Delgado v Araguz: Reply in Support of Petition for Review Filed on Behalf of Heather Delgado, Et Al.

8/9/2019 Delgado v Araguz: Reply in Support of Petition for Review Filed on Behalf of Heather Delgado, Et Al.

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No. 14-0404

IN THE SUPREME COURT OF TEXAS

HEATHER DELGADO, in her capacity a/n/f TREVOR ARAGUZ

and TYLER ARAGUZ, and SIMONA LONGORIA,

Petitioners,

v.

NIKKI ARAGUZ,

Respondent.

REPLY IN SUPPORT OF PETITION FOR REVIEW

W. Mark Lanier

State Bar No.: 11934600

Kevin P. Parker

State Bar No.: 15494020 Natalie V. Armour


Lanier Law Firm

6810 FM 1960 West

Houston, Texas 77069

Telephone: 713/659-5200

Facsimile: 713/659-2204

[email protected]

Chad P. Ellis

State Bar No. 24003278

Ellis & Irwin, L.L.P.

302 Jackson StreetRichmond, Texas 77406

Telephone: 832/595/1242

Facsimile: 832/595/1906

[email protected]

Frank E. Mann


Law Offices of Frank E. Mann

5151 Katy Freeway, Suite 140

Houston, Texas 770071Telephone: 713/524-6868

Facsimile: 713/524-1931

[email protected]

December 1, 2014

FILED

14-0404

12/1/2014 11:15:59 AM

tex-3326572

SUPREME COURT OF TE

BLAKE A. HAWTHORNE,


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IDENTITY OF PARTIES AND COUNSEL

COUNSEL FOR PETITIONER HEATHER DELGADO

W. Mark Lanier Frank E. Mann

State Bar No.: 11934600 State Bar No.: 12924250

Kevin P. Parker Law Offices of Frank E. Mann

State Bar No.: 15494020 5151 Katy Freeway, Suite 140

Natalie V. Armour Houston, Texas 77007

State Bar No.: 24070785 Telephone: 713/524-6868

Lanier Law Firm Facsimile: 713/524-1931

6810 FM 1960 West [email protected]


Telephone:713/659-5200

Facsimile: 713/[email protected]

COUNSEL FOR PETITIONER SIMONA LONGORIA

Chad P. Ellis



302 Jackson Street

Richmond, Texas 77406

Telephone: 832/595/1242

Facsimile: 832/595/1906

[email protected]

COUNSEL FOR RESPONDENT NIKKI ARAGUZ

Kent Rutter Kenneth E. Broughton

State Bar No. 00797364 State Bar No. 03087250Haynes and Boone, LLP Reed Smith, LLP

1221 McKinney Street, Suite 2100 811 Main Street, Suite 1700

Houston, Texas 77010 Houston, Texas 77002

Telephone: 713/547-2000 Telephone: 713/469-3800

Fax: 713/547-2600 Fax: 713/469-3899

[email protected] [email protected]


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Phyllis Randolph Frye Mitchell Katine

State Bar No. 07496600 State Bar No. 11106600

Darrell Steidley John Nechman

State Bar No. 24013559 State Bar No. 24010261

Frye, Oaks & Benevidez, PLLC Katine & Nechman, L.L.P.

3315 Mercer 1111 North Loop West, Suite 180

Houston, Texas 77027 Houston, Texas 77008

Phone: 713/227-1717 Telephone: 713/808-1000

Fax: 713/522-2610 Fax: 713/808-1107



Alene Ross Levy


Alene Levy Law Firm, P.L.L.C.1701 Hermann Drive, Apt. 3403


Telephone: 832/831-3113

[email protected]

COUNSEL FOR INTERVENOR NATIONAL UNION FIRE INSURANCE COMPANY IN

THE TRIAL COURT

Phillip Bechter


Schwartz, Junell, Greenberg & Oathout, L.L.P.

909 Fannin, Suite 2700


Telephone: 713/752-0017

Fax: 713/752-0327

[email protected]


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TABLE OF CONTENTS

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

INDEX OF AUTHORITIES ...................................................................................... v

ARGUMENT ............................................................................................................. 1

I. THE COURT OF APPEALS’ DECISION CONFLICTS WITH L ITTLETON .......... 1

II. THE 2009 AMENDMENTS TO §2.005 DID NOT LEGISLATIVELY

OVERRULE L ITTLETON ............................................................................4

A. Section 2.005 has Never Purported to Define Marriageor Create Rights Regarding Marriