Delgado v Araguz: Petition for Review Filed on Behalf of Heather Delgado

8/9/2019 Delgado v Araguz: Petition for Review Filed on Behalf of Heather Delgado

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No. 14-0404

IN THE SUPREME COURT OF TEXAS

HEATHER DELGADO, in her capacity a/n/f TREVOR ARAGUZand TYLER ARAGUZ, and SIMONA LONGORIA,

Petitioners,

v.

NIKKI ARAGUZ,

Respondent.

PETITION FOR REVIEW

W. Mark LanierState Bar No.: 11934600Kevin P. ParkerState Bar No.: 15494020

Natalie V. ArmourState Bar No.: 24070785Lanier Law Firm6810 FM 1960 WestHouston, Texas 77069Telephone: 713/659-5200Facsimile: 713/[email protected]

Frank E. Mann

State Bar No.: 12924250Law Offices of Frank E. Mann5151 Katy Freeway, Suite 140Houston, Texas 770071Telephone: 713/524-6868Facsimile: 713/[email protected]

Edward C. BurwellState Bar No.: 00790402Law Offices of Edward C. Burwell5151 Katy Freeway, Suite 140

Houston, Texas 77007Telephone: 713/665-5761Facsimile: 713/524-1931

[email protected]

Chad P. EllisState Bar No. 24003278Ellis & Irwin, L.L.P.302 Jackson StreetRichmond, Texas 77406

Telephone: 832/595/1242Facsimile: 832/595/[email protected]

June 27, 2014

FILED14-04046/27/2014 4:10:01 PMtex-1672918SUPREME COURT OF TEXAS

BLAKE A. HAWTHORNE, CLE


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IDENTITY OF PARTIES AND COUNSEL

C OUNSEL FOR P ETITIONER H EATHER DELGADO

W. Mark Lanier Frank E. MannState Bar No.: 11934600 State Bar No.: 12924250Kevin P. Parker Law Offices of Frank E. MannState Bar No.: 15494020 5151 Katy Freeway, Suite 140

Natalie V. Armour Houston, Texas 77007State Bar No.: 24070785 Telephone: 713/524-6868Lanier Law Firm Facsimile: 713/524-19316810 FM 1960 West [email protected] Houston, Texas 77069Telephone:713/659-5200

Facsimile: 713/[email protected]

Edward C. BurwellState Bar No.: 00790402Law Offices of Edward C. Burwell5151 Katy Freeway, Suite 140Houston, Texas 77007Telephone: 713/665-5761Facsimile: 713/524-1931

[email protected]

C OUNSEL FOR P ETITIONER SIMONA L ONGORIA

Chad P. EllisState Bar No. 24003278Ellis & Irwin, L.L.P.302 Jackson StreetRichmond, Texas 77406

Telephone: 832/595/1242Facsimile: 832/595/[email protected]


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C OUNSEL FOR R ESPONDENT N IKKI ARAGUZ

Kent RutterState Bar No. 00797364Haynes and Boone, LLP1221 McKinney Street, Suite 2100Houston, Texas 77010Telephone: 713/547-2000Fax: 713/[email protected]

Kenneth E. BroughtonState Bar No. 03087250Reed Smith, LLP

811 Main Street, Suite 1700Houston, Texas 77002Telephone: 713/469-3800Fax: 713/[email protected]

Alene Ross LevyState Bar No. 12260550Alene Levy Law Firm, P.L.L.C.6262 Woods Bridge WayHouston, Texas 77007Telephone: 713/[email protected]

Phyllis Randolph FryeState Bar No. 07496600Darrell SteidleyState Bar No. 24013559Frye, Oaks & Benevidez, PLLC

3315 MercerHouston, Texas 77027Phone: 713/227-1717Fax: 713/[email protected] [email protected]


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Mitchell KatineState Bar No. 11106600John NechmanState Bar No. 24010261Katine & Nechman, L.L.P.1111 North Loop West, Suite 180Houston, Texas 77008Telephone: 713/808-1000Fax: 713/[email protected]

[email protected]

C OUNSEL FOR INTERVENOR NATIONAL UNION F IRE INSURANCE C OMPANY INTHE T RIAL C OURT

Phillip BechterState Bar No. 00787053Schwartz, Junell, Greenberg & Oathout, L.L.P.909 Fannin, Suite 2700Houston, Texas 77010Telephone: 713/752-0017Fax: 713/752-0327

[email protected]


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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

INDEX OF AUTHORITIES ................................................................................... vii

STATEMENT OF THE CASE ................................................................................. ix

STATEMENT OF JURISDICTION...................................................................... xiii

ISSUES PRESENTED FOR REVIEW .................................................................. xvi

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 2

ARGUMENT ............................................................................................................. 3

I. U NDER L ITTLETON , N IKKI IS IMMUTABLY MALE .................................... 3

II. T HE 2009 AMENDMENTS TO §2.005 DID NOT OVERRULE L ITTLETON .............................................................................................. 5

A. Courts are Required to Adhere to Rules of Statutory andConstitutional Construction when Construing Statutes .............. 5

B. The Court’s Construction Disregards Statutory HistoricalContext ........................................................................................ 6

C. The Term “Identity” Does Not Refer to “Sexual Identity” ........ 9

D. Section 2.005 has Never Purported to Define Marriage ........... 11

III. T HE 2009 AMENDMENTS CANNOT BE R ETROACTIVELY APPLIED TO VALIDATE N IKKI ’S VOID 2008 MARRIAGE ..................................... 15

CONCLUSION AND PRAYER ............................................................................. 17


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CERTIFICATE OF SERVICE ................................................................................ 19

CERTIFICATE OF COMPLIANCE ....................................................................... 21


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INDEX OF AUTHORITIES

C ASES P AGE (S)

Acker v. Texas Water Comm’n,790 S.W.2d 299 (Tex. 1990) ...................................................................................... 6

Bell v. State ,184 S.W.2d 635 (Tex. Crim. App. 1944) ................................................................ 10

Brady v. State ,906 S.W.2d 268 (Tex. App.—Amarillo 1995, pet. ref’d.) ...................................... 17

City of Waco v. Kelley ,

309 S.W.3d 536 (Tex. 2010) ...................................................................................... 5

In re Estate of Araguz , No. 13-11-00490-CV, 2014 WL 576085(Tex. App.—Corpus Christi Feb. 13, 2014) ..................................................... passim

Helena Chemical Co. v. Wilkins ,47 S.W.3d 486 (Tex. 2001) ........................................................................................ 6

Johnson v. State ,258 S.W.2d 829 (Tex. Crim. App. 1953) ................................................................ 10

Jones v. State ,17 S.W.2d 1053 (Tex. Crim App. 1928) ................................................................ 10

Littleton v. Prange ,9 S.W.3d 223 (Tex. App.—San Antonio 1999, pet. denied) ............................ passim

Parker v. State ,

53 S.W.2d 473 (Tex. Crim. App. 1932) .................................................................. 10

Rogers v. State ,204 S.W. 222 (Tex. Crim. App. 1918) .................................................................... 10

Stringer v. Cendant Mortg. Corp. ,23 S.W.3d 353 (Tex. 2000) ...................................................................................... 12


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C ONSTITUTIONAL P ROVISIONS P AGE (S)

TEX . CONST . art. I, §32 ...................................................................... xiii, xvi, 2, 7, 15

STATUTES & R ULES P AGE (S)

TEX . FAM . CODE §1.101 (West 2008) ........................................................................ 3

TEX . FAM . CODE §2.001 (West 2008) ............................................................... passim

TEX . FAM . CODE §2.004 (West 2014) ................................................................ 10, 11

TEX . FAM . CODE §2.005 (West 2008) ........................................................................ 9



TEX . GOV ’T CODE §22.001 (West 2014) ......................................................... xiii, xiv

Tex. Gov’t Code §311.011 (West 2014) .................................................................... 5

Tex. Gov’t Code §311.021 (West 2014) .................................................. 5, 12, 14, 15

Tex. Gov’t Code §311.022 (West 2014) .................................................................. 16

Tex. Gov’t Code §311.023 (West 2014) .............................................................. 6, 14

SECONDARY SOURCES P AGE (S)

Act of May 27, 2009, 81st Leg., R.S., Ch. 978, § 12(a),

2009 Tex. Gen. Laws 2571, 2574 ............................................................................ 16

S. Research Ctr., Bill Analysis, Tex. H.B. 3666, 81st Leg., R.S. (2009) ................ 13


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ix

STATEMENT OF THE CASE

NATURE OF THE C ASE

After volunteer firefighter Thomas Trevino Araguz III died in the line of

duty, his mother, Petitioner Simona Longoria, filed this lawsuit to declare his

marriage to Respondent Nikki Araguz, 1 a transgendered woman, void as a matter

of law on the grounds that it constituted same sex marriage. 2 Decedent’s ex-wife,

Petitioner Heather Delgado, intervened as next friend on behalf of their two sons,

filing her own petition to declare the marriage void. 3 Nikki answered and filed a

counterclaim to declare her marriage valid. 4

P ROCEEDINGS IN THE T RIAL C OURT

All parties moved for summary judgment on the issue of the validity of the

marriage. 5

1 In this Petition for Review, Petitioners will refer to Respondent Nikki Araguz as “Respondent”or “Nikki” and will use the personal pronouns “she” and “her.” In using these terms Petitionersare not conceding that Nikki is now, or ever was, a female. Instead, as the court did in Littletonv. Prange , 9 S.W.3d 223, 224 (Tex. App.—San Antonio 1999, pet. denied), Petitioners are usingthese terms for the sake of grammatical simplicity and because that is how Nikki desires to bedesignated.2 1CR 10.3 1CR 36.4 1CR 300.5 1CR 146, 259, 267.


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T HE J UDGMENT OF THE T RIAL C OURT

The trial court granted Petitioners’ motions for summary judgment, denied

Nikki’s motion for summary judgment, declared that Decedent was not married to

Nikki on the date of his death, declared that any purported marriage between

Decedent and Nikki prior to Decedent’s death was void as a matter of law, and

severed the remaining issues in the case relating to the administration of the estate

into a separate cause. 6

P ROCEEDINGS IN THE C OURT OF APPEALS

Nikki appealed the judgment to the Thirteenth Court of Appeals of Corpus

Christi in Edinburg. 7 Nikki was the appellant, and Ms. Longoria and Ms. Delgado

were the appellees. 8

T HE O PINION OF THE P ANEL AND J UDGMENT OF THE C OURT OF APPEALS

The panel that decided the case was composed of Chief Justice Valdez and

Justices Rodriguez and Longoria. 9 Chief Justice Valdez authored the opinion for

6 7CR 1869-70. A copy of the trial court’s order granting summary judgment is included in the

Appendix under Tab 1.7 See In re Estate of Araguz , No. 13-11-00490-CV, 2014 WL 576085, *1 (Tex. App.—CorpusChristi Feb. 13, 2014). A copy of the opinion of the court of appeals is included in the Appendixunder Tab 2, and a copy of the judgment of the court of appeals is included in the Appendixunder Tab 3. 8 See 2014 WL 576085 at *1.9 See id.


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the panel. 10 The opinion can be found at In re Estate of Araguz , No. 13-11-00490-

CV, 2014 WL 576085, *1 (Tex. App.—Corpus Christi Feb. 13, 2014).

The court of appeals rendered its judgment and issued its opinion on

February 13, 2014, reversing the trial court’s judgment and remanding the case for

further proceedings consistent its opinion. The court determined (1) “that a person

who has had a sex change is eligible to marry a person of the opposite sex”

following the sex change under the 2009 amendment to §2.005 of the Texas

Family Code, which added “an original or certified copy of a court order relating to

the applicant’s name change or sex change” as an acceptable form of proof to

establish the “identify and age” of an applicant for marriage in Texas; (2) that the

2009 amendments to §2.005 legislatively overruled Littleton v. Prange , 9 S.W.3d

223, 231 (Tex. App.—San Antonio 1999, pet. denied), which held that Texas law

does not recognize that a person may change his or her sex; and (3) that there is a

genuine issue of material fact regarding Nikki’s sex and whether the marriage was

a same sex marriage and, therefore, (4) Nikki is not entitled to rendition of

judgment. 11

10 See id. 11 Id. at *1, 7-14.


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Nikki moved for rehearing, asking the court to render judgment in her favor

or, in the alternative, to correct certain statements in the opinion that she believes

are incorrect. 12 The court denied Nikki’s motion for rehearing on April 15, 2014. 13

12 A copy of the court of appeals’ notice that it denied Appellant’s motion for rehearing isincluded in the Appendix under Tab 4.13 See Notice Denying Motion for Rehearing, Tab 4.


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xiii

STATEMENT OF JURISDICTION

The Supreme Court has jurisdiction over this petition because it involves the

construction of a statute necessary to the determination of this case. 14 The 2009

amendments to §2.005 list, among other things, “an original or certified copy of a

court order relating to the applicant’s name change or sex change” as a form by

which an individual applying for a marriage license may establish proof of

identity. 15 The court held that the amendment “establishes that a person who has

had a sex change is eligible to marry a person of the opposite sex [following the

sex change] such that the marriage is between one man and one woman, as set

forth in the Texas Constitution” and, thus, is not banned as “same sex marriage”

under §6.204(b) of the Texas Family Code. 16 But the term “identity” as it is used

in §2.005 does not mean “sexual identity,” and the amendment cannot reasonably

be construed to implicitly re-define the terms as “man,” “woman,” and “same sex”

as they are used in the Texas constitution and previously enacted statutes. Further,

the court retroactively applied the 2009 amendments to validate a void 2008

marriage even though §2.005 specifically states that the amendments apply only to

marriages with licenses issued on or after September 1, 2009.

14 See TEX . GOV ’T CODE §22.001(a)(3) (West 2014).15 T EX . FAM . CODE §2.005(a),(b)(8) (West 2014). A copy of §2.005 is included in the Appendixunder Tab 5.16 See In re Estate of Araguz , 2014 WL 576085 at *9; See TEX . CONST . art. I, §32; T EX . FAM . CODE §6.204(b) (West 2008). Copies of §32 and §6.204 are included in the Appendix underTabs 6 and 7, respectively.


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The Supreme Court also has jurisdiction over this appeal because the

decision of the Thirteenth Court of Appeals in this case conflicts with a decision

from the Fourth Court of Appeals in Littleton v. Prange , 9 S.W.3d 223, 231 (Tex.

App.—San Antonio 1999, pet. denied). 17 Specifically, the Thirteenth Court of

Appeals’ held that the 2009 amendments to §2.005 of the Family Code recognized

the right of an individual to change his or her sex and, thus, created a right for a

transgender person to marry a person of the same sex as he or she was born. 18 That

holding conflicts with the Fourth Court of Appeals’ holding that an individual’s

sex is immutably determined at birth for marriage purpose and that a marriage

between a transgender person and a person of the same sex as he or she was born

constitutes same-sex marriage and is thus void. 19

Finally, the Supreme Court has jurisdiction over this appeal because the

court of appeals has committed an error of law of such importance to the state’s

jurisprudence that it should be corrected. 20 The court held that the 2009

amendments to §2.005 of the Texas Family Code legislatively overruled Littleton ,

recognized the right of an individual to change his or her sex, and created a right

17 See §22.001(a)(2). See also In re Estate of Araguz , 2014 WL 576085 at *7-10; Littleton , 9S.W.3d at 231. A copy of Littleton is included in the Appendix under Tab 8.18 See 2014 WL 576085 at *7-10.19 See id. ; Littleton , 9 S.W.3d at 231.20 See §22.001(a)(6).


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for a transgender person to marry a person of the same sex as he or she was born .21

In so holding, the court completely overhauled Texas’s marriage law without

defining what makes an individual male or female.

21 See 2014 WL 576085 at *9.


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xvi

ISSUES PRESENTED FOR REVIEW

ISSUE 1: In 1997 and 2003, the Texas legislature enacted statutes defining

marriage in Texas as occurring between a man and a woman and prohibiting,

declaring void, and proclaiming against the state’s public policy civil unions and

same-sex marriages. 22 In 2005, the people of Texas by a large majority voted to

amend the constitution to provide that marriage “consist[s] only of the union of one

man and one woman” and to prohibit the recognition of “any legal status identical

or similar to marriage.” 23 Given these pronouncements against same-sex marriage

by the people of Texas and their legislative branch in 2003 and 2005, did the

legislature in 2009 intend the amendment to §2.005(b)(8) of the Family Code to

legislatively overhaul the statutory and constitutional provisions of this state’s

marriage law and create a right for a transgendered person to marry a person of the

same sex as he or she was born?

ISSUE 2: If the 2009 amendment did create such a right, should that

amendment retroactively apply to validate a void marriage performed before the

amendment took effect when the amendment itself specifically states it applies

only to marriages with licenses issued on or after September 1, 2009?

22 T EX . FAM . CODE §2.001 (West 2008); T EX . FAM . CODE §6.204. A copy of §2.001 is includedin the Appendix under Tab 9.23 TEX . CONST ., art I, §32.


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STATEMENT OF FACTS

The opinion of the court of appeals states the nature of the case. It arises

from the death of Thomas Araguz. At the time of his death, Mr. Araguz was in a

purported marriage relationship with Respondent Nikki Araguz who was

biologically a man but claiming to be a woman. Nikki was born in California in

1975 as Justin Graham Purdue with male sex organs, including a penis, testes, and

scrotum, and without any female sex organs, such as a vagina or uterus. 24 The

chart below sets out the subsequent events in chronological order and in the

context of relevant legislative and constitutional proclamations of Texas public

policy.

EVENT DATE RECORD CITE Littleton decided (holding that gender is

immutably determined at birth)October 27, 1999

Section 6.204 of the Texas Family Codegoes into effect (declaring same sexmarriages and civil unions void and

against public policy)

September 1, 2003

Art. I, §32 of the Texas Constitutionadopted (defining marriage as consisting

of only one man and one woman and prohibiting state recognition of legalstatus identical or similar to marriage)

November 8, 2005

Nikki and Decedent apply for marriagelicense

August 19, 2008 2CR 378-80

Nikki and Decedent participate in awedding ceremony

August 23, 2008 2CR 378

Nikki has sex reassignment surgery October 7, 2008 4CR 927

24 In re Araguz , 2014 WL 576085 at *1, n.2.


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EVENT DATE RECORD CITEAmendments to §2.005 go into effect September 1, 2009

Decedent dies July 3, 2010 6CR 1757-63Proceedings Filed in Court Below July 12, 2010 1CR 10

Nikki Files Petition for Change of Genderin California July 13, 2010 2CR 365-67

California court enters “Order for Changeof Gender and Issuance of New Birth

Certificate”

July 20, 2010 2CR 369

SUMMARY OF THE ARGUMENT

In determining that the 2009 amendments to §2.005 legislatively overruled

Littleton and created a right for a transgendered person to marry a person of the

same sex as he or she was born, the court of appeals incorrectly (1) construed the

term “identity” in §2.005 to refer to “sexual identity” and (2) construed the

amendments to implicitly re-define the terms “man,” “woman,” and “same sex” as

they are used in the constitution and previously enacted statutes. Because a person

born male is immutably male, Nikki was male as a matter of law at the time that

she attempted to marry Decedent. Therefore, that marriage was contrary to the

public policy of this state and void as a matter of law. 25

25 Tex. Const., art. I, §32 (“Marriage in this state shall consist only of the union of one man andone woman” and “This state or a political subdivision of this state may not create or recognizeany legal status identical or similar to marriage” ); T EX . FAM . CODE §§6.204(b) (“A marriage

between persons of the same sex or a civil union is contrary to the public policy of this state andis void in this state.”), 2.001 (“A man and a woman desiring to enter into a ceremonial marriagemust obtain a marriage license from the county clerk of any county in this state,” and “A licensemay not be issued for the marriage of persons of the same sex.”).


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In the alternative, even if the 2009 amendments to §2.005 did legalize

transgender marriages, the amendments specifically state that they apply only to

marriages with licenses issued on or after September 1, 2009. Thus the

amendments cannot validate Nikki’s void 2008 marriage. Accordingly, this Court

should grant this petition for review, reverse the judgment and remand this case to

the court of appeals to consider Nikki’s remaining points of error.

ARGUMENT

While it is true that “it is the policy of this state to preserve and uphold each

marriage against claims of invalidity,” that policy does not apply where there is “a

strong reason . . . for holding the marriage void or voidable.” 26 Because same-sex

marriages are “expressly made void by Chapter 6 [of the Family Code],” they are

not presumed to be valid. 27

I. U NDER L ITTLETON , NIKKI IS IMMUTABLY M ALE

In Littleton , the San Antonio court of appeals held that under Texas law, a

person’s sex for marriage purpose is immutably determined at birth. 28 Littleton is

factually analogous to this case and clearly supports the trial court’s summary

judgment. Littleton involved a purported marriage between Christie Littleton, a

26 TEX . FAM . CODE §1.101 (West 2008).27 Id. ; see §6.204.28 See Littleton , 9 S.W.3d at 224, 230-31.


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male-to-female transsexual person, and Jonathan Littleton, a man. 29 As Nikki

claims in this case, Christie claimed that she considered herself to be a female from

a very early age. 30 She obtained a legal name change when she was twenty-five,

and at the age of twenty-seven, before she was married, had sex reassignment

surgery. 31 Nevertheless, the court held that Christi’s marriage to Jonathan was

void because Christie was male. 32

In reaching this conclusion, the court noted that a post-operative female

transsexual is still biologically a male and that she inhabits a “male body in all

aspects other than what physicians have supplied.” 33 Based on the undisputed fact

that Christie was a male at birth, the court concluded as a matter of law that she

was still a male and could not marry another male. 34 This conclusion applies with

even greater force to Nikki Araguz, who attempted to marry Decedent before her

sex reassignment surgery had been performed. 35 Therefore, at birth and at the time

of the marriage ceremony, Nikki was in all physical respects a male. Nikki’s

summary judgment evidence describing her condition and her attempts to live as a

29 Id. at 224.30

Id .31 Id . at 224-25.32 Id. at 231.33 Id . at 231-32.34 Id . at 231; see also id. at 232 (Angelini, J., concurring (concluding same)).35 See 2CR 378; 4CR 927.


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female is of no legal significance. Nikki was born as a male and is therefore

immutably a male under Texas law. Accordingly, under the rule established by

Littleton , Nikki was a male when she attempted to marry Decedent in 2008.

II. T HE 2009 AMENDMENTS T O §2.005 DID NOT O VERRULE L ITTLETON

The court of appeals held that the legislature’s 2009 amendments to §2.005

created a right for a transgendered person to marry a person of the same sex as he

or she was born. 36 But that holding is wrong because the term “identity” as it is

used in §2.005 does not mean “sexual identity” and because §2.005 has never

purported to define marriage in Texas.

A. Courts are Required to Adhere to Rules of Statutory andConstitutional Construction when Construing Statutes

In construing a statute, a court’s primary role is to ascertain and give effect

to the legislature’s intent. 37 In enacting a statute, courts are to presume that the

legislature complied with the Texas constitution and intended the entire statute to

be effective and to provide a result feasible of execution. 38 “Words and phrases

shall be read in context and construed according to the rules of grammar and

common usage.” 39 Courts should glean the statute’s intent primarily from the plain

36 Estate of Araguz , 2014 WL 576085 at *9.37 City of Waco v. Kelley , 309 S.W.3d 536, 542 (Tex. 2010).38 Tex. Gov’t Code §311.021 (West 2014).39 Tex. Gov’t Code §311.011 (West 2014).


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meaning of the words in the statute, 40 and, regardless of whether or not the statute

is considered ambiguous on its face, courts should also consider the object sought

to be obtained by the statute, the circumstances under which it was enacted, the

statute’s legislative history, and the consequences of a particular construction of

the statute. 41 Statutes are presumed to be enacted with knowledge of and in

reference to existing law, and when a legislative enactment covers a subject

addressed by an existing law, the two provisions shall be harmonized whenever

possible to give effect to both. 42

B. The Court’s Construction Disregards Statutory HistoricalContext

When the amendments to § 2.005 are considered in light of the law in effect

at the time and in the historical context of Texas laws relating to the definition of

marriage, it is very clear that those amendments were not intended to expand the

definition of marriage in Texas to include unions between a man claiming

transgender status and another man. This historical context dates back to the 1997

enactment of §2.001 of the Family Code which allows marriages to occur between

“a man and a woman” and prohibits the issuance of a marriage license “for the

40 Id. ; Helena Chemical Co. v. Wilkins , 47 S.W.3d 486, 493-94 (Tex. 2001).41 TEX . GOV’T CODE §311.023 (West 2014).42 Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990).


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marriage of persons of the same sex.” 43 Two years later, based on the legislature’s

proclamation in §2.001, the San Antonio court of appeals decided Littleton .44

Four years after Littleton, in 2003, the legislature enacted §6.204 of the

Family Code, (1) defining the phrase “civil union” as any relationship status that

“is intended as an alternative to marriage or applies primarily to cohabitating

persons” and grants the parties legal rights analogous to spouses in a marriage; and

(2) declaring same-sex marriages and civil unions “contrary to the public policy of

this state and [ ] void in this state.” 45 With the passage of §6.204, the legislature

made clear that it intended to confine marriage in Texas to opposite-sex couples

and to exclude from the Texas definition of marriage any other relationship which

did not meet the statutory definition.

Then in 2005, the people of Texas by a large majority voted to amend the

constitution to provide that “Marriage in this state shall consist only of the union of

one man and one woman” and prohibit the recognition of “any legal status

identical or similar to marriage.” 46 Thus, the 2009 amendments were enacted

following the people of Texas and its legislature by both constitutional amendment

and statutory enactment defining marriage as a relationship which can occur only

43 TEX . FAM . CODE §2.001.44 Littleton , 9 S.W.3d at 230-231.45 TEX . FAM . CODE §6.204.46 TEX . CONST ., art. I, § 32.


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between one man and one woman and likewise prohibiting the recognition of

same-sex marriage or any marriage-like relationship that did not meet the

constitutional and statutory definition of marriage.

The holding of the court of appeals completely disregards this historical

context and the circumstances under which the 2009 amendments were enacted. In

justifying its holding, the court stated, “it is possible that the legal landscape has

changed since [ Littleton ],” and then, based on its own interpretation of the

amendment, the court concluded that “in fact, it has [changed].” 47 But the court’s

construction of the amendment marks the first change in direction of the legal

landscape in Texas marriage law. The amendments to Section 2.005 do not discuss

a change in the legal landscape of Texas marriage law. They merely list

documents that may be used to establish identity. 48 Until the court handed down

its opinion interpreting §2.005 as changing the legal landscape, the law in Texas

very clearly and consistently provided that gender was immutably determined at

birth and prohibited transgendered marriages. Therefore, the court’s holding

ultimately forms the basis for its opinion and is thus entirely circular.

47 Estate of Araguz , 2014 WL 576085 at *8.48 TEX . FAM . CODE §2.005.


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C. The Term “Identity” Does Not Refer to “Sexual Identity”

In holding that the amendment providing that a court order relating to the

applicant’s sex change may be used to establish “identity and age,” the court of

appeals necessarily construed the term “identity” to refer to “sexual identity.” 49

But the rules of statutory construction, when properly applied, reveal that is not the

case.

Both before and after the 2009 amendments were enacted, §2.005 listed the

types of proof of identity that applicants were required to submit to obtain a

marriage license. Prior to 2009, applicants were required to submit a “certified

copy of the applicant’s birth certificate or…some certificate, license, or document

issued by this state or another state, the United States or a foreign government.” 50

The 2009 amendments added specificity, listing nineteen different documents

which applicants could use to prove their identity to the clerk. 51 Among those

permitted documents, §2.005(b)(8) lists a “court order relating to the applicants’

name change or sex change.” 52 While at first glance the words “sex change” may

imply that “identity” refers to “sexual identity,” an analysis of the various

documents permitted to establish “identity and age” reveal that is not the case, as

49 See id. ; 2014 WL 576085 at *9.50 §2.005 (West 2008).51 See §2.005 (West 2014).52 Id. at §2.005(b)(8).


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many of those documents do not designate whether the applicant is male or

female. 53 Reading the statute in context and applying its plain language, the term

“identity” clearly means that the person applying for the license is the person

whose name will be on the license. In fact, a survey of Texas case law involving

the litigation of identity in connection with the validity of a marriage or a marriage

license reveals a litany of bigamy prosecutions aimed at determining whether the

person named on the marriage license was the person involved in the marriage. 54

From its plain language, it is readily apparent that the legislature did not

intend for §2.005 to govern the issuance of marriage licenses and thus to enforce

the prohibition against same sex marriages. Rather, it is obvious that the

legislature intended that §2.004 of the Family Code govern that task. Section

2.004 provides that each application form “must contain . . . the woman’s maiden

surname” and “a printed oath” under which the applicant solemnly swears that the

information in the application is correct. 55 And under §2.004(c), “[a]n applicant

53 See §2.005(b)(5,9,11,12,13,14) (listing a military identification card, a military dependentidentification card, military records, a military release or discharge documentation, a copy of amarriage license or divorce decree, a motor vehicle title, and school records as forms that anapplicant may use to prove identity).54 See Johnson v. State , 258 S.W.2d 829 (Tex. Crim. App. 1953); Bell v. State , 184 S.W.2d 635(Tex. Crim. App. 1944); Parker v. State , 53 S.W.2d 473 (Tex. Crim. App. 1932); Jones v. State ,17 S.W.2d 1053 (Tex. Crim App. 1928); Rogers v. State , 204 S.W. 222 (Tex. Crim. App. 1918).55 TEX . FAM . CODE §2.004(b)(2),(8) (West 2004) (emphasis added). A copy of §2.004 isincluded in the Appendix under Tab 10.


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commits an offense if the applicant knowingly provides false information.” 56

Because the statute says “ woman’s surname” and not “ womens’ surname” it

requires that one applicant be male and the other be female. The statute requires

that the applicant tell the truth under oath and thus enforces the legislature’s

mandate.

D. Section 2.005 has Never Purported to Define Marriage

Even if the Court determines that the term “identity” as it is used in §2.005

does refer to “sexual identity,” the Court should still reverse the judgment of the

court of appeals and affirm Littleton because §2.005 has never purported to define

marriage. The court of appeals’ attempt to redefine the terms “man,” “woman,”

and “same sex” as they are used in the constitution and previously enacted statutes

rests on five very shaky assumptions.

First, the court’s holding assumes that §2.005 requires the clerk to accept

any and all of the listed documents. But §2.005 only provides that an applicant use

the listed documents to prove identity. 57 It does not require the clerk to accept any

of the listed forms as proof of identity, and it does not require that the clerk accept

a court order relating to a sex change as establishing that a person born as a man is

a woman for the purpose of marriage. Important to note is that the clerk’s right to

56 Id. §2.004(c).57 See §2.005.


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refuse such marriage license on the basis of such proof does not render the “sex

change” language meaningless because an order relating to a sex change could be

submitted by an applicant to prove his original sex rather than his changed sex.

Interestingly, Nikki included a very analogous example in the clerk’s record—a

letter from the El Paso county attorney documenting an attempt by a man who had

sex reassignment surgery and then submitted a birth certificate, a name change

order, and a drivers’ license (showing him to be female) in support of an attempt to

marry a woman. 58

Second, the court’s holding assumes that by amending §2.005, the

legislature intended to change the constitution, significantly broadening its

definition of “woman” as it was used in Article I, §32. The court’s broadened

definition contravenes the legislature’s mandate that courts are required, when

construing statutes, to assume that the legislature intended to comply with the

Texas constitution 59 and this Court’s teaching that courts construing the

constitution should “rely heavily on its literal text and must give effect to its plain

language.” 60

Third, the court’s holding assumes that the legislature, by amending §2.005,

intended to substantially redefine the marriage relationship and the terms “man,”

58 6CR 1591-92.59 TEX . GOV ’T CODE §311.021.60 Stringer v. Cendant Mortg. Corp. , 23 S.W.3d 353, 355 (Tex. 2000).


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“woman,” and “same sex,” and effectuate these changes without altering one word

of any of the Texas statutes or constitutional provisions defining them. It is

inconceivable that the legislature would completely overhaul the state’s marriage

law without expressly altering those statutes. The fact that the legislature did not

expressly alter the marriage statutes shows the legislature in 2009 did not intend to

change the marriage definition. Rather, it only intended to provide clarity to

county clerks as to what documents they could accept as proof of identity.

This intent is verified by reviewing the legislative history contained in HB

3666’s Bill Analysis section entitled “Author’s/Sponsors Statement of Intent,”

which states that “HB 3666 is a clean-up bill requested by the Texas County and

District Clerk’s Association. The bill specifies valid forms of identification to be

used by an applicant for a marriage license.” 61 The Bill Analysis says nothing

about reversing Littleton , allowing transgender marriages, or an intent to change

the definition of “man” or “woman” as those terms are used in the Family Code

and the constitution. On all these matters, the legislative text and history is

completely silent, and that silence contravenes the court of appeals’ holding that

the amendments represented a sea-change in Texas marriage law.

Fourth, the court’s holding assumes that the legislature intended to legalize

transgender marriages without providing any guidance for courts to follow in

61 S. Research Ctr., Bill Analysis, Tex. H.B. 3666, 81st Leg., R.S. (2009), a copy of which isincluded in the Appendix as Tab 11.


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determining when a person’s gender actually changes and whether a marriage-

license applicant is male or female when the application is made. The amendments

provide no guidance as to whether compliance with the WPATH standards of care

is sufficient to legally change an individual’s sex, whether sex reassignment

surgery is required, or whether any other facts are determinative or properly

considered in judicially determining a person’s sex. In light of the express

constitutional and statutory ban on both same sex marriages and civil unions, it is

inconceivable that the legislature intended to legalize transgender marriages but

then forgot to explain the difference between transgender marriages and

constitutionally forbidden same-sex marriages. 62

Finally, the court’s holding assumes that the legislature intended to replace

the constitutionally-mandated, clear definition of marriage with a definition that

depends wholly on unspecified facts unique to each claimed marriage. 63 For

example, Nikki in this case claims she is a woman. She supports that claim with

medical records and affidavit testimony from her expert, who describes what Nikki

said about how she felt as a 4 to 5 year old child. 64 Nikki’s expert explains that

Nikki has lived as a woman since her teenage years, and on the basis of Nikki’s

62 See §311.021(1)(4).63 §§311.021(4), 311.023(5).64 4CR 949; 6CR 1611.


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experience, concludes that Nikki has been a female since the late 1990s. 65 It is

undisputed that Nikki did not have sex reassignment surgery until after she

obtained a marriage license with Decedent, but in the view of Nikki’s expert, that

surgery was not a definitive point in her transfer from male to female. 66 The court

of appeals’ holding directly contravenes the legislature’s mandate that when

construing a statute, courts are to presume that the legislature intended a result

feasible of execution in enacting the statute. 67

Under Littleton, the validity of any person’s marriage is dependent on their

marriage to a person of the opposite sex as determined at their birth and evidenced

by their birth certificate. Allowing a person’s sex for marriage purpose to be

determined by their life-long feelings rather than their sex at birth will render

meaningless the Texas constitutional and statutory provisions that define marriage

as between one man and one woman and which further prohibit and declare against

public policy same-sex marriages, civil unions, or the recognition of any legal

status identical or similar to marriage. 68 Instead of enforcing these important

constitutional and statutory provisions, the court riddles them with exceptions so as

to allow same sex couples to marry based on an unverifiable claim by one

65 In re Estate of Araguz , 2014 WL 576085 at*11; 7CR 1857.66 2014 WL 576085 at*10-11; 7CR 1858.67 §311.021(4).68 TEX . CONST ., art. I, §32; T EX . FAM . CODE §§2.001, 6.204.


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participant that he has always felt more like a member of the opposite sex than his

own. For these reasons, the Court should grant this petition for review and reverse

the court of appeals’ judgment.

III. T HE 2009 AMENDMENTS C ANNOT BE R ETROACTIVELY APPLIED TOVALIDATE NIKKI ’S VOID 2008 M ARRIAGE

Even if the Court determines that the 2009 amendments created a right for a

transgendered person to marry a person of the same sex as he or she was born, the

Court should still reverse the court of appeals’ judgment because the statute

expressly provides that the amendments are not retroactive. The 2009 amendments

to §2.005 were made effective September 1, 2009. The enacting legislation (HB

3666) specifically provided that the amendments would not apply retroactively,

stating:

Sections 2.002, 2.005, 2.006, 2.009 and 2.102 Family Code, as amended by this Act, apply only to an application for a marriage license submitted toa county clerk on or after the effective date [Sept. 1, 2009] of this Act. Anapplication for marriage license submitted before the effective date of theAct is governed by the law in effect immediately before that date, and theformer law is continued in effect for that purpose. 69

Statutes in Texas are presumed to act only prospectively. 70 When the

legislature gives express instruction for a statute not to apply retroactively, courts

69 Act of May 27, 2009, 81st Leg., R.S., Ch. 978, §12(a), 2009 Tex. Gen. Laws 2571, 2574, acopy of which is included in the Appendix as Tab 12.70 TEX . GOV ’T CODE §311.022 (West 2014).


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must follow those instructions. 71 In this case, the legislature directed that the

amendments should apply only to applications for marriage submitted on or after

September 1, 2009, and that the prior law remained in effect for applications

submitted before that date. Nikki applied for her marriage license in 2008. 72 By

holding that a fact issue exists as to Nikki’s sex and remanding the case to the trial

court, the court necessarily found that 2009 amendments could retroactively

validate Nikki’s void 2008 marriage. The court’s holding directly contravenes the

legislature’s mandate. 73 Accordingly, the Court should grant this petition for

review and reverse the court of appeals’ judgment.

CONCLUSION AND PRAYER

There is no genuine issue of material fact that Nikki was born male and had

male sex organs when her 2008 marriage to Decedent was performed. 74 Because

the 2009 amendments to §2.005 did not legislatively overrule Littleton and create a

right for a transgendered person to marry a person of the same sex as he or she was

born or, in the alternative, because the 2009 amendments cannot retroactively

validate Nikki’s void 2008 marriage, Petitioners pray that this Court grant this

petition for review, set this case for oral argument, reverse the judgment, and

71 Brady v. State , 906 S.W.2d 268, 270 (Tex. App.—Amarillo 1995, pet. ref’d.).72 2CR 378-80.73 Estate of Araguz , 2014 WL 576085 at *12-13.74 Id. at *1.


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remand the case to the court of appeals for it to consider Nikki’s remaining points

of error.

Respectfully submitted,

By: /s/ Kevin P. ParkerW. Mark LanierSBN 11934600Kevin P. ParkerSBN: 15494020

Natalie Van Houten Armour

SBN: 24070785Lanier Law Firm P.C.P.O. Box 6914486810 FM 1960 Rd. WestHouston, Texas 77069Telephone: (713) 659-5200Fax: (713) [email protected] Frank E. MannState Bar No.: 12924250Law Offices of Frank E. Mann5151 Katy Freeway, Suite 140Houston, Texas 77007Telephone: 713/524-6868Facsimile: 713/524-1931

Edward C. BurwellState Bar No.: 00790402Law Offices of Edward C. Burwell

5151 Katy Freeway, Suite 140Houston, Texas 77007Telephone: 713/665-5761Facsimile: 713/524-1931

ATTORNEYS FOR APPELLEE,HEATHER DELGADO IN HER


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CAPACITY A/N/F OF TREVORARAGUZ AND TYLER ARAGUZ

By: /s/ Chad P. Ellis, by permissionChad P. EllisState Bar No. 24003278Ellis & Irwin, L.L.P.302 Jackson StreetRichmond, Texas 77406Telephone: 832/595/1242Facsimile: 832/595/[email protected]

ATTORNEY FOR APPELLEE,SIMONA LONGORIA


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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing has been

served via certified mail, return receipt requested on this 27th day of June, 2014,

on the following:

Counsel for Respondent, Nikki AraguzKent RutterHaynes and Boone, LLP1221 McKinney Street, Suite 2100Houston, Texas 77010

Kenneth E. BroughtonReed Smith, LLP811 Main Street, Suite 1700Houston, Texas 77002

Alene Ross LevyAlene Levy Law Firm, P.L.L.C.6262 Woods Bridge WayHouston, Texas 77007

Phyllis Randolph FryeDarrell SteidleyFrye, Oaks & Benevidez, PLLC3315 MercerHouston, Texas 77027

Mitchell KatineJohn Nechman

Katine & Nechman, L.L.P.1111 North Loop West, Suite 180Houston, Texas 77008


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Counsel for National Union Fire Insurance Company:Phillip BechterSchwartz, Junell, Greenberg & Oathout, L.L.P.909 Fannin, Suite 2700Houston, Texas 77010

/s/ Kevin P. ParkerKevin P. [email protected]


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CERTIFICATE OF COMPLIANCE WITH RULE 9.4

This brief complies with the type-volume limitation of T EX . R. APP . P 9.4(i)(2)(B) because this brief contains 4,038 words, excluding the parts of the

brief exempted by T EX . R. APP . P 9.4(i)(1).

/s/ Kevin P. ParkerKevin P. [email protected] Attorney for Petitioner, Heather Delgado

Dated: June 27, 2014


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No. 14-0404



Petitioners,

v.

NIKKI ARAGUZ,

Respondent.

APPENDIX FILED BY PETITIONERS

W. Mark LanierState Bar No.: 11934600Kevin P. ParkerState Bar No.: 15494020

Natalie V. ArmourState Bar No.: 24070785Lanier Law Firm6810 FM 1960 WestHouston, Texas 77069Telephone: 713/659-5200Facsimile: 713/[email protected]

Frank E. Mann

State Bar No.: 12924250Law Offices of Frank E. Mann5151 Katy Freeway, Suite 140Houston, Texas 770071Telephone: 713/524-6868Facsimile: 713/[email protected]

Edward C. BurwellState Bar No.: 00790402Law Offices of Edward C. Burwell

5151 Katy Freeway, Suite 140Houston, Texas 77007Telephone: 713/665-5761Facsimile: 713/524-1931

[email protected]

Chad P. EllisState Bar No. 24003278Ellis & Irwin, L.L.P.302 Jackson Street

Richmond, Texas 77406Telephone: 832/595/1242Facsimile: 832/595/[email protected]

June 27, 2014


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No. 14-0404



Petitioners,

v.

NIKKI ARAGUZ,

Respondent.

APPENDIX FILED BY PETITIONERS

TABLE OF CONTENTS

Tab 1 - Trial Court’s Order Granting Summary Judgment (No. 44,575; In the Estate of Thomas Trevino Araguz, III, Deceased, In the 329th DistrictCourt of Wharton County, Texas), dated May 26, 2011

Tab 2 - Court of Appeals Opinion ( In re Estate of Araguz , No. 13-11-00490-CV, 2014 WL 576085, *1 (Tex. App.—Corpus Christi Feb. 13, 2014)

Tab 3 - Court of Appeals Judgment ( In re Estate of Araguz , No. 13-11-00490-CV, 2014 WL 576085, *1 (Tex. App.—Corpus Christi Feb. 13, 2014)

Tab 4 - Court of Appeals Notice Denying Appellant’s Motion for Rehearing,dated April 15, 2014

Tab 5 - T EX . FAM . CODE §2.005

Tab 6 - T EX . CONST . art. I, §32


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Tab 8 - Littleton v. Prange , 9 S.W.3d 223 (Tex. App.—San Antonio 1999, pet. denied)


Tab 10 - T EX . FAM . CODE §2.004

Tab 11 - S. Research Ctr., Bill Analysis, Tex. H.B. 3666, 81st Leg., R.S.(2009)

Tab 12 - Act of May 27, 2009, 81st Leg., R.S., Ch. 978, § 12(a), 2009 Tex.Gen. Laws 2571, 2574


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TAB

T rial Court s Order Granting Summ ary JudgmentNo. 44,575; In the E state o Thom as Trevino Araguz,

III, Deceased, In the 329th District Court of W hartonCounty, Texas), dated M ay 26, 2011


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FILEat_ :55 cock.

No. 44 575 2 2 1 1

IN THE ESTATE OF IN THE 329 DlSTF iw R TEXAS

THOM AS TREVINO ARAG UZ, III, O

DECEASED WHARTON COUNTY TEXAS

ORDER GRANTING ADMINISTRATOR S AND INTERVENOR SMOTIONS FOR SUMMARY JUDGMENT

AND SEVERANCE OF REMAING ISSUES INTO SEPARATE CAUSE NUMBER

The Court, having considered all of the parties various motions for summary

judgment, all of the parties responses to each other s motions and replies thereto, and the

summary judgment evidence in the record, finds that Administrator s and Intervenor s

motions for summary judgment should be GRANTED.

It is therefore, ORDERED that Administrator s and Intervenor s motions for summary

judgment are hereby GRANTED, and it is DECLARED that Decedent, Thomas Trevino

Araguz Ill was not married on July 4, 2010, the date of his death, and it is FURTHER

DECLARED that any purported marriage between the Decedent and Respondent Nikki

Araguz prior to Decedent s death was void as a matter of law.

Respondent s motions for summary judgment are hereby DENiED. All of

Respondent s counterclaims, affirmative defenses, constitutional claims and all other relief

requested by Respondent in this case (except for those limited matters already granted in

previous orders) are hereby DENIED. This ORDER completely disposes of all pending

claims and issues concerning Respondent Nikki Araguz in this case. This is a final and

appealable order as to Respondent Nikki Araguz.

All other pending issues and proceedings in this cause by and among the remaining

parties, including the administration of the estate of Decedent, are hereby SEVERED into a

raguz

E rder on Petitioners Motion for Summary Judgmentagel1869

L

i

L

U


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separate Cause No. 44,575-A, so that no unresolved claim or controversy remains in this

Cause No. 44,575

SIGNED on the 2 - 4 d y of 2011.

y ZPRESIDIN 1JUDGE

[

Are guzrder on Petitioners Motion for Summary Judgment

87Page2

l


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TAB 2

Court of Appeals Opinion ( In re Estate of Araguz , No.13-11-00490-CV, 2014 WL 576085, *1 (Tex. App.—

Corpus Christi Feb. 13, 2014)


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NUMBER 13-11-00490-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE ESTATE OF THOMAS TREVINO ARAGUZ III, DECEASED

On appeal from the 329th District Courtof Wharton County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and LongoriaOpinion by Chief Justice Valdez

After volunteer firefighter Thomas Trevino Araguz III died in the line of duty, his

mother, Simona Longoria, filed this suit to declare his marriage to Nikki Araguz void as a

matter of law on the grounds that it constituted a same sex marriage. 1 See T EX. CONST .

art. I, § 32(a) (“Marriage in this state shall consist only of the union of one man and one

woman.”); TEX. F AM. CODE ANN. § 6.204(b) (West 2006 ) (“A marriage between persons of

1 Specifically, Simona filed an Application for Letters of Administration, Application forDetermination of Heirship, Petition to Declare Marriage Void, Application for Temporary Restraining Order,and Motion to Transfer Venue to District Court.


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the same sex or a civil union is contrary to the public policy of this state and is void in this

state.”). Subsequently, Thomas’s ex -wife, Heather Delgado, intervened as next friend on

behalf of their two minor children also contending that Thomas’s marriage to Nikki was

void as a matter of law because it constituted a same sex marriage. See TEX. CONST . art.

I, § 32(a); T EX. F AM. CODE ANN. § 6.204(b). Nikki answered the suit and filed a

counterclaim to declare the marriage valid. See TEX. C IV. P RAC . & REM. CODE ANN. §§

37.003 – .004 (West 2008). The parties filed opposing motions for summary judgment.

See TEX. R. C IV. P. 166a(c), (i). The trial court granted Simona and Heather ’s motions

and denied Nikki’s motion. The court then entered a final judgment in favor of Simonaand Heather declaring the marriage void as a matter of law. See TEX. F AM. CODE ANN. §

6.204(b). For the reasons set forth below, we conclude that the trial court erred in granting

the summary judgment because there is a genuine issue of material fact regarding Nikki’s

sex and whether the marriage was a same sex marriage. See TEX. R. C IV. P. 166a(c), (i).

Accordingly, we reverse th e trial court’s judgment and remand for further proceedings

consistent with this opinion. See TEX. R. APP . P. 43.2(b).

I. BACKGROUND 2

Nikki was born in California in 1975 with male sex organs, including a penis, testes,

and scrotum, and without any female sex organs, such as a vagina or uterus. The name

“Justin Graham Purdue” appeared on Nikki’s original birth certificate with the designation

2 The facts stated in this background section are not in dispute. See TEX. R. APP . P . 38.1(g) (“In acivil case, the court will accept as true the facts stated unless another party contradicts them.”). We alsonote that although we refer to Nikki using feminine terms throughout this opinion, as Nikki and Heather havein their appellate briefs, we do so strictly for ease of reference and to be courteous and respectful in statingthe basic reasons for our decision. See TEX. R. APP . P. 47.1; T EX. CODE OF J UDICIAL CONDUCT , Cannon3B(4) (“ A judge shall be patient, dignified and courteous to l itigants . . . .”); see Littleton v. Prange , 9 S.W.3d223, 224 (Tex. App. —San Antonio 1999, pet. denied) (referring to appellant in feminine terms even thoughher sex was disputed and noting that such references were “out of respect for the litigant” and have “nolegal implications”).


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that Nikki was “male.” Nevertheless, since early childhood, Nikki was largely taken by

others as a girl. She always reacted favorably to this. By the age of four or five, she

expressed feelings of being female. Nikki began wearing female clothes as an adolescent

and has continued to do so for essentially all of her life. At the age of eighteen, Nikki’s

physici an diagnosed her with “gender dysphoria” (also known as “gender identity

disorder”), a medical condition whereby an individual has longstanding and persistent

feelings of being a member of the opposite sex. Nikki’s physician started her on

feminizing hormone therapy, and she continued living as a female.

At the age of twenty-one, Nikki filed a petition in the 245th District Court of HarrisCounty, Texas to have her name changed. In the petition, Nikki states the following: “I,

Justin Purdue, am a woman with male anatomy, working toward a sex change. I have

been living and working as a woman for over one year and seek to make my new name

legal and permanent. ” On February 9, 1996, the district court issued an order granting a

name change from “Justin Graham Purdue” to “Nikki Paige Purdue.” Subsequently, on

April 27, 1996, Nikki filed an application in California to amend her birth certificate to

reflect the name change. Thereafter, on August 21, 1996, the State of California issued

an amended birth certificate reflecting the name change.

After changing her name, Nikki obtained a driver’s license from Kansas with the

designation that she is female. She then used the Kansas driver’s license to obtain a

Texas driver’s license with the designation that she is female.

On August 19, 2008, Nik ki presented her Texas driver’s license to the County Clerk

of Wharton County, Texas to obtain a marriage license. The marriage license indicates

that Nikki is a “woman.” On August 23, 2008, Thomas and Nikki were married in a


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ceremonial wedding in Wharton County. At the time of the wedding, Nikki had male sex

organs, but she was living as a woman. After the wedding, Thomas and Nikki cohabitated

as husband and wife until the time of Thomas’s death in 2010.

In October of 2008, Nikki underwent “genital reassignment” or “neocolporrhaphy”

surgery in which her testes were removed and her penis and scrotum were surgically

altered to resemble and function as a labia, clitoris, and vagina. The procedure was

performed in Texas by Dr. Marci Bowers, a Texas licensed physician. The parties dispute

whether Thomas was aware of Nikki’s operation. On April 28, 2010, just two months

before his death, Thomas gave a deposition in a family court proceeding involving thecustody of his two sons in which he testified that he did not know that Nikki had undergone

genital reassignment surgery. Thomas testified that he did not know that his wife was

“formerly male” or that she had any type of “gender surgery.” According to Thomas’s

testimony , Nikki represented herself as “female” prior to their marriage. Nikki maintains

that before Thomas’s deposition, she and Thomas agreed to take the position that she

was female from birth. According to Nikki, Thomas was fully aware of the genital

reassignment surgery.

Thomas died on July 3, 2010. On July 15, 2010, Nikki filed a petition in the superior

court of San Francisco County, California requesting the issuance of a new birth

certificate reflecting the change of her sex from male to female. On July 20, 2010, the

California court entered an order changing Nikki’s sex from male to female. Thereafter,

on August 30, 2010, the State of California issued a birth certificate stating that Nikki is

“female.”


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II. P ROCEDURAL HISTORY

As set forth above, Th omas’s mother, Simona, initiated this suit on July 12, 2010

seeking to have Thomas’s marriage to Nikki declared void as a same sex marriage. See

TEX. F AM. CODE ANN. § 6.204(b). Thomas’s ex -wife, Heather, subsequently intervened

as next friend on behalf of their two minor children also seeking to have the marriage

declared void. See id . Nikki answered the suit and filed a counterclaim to declare the

marriage valid. The parties then filed opposing motions for summary judgment as follows.

