal rate below 75% indicates a below average reversal rate. Of particular note, 100% of the petitions taken from the Third Court of Appeals (Austin) were reversed. The Fourth Court of Appeals (San Antonio) had the second highest reversal rate at 87%. The First Court of Appeals (Houston) was right at the average at 75%, while the Fourteenth Court of Appeals (Houston) was below the average at 63%. The Fifth Court of Appeals (Dallas) was just below the average at 71%. In general, focus upon any one year’s reversal rate by court of appeals is not terribly meaningful. By aggregating data for multiple years trends may be revealed and it helps eliminate what could simply be an aberration. As if to underscore this point, Michelle Casady, with The Texas Lawbook, published a chart showing affirmance rates for the intermediate courts of appeals for the Texas Supreme Court’s fiscal year (running from September 2023 through its summer break at the end of June or early July). I was surprised to see that her numbers show Austin with the highest affirmance rates of all the intermediate courts of appeals. After consulting with Michelle Casady, I discovered that Austin is having a better-than-average success rate so far in 2024. This abrupt change illustrates why it may be wiser to look at trends rather than isolated time-frames.
Opinions vs. Memorandum Opinions. I continue to monitor whether the Texas Supreme Court is taking more petitions when the court of appeals issued an “opinion” versus petitions when the court of appeals issued a “memorandum opinion.” Data from prior years rebut the perception that the court is less likely to take a petition if the court of appeals issues a “memorandum opinion.” The data from the 2023 calendar year continue the trend. Fifty-nine percent of the opinions issued by the Texas Supreme Court on petitions for review involved a court of appeals “memorandum opinion,” whereas forty-one percent involved a court of appeals “opinion.”