There’s a perception in some appellate circles that if the court of appeals has issued a “memorandum opinion,” the chances of getting review by the Supreme Court of Texas are minuscule.   A look at the supreme court’s statistics might change a few minds.

To give some perspective, first consider what it means to have a “memorandum opinion.”  The Texas rules of appellate procedure allow intermediate courts of appeals to designate written opinions as an “opinion” or a “memorandum opinion.”  In general, if the issues decided by the court are settled under existing law, the court should use the “memorandum opinion” designation.  But the “opinion” label should be used when the court (1) establishes a new rule, alters an existing rule, or applies an existing rule to a novel set of facts; (2) addresses issues of constitutional law or other legal issues important to the jurisprudence of the state; (3) criticizes existing law; or (4) resolves an apparent conflict of authorities.   Faithful application of this test to each appeal results in a sorting of cases into those that are mundane because they don’t plow new ground (memorandum opinions) and those that are significant because of the nature of the issues resolved (opinions).  The Texas Supreme Court accepts only cases that are important to the state’s jurisprudence, so one would expect to see a strong bias in favor of the “opinions” over “memorandum opinions.”

The breakdown of granted petitions for the 4-year period from 2014 through 2017 shows that approximately 1/3 of the petitions granted involved memorandum opinions.   In 2016, the percentage was approximately 40% of the total petitions granted.  Those percentages are strikingly high if memorandum opinions are supposed to be reserved for mundane settled legal questions.   The percentages may give practitioners hope that an opinion labelled as a “memorandum opinion” is not the end of the appellate road.