A. Heather’s M otion for Summary Judgment

On October 26, 2010, Heather filed a traditional motion for summary judgment,with attached evidence, 3 asserting the following grounds for summary judgment:

(1) The marriage was void pursuant to Article I, Section 32 of the TexasConstitution, which provides that “marriage in this state shall consist onlyof the union of one man and one woman.” TEX. CONST . art. I, § 32(a).

(2) The marriage was void pursuant to Section 6.204(b) of the Texas FamilyCode, which provides that “a marriage between persons of the samesex is . . . contrary to the public policy of this state and is void as a matterof law.” TEX. F AM. CODE ANN. § 6.204(b).

(3) As a matter of law, no informal marriage could have existed betweenThomas and Nikki because Section 2.401 of the Texas Family Codeprovides for informal marriage only between a man and a woman, as

3 The evidence attached to Heather’s motion for summary judgment included the following: (1)Nikki’s original birth certificate stating that Nikki was born “male” on June 4, 1975 in Carmel, California andnamed “Justin Graham Purdue”; (2) an application for a name change completed by “Justin GrahamPurdue,” identifying the applicant’s sex as “M” or male and stating as the cause for the name change: “I,Justin Purdue, am a woman with male anatomy, working toward a sex change. I have been living andworking as a woman for over one year and seek to make my new name legal and permanent”; (3) an order

of the 245th District Court of Harris County granting the name change as of February 2, 1996; (4) anapplication for amendment of birth certificate to reflect the court ordered change of name completed byNikki and dated April 27, 1996; and (5) Nikki’s answers to requests for admissions in the instant suit,admitting the following: (a) Nikki was born Justin Graham Purdue; (b) the birth certificate of Justin GrahamPurdue lists his sex as male; (c) Justin Graham Purdue was born with a penis; (d) Justin Graham Purduewas born with testes; (e) Justin Graham Purdue was born without a vagina; (f) Justin Graham Purdue wasborn without a uterus; (g) Nikki had a penis on the day of the issuance of the marriage license for Nikki andThomas; (h) Nikki had testes on the day of the issuance of the marriage license for Nikki and Thomas; and(i) Nikki had genital reassignment surgery in October of 2008.


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decided by the San Antonio Court of Appeals in Littleton v. Prange , 9S.W.3d 223, 231 (Tex. App. —San Antonio 1999, pet. denied). See TEX. F AM. CODE ANN. § 2.401 (West 2006).

See TEX. R. C IV. P. 166a(c).

B. Nikki’s Motion for Summary Judgment

On April 21, 2011, Nikki filed a “ no evidence ” motion for summary judgment

asserting that she was entitled to judgment as a matter of law because Heather and

Simona could produce no evidence that Thomas and Nikki did not have a valid ceremonial

marriage or, alternatively, a valid informal marriage. See TEX. R. C IV. P. 166a(i). 4

C. Heather’s Response to Nikki’s Motion On May 13, 2011, Heather filed her respo nse to Nikki’s motion for summary

judgment with evidence attached. 5 In her response, Heather argued that summary

judgment was not proper because of the following:

(1) “It is undisputed that as of the date of the statutory marriage betweenThomas . . . and Nikki . . . , the participants in the ceremony were bothmen.”

(2) No informal marriage could have existed between Thomas and Nikkiafter the genital reassignment surgery in 2008 because “Nikki . . . tookno steps to legally change her sex from male to female until July 15,2010,” after Thomas’ s death.

(3) No informal marriage could exist because, under Littleton , a person’s

4 We note that o n appeal, Nikki asserts that the motion was “incorrectly styled as a ‘no evidence’motion [because] . . . in substance the motion was unmistakably a traditional motion.” We also note thatthere was no evidence attached to the motion or referenced therein. We disagree with Nikki’s assertionthat the motion was a traditional motion. See T EX. R. C IV. P. 166a(c). In form and substance, the motion

was a no evidence motion. See T EX. R. C IV. P. 166a(i).5 The following exhibits were attached to Heather’s response: (1) affidavit of Edward C. Burwell;

(2) Nikki’s responses to requests for admissions; (3) certificate of live birth of Justin Graham Purdue; (3)application for name change for Justin Graham Purdue; (4) order granting the application for name change;(5) Nikki’s application for amendment of birth record to reflect the name change; (6) Nikki’s memorandumof points and authorities in support of her petition for a change of gender; (7) Nikki’s amen ded birthcertificate; and (8) a transcript of the California court’s proceedings regarding Nikki’s request for a legalchange of gender.


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gender, while subject to physical manipulation for the purpose ofassuming the appearance of an alternate gender, is nonethelessgoverned by the gender of the person at birth, as determined by bothanatomical and genetic examinations of the person. See Littleton , 9S.W.3d at 224.

D. Simona’s Response to Nikki’s Motion

On April 21, 2011, Simona filed her response to Nikki’s motion for summary

judgment with evidence attached. 6 In her response, Simona argued that a “no evidence”

summary judgment was improper because Nikki had the burden of proof to establish the

existence of an informal marriage. See State v. Mireles , 904 S.W.2d 885, 888 (Tex.

App. —Corpus Christi 1995, pet. ref’d) (“The burden of proof is on the one seeking toestablish the e xistence of such a marriage.”); but see TEX. F AM. CODE ANN. § 1.101 (West

2006) (“[E]very marriage entered into in this state is presumed to be valid unless expressly

made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled

as pro vided by that chapter.”).

E. Simona’s Motion for Summary Judgment

Also on April 21, 2011, Simona filed a traditional motion for summary judgment,

with attached evidence, 7 asserting the following grounds for summary judgment:

6 The evidence attached to Simona’s response was the same evidence attached to her traditionalmotion for summary judgment set forth in footnote 7.

7 The evidence attached to Simona’s motion for summary judgment included the following: (1)certificate of live birth for Justin Graham Purdue dated June 18, 1975; (2) verified pleading of Justin GrahamPurdue in Cause No. 96-07867 in the 245th District Court of Harris County, Texas; (3) order granting name

change in Cause No. 96-07867 in the 245th District Court of Harris County, Texas; (4) amended certificateof live birth of Justin Graham Purdue dated August 21, 1996; (5) Nikki’s memorandum of points andauthorities in support of petition for name change; (6) transcript of hearing on Nikki’s petition for change ofgender dated July 20, 2010; (7) Nikki’s certificate of live birth; (8) marriage license for Thomas and Nikk i;(8) Houston Independent School District records for Justin Graham Purdue; (9) Cypress-FairbanksIndependent School District records for Justin Graham Purdue; (10) Aldine Independent School Districtrecords for Justin Graham Purdue; (11) “medical records of Justin Graham Purdue aka Nikki Purdue akaNikki Araguz aka Nikki Mata from Gulf Coast Medical Center”; (12) “medical records of Justin GrahamPurdue aka Nikki Purdue aka Nikki Araguz aka Nikki Mata from Dr. Juan Garza, Dr. Esther Perez, Houston

Area Co mmunity Services”; (13) “medical records of Justin Graham Purdue aka Nikki Purdue aka Nikki


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(1) The purported marriage between Thomas and Nikki was void becauseat the time of their marriage, both Thomas and Nikki were males. See TEX. F AM. CODE ANN. § 6.204(b).

(2) No informal marriage could exist between Thomas and Nikki after the

date of Nikki’s operation (October 7, 2008) based on Littleton . SeeLittleton , 9 S.W.3d at 230.

(3) The purported marriage is void based on judicial estoppel because Nikkipreviously claimed that she was a male in a separate court proceeding.

See TEX. R. C IV. P. 166a(c).

F. Nikki’s Response to Heather and Simona’s Motions

On May 13, 2011, Nikki filed her response to Heather and Simona’s motions for

summary judgment with evidence attached. 8 In her response, Nikki argued that summary

judgment was improper based on the following grounds:

(1) Littleton was overruled by the 2009 amendment to section 2.005 of theTexas Family Code, which added “an original or certified copy of a courtorder relati ng to the applicant’s name change or sex change” to the listof accept able “proof of identity and age” for purposes of obtaining amarriage license. See T EX. F AM. CODE ANN. § 2.005(b)(8) (West Supp.2013).

(2) Nikki’s gender has always been female, as evidenced by the birthcertificate issued by the State of California on August 30, 2010 statingthat she is “female” and the corresponding judgment of the California

Araguz aka Nikki Mata from Dr. Marci Bowers”; (14) “medical records of Justin Graham Purdue aka NikkiPurdue aka Nikki Araguz aka Nikki Mata from Mount Saint Rafael Hospital”; (15) Nikki’s responses toSimona’s requests for admissions; (16) Nikki’s responses to Simona’s written interrogatories; (17) excerptsof Nikki’s deposition in Cause No. 44,575 in the 329th Judicial District Court of Wharton County, Texas;(18) excerpts of Nikki’s deposition in Cause No. 42,122 in the 329th Judicial District Court of WhartonCounty, Texas; (19) excerpts of Thomas’s deposition in Cause No. 42,122 in the 329th Judicial DistrictCourt of Wharton County, Texas; and (20) Thomas’s cert ificate of live birth.

8 The evidence attached to Nikki’s response included the following: (1) affidavit of Jim Paulsen;(2) affidavit of Collier Cole, Ph.D.; (3) Nikki’s birth certificate; (4) Texas Family Code Section 2.005; (5)Nikki’s affidavit; (6) Simona’s exhibit F; (7) Nikki’s jail records stating that she is “F” or female; (8) Thomasand Nikki’s application for a marriage license; (9) 00112 of Houston Community Service medical records;(10) excerpts from the California health and safety code; (1 1) Steve Chelotti’s affidavit; (12) marriagelicense for Thomas and Nikki; (13) Nikki’s Texas driver’s license; (14) marriage compact of Nikki andThomas; (15) California court order for change in Nikki’s birth certificate; and (16) Dr. Bower’s medicalreport.


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court, to which the court must give full faith and credit by ruling that theother two birth certificates issued by the State of California in 1975 and1996, respectively, and her discov ery answers are a “nullity” that cannotbe proper summary judgment evidence. See U.S. C ONST . art. IV, § 1. 9

(3) Nikki was female at the time of the ceremonial marriage becauseaccording to the World Professional Association for Transgender Health(“WPATH”) standards of care, she “successfully transitioned” to thefemale sex years before she met Thomas. 10

(4) Nikki was female prior to her genital reassignment surgery, as evidencedby her medical records prepared by Marci Bowers, M.D. 11

(5) An informal marriage existed between Thomas and Nikki. See TEX. F AM. CODE ANN. § 2.401(a).

(6) Simona did not plead judicial estoppel.(7) The Equal Protection clause of the Fourteenth Amendment to the United

States Constitution requires Texas to recognize “a post -operativetransgendered individual’s current sex.” See U.S. C ONST . amend. XIV,§ 1.

G. The Trial Court’s Ruling

On May 26 , 2011, the trial court granted Heather and Simona’s traditional motions

for summary judgment and denied Nikki’s no evidence motion for summary judgment.

9 In connection with this assertion, Nikki relies on section 103430(d) of the California Health andSafety Code, which states in relevant part that “[n]o reference shall be made in the new birth certificate [fora registrant whose sex has been surgically altered] . . . that it is not the original birth certificate of theregistrant.” C AL. HEALH & S AFETY CODE § 103430(d).

10 Nikki relies on the affidavit of Collier Cole, Ph.D., a Texas licensed clinical psychologist and fullprofessor in the University of Texas Medical Branch, Galveston’s Department of Psychiatry and BehavioralSciences, who states that because Nikki “pursue d this transition in accordance with the standards of care

of the World Professional Association for Transgender Health, [he] regard[s] her medically andpsychologically as female.” He also states that “[s]urgery per se is not the definitive point that ma kessomeone female.” According to Dr. Cole, “it is completion of real life experiences which documents suchshe had this condition at birth, recognized such as she grew up, and took the steps to resolve this issue.”

11 Nikki relies on the medical records prepared by Marci Bowers, M.D. in connection with her“genital reassignment surgery” or “neocolporrhaphy.” The records indicate a preoperative andpostoperative diagnosis of “gender dysphoria, male to female transexualism.” The records describe Nikkias “a 33 year old, phenotypic female, who has followed the WPATH Standards of Care.” Based on aphysical examination, Dr. Bowers described Nikki as a “[p]leasant thin woman in no apparent distress.”


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See TEX. R. C IV. P. 166a(c), (i). The trial court’s judgment declares that Thomas was not

married on the date of his death and that any purported marriage between Thomas and

Nikki was void as a matter of law. The remaining issues pertaining to the estate were

severed from this cause, and the trial court’s judgment became f inal and appealable.

III. ISSUES ON APPEAL

On appeal, Nikki argues that the trial court erred in granting summary judgment for

the following reasons:

(1) Thomas and Nikki’s marriage was valid because the uncontrovertedsummary judgment evidence established that Nikki was female.

(2) Thomas and Nikki’s marriage was validated by the 2009 amendmentsto the Texas Family Code.

(3) Thomas and Nikki’s marriage was valid und er the United States andTexas Constitutions, considering that —

a. The California judgment and birth certificate identifying Nikki’s sex asfemale are entitled to full faith and credit in Texas, and

b. The trial court’s judgment invalidating the marriage violates Nikki’srights under the Texas Equal Rights Amendment and the Fourteenth

Amendment to the United States Constitution.

(4) Thomas and Nikki’s marriage would be valid in most jurisdictions .

(5) The Littleton decision is not controlling.

(6) The judgment cannot be affirmed based on judicial estoppel.

(7) Even if Thomas and Nikki’s marriage were incorrectly deemed a “samesex” marriage, Texas courts cannot constitutionally declare it void onthat basis.

IV. S TANDARD OF REVIEW

“We review a summary judgment de novo.” Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009) (citing Provident Life & Accident Ins.

Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003)). “We review the evidence presented in


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the motion and response in the light most favorable to the party against whom the

summary judgment was rendered, crediting evidence favorable to that party if reasonable

jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Id .

(citing City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer &

Pritchard, P.C ., 73 S.W.3d 193, 208 (Tex. 2002)). “The party moving for traditional

summary judgment bears the burden of showing no genuine issue of material fact exists

and it is entitled to judgment as a matter of law.” Id . (citing T EX. R. C IV. P. 166a(c); Knott ,

128 S.W.3d at 216). “When both sides move for summary judgment and the trial court

grants one motion and denies the other, we review the summary judgment evidencepresented by both sides and determine all questions presented.” Id . (citing Comm’rs

Court of Titus County v. Agan , 940 S.W.2d 77, 81 (Tex. 1997)). “In such a situation, we

render the judgment as the trial court should have rendered.” Id . (citing Agan , 940 S.W.2d

at 81).

In this case, the parties filed competing motions for summary judgment in which

each litigant asserted that there were no genuine issues of material fact; however, the

Texas Supreme Court has explained as follows:

When both sides file motions for summary judgment, each litigant in supportof his own motion necessarily takes the position that there is no genuineissue of fact in the case and that he is entitled to judgment as a matter oflaw. While it does not necessarily follow that when both sides file motionsfor summary judgment there is no genuine fact issue in the case, it doesindicate that the legal controversy is one which generally turns upon aninterpretation of some rule of law and both sides are prepared to presenttheir respective contentions with reference thereto.

Ackermann v. Vordenbaum , 403 S.W.2d 362, 364 – 65 (Tex. 1966); see also Coker v.

Coker , 650 S.W.2d 391, 392 (Tex. 1983) (reversing summary judgment and remanding

for trial even though both sides moved for summary judgment and asserted settlement


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agreement was unambiguous).

V. A PPLICABLE LAW

The Texa s Constitution defines a marriage as “the union of one man and one

woman.” See TEX. CONST . art. I, § 32(a). Furthermore, the Texas Family Code provides

that “[a] marriage between persons of the same sex or a civil union is contrary to the

public policy of this state and is void in this state.” TEX. F AM. CODE ANN. § 6.204(b).

Consistent with the foregoing, the Texas Family Code states that “[a] license may not be

issued for the marriage of persons of the same sex,” id . § 2.001(b) (West 2006), and it

also provides that an informal marriage may exist only between a “man and woman.” Id .§ 2.401(a).

“[I]n order to provide stability for those entering into the marriage [relationship] in

good faith . . . it is the policy of this state to preserve and uphold each marriage against

claims of invalidity unless a strong reason exists for holding the marriage void or

voidable.” Id . § 1.101 (West 2006). “The presumption in favor of the validity of a marriage

. . . is one of the strongest, if, indeed, not the strongest, known to law.” Tex. Employers’

Ins. Ass’n v. Elder , 282 S.W.2d 371, 373 (Tex. 1955). “The presumption is, in itself,

evidence, and may even outweigh positive evidence to the contrary.” Id . “The strength

of the presumption increases with the lapse of time, acknowledgments by the parties to

the marriage, and the birth of children.” Id . Thus, “the well -established rule [is] that, when

a marriage has been duly established its legality will be presumed, and the burden of

proving the contrary is upon the one attacking its legality.” Id . However, because same

sex marriages are “expressly made void by Chapter 6 [of the Texas Family Code],” they

are not presumed to be valid. T EX. F AM. CODE ANN. § 1.001.


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VI. DISCUSSION

“Over the course of the last decades, States with same -sex prohibitions have

moved toward abolishing them.” Lawrence v. Texas , 539 U.S. 558, 570 (2003). Twelve

states and the District of Columbia have “decided that same -sex couples should have the

right to marry and so live with pride in themselves and their union and in a status of

equality with all other married persons. ” United States v. Windsor , 133 S.Ct. 2675, 2689

(2013). In 2013, the United States Supreme Court struck down the provision of the

Delgado v Araguz: Petition for Review Filed on Behalf of Heather Delgado

Documents

Transcript of Delgado v Araguz: Petition for Review Filed on Behalf of Heather Delgado