Understanding Texas Case Law: Binding Vs Persuasive

In Texas, not all case law is binding. As in all common law jurisdictions, some cases must be followed by all lower courts and is binding while other cases do not have to be followed and are merely persuasive.

In Texas there are four types of cases: Published, Unpublished, Opinions, and Memorandum Opinions.ⁱ Unpublished cases may be cited but have no precedential value.ⁱⁱ Memorandum opinions can be binding or persuasive, however they only must be issued for cases that are previously “settled” under existing case law and that do not establish new rule of law, involve constitutional issues, criticize existing law, or resolve a conflict of authority. ⁱⁱⁱ

In order to better understand this issue, I will apply the above to two Texas cases, Shelton and Buie.

Shelton was based in the Seventh Court of Appeals (which includes Amarillo and Lubbock). It is classified as an “opinion” and was published.^iv The court found in this case that court’s do not have jurisdiction to grant set-asides of convictions (a type of expungement in Texas) once probation plus thirty days have passed. This case is binding in all of the Seventh Court of Appeals counties.

While this case is somewhat simple, it can become more complicated. In Buie, a Sixth Court of Appeals court (in Texarcana) issued a similar opinion, and actually cited to Shelton. However, the court issued an unpublished memorandum opinion. Consequently, because it is not published, it is has “no precedential value.”^v Yes, it can be cited, but merely as persuasive authority that has no binding power.

Additionally, because it was classified as a memorandum opinion, it means that the court thinks that the issues are settled. This classification alone does not seem determinative of whether or not the case is binding on the court. However, because Buie is unpublished, it is not binding but merely persuasive authority. Consequently, Buie should not necessarily prevent a Sixth Court of Appeals trial court from finding that a set-aside can be granted any time after probation has been completed.

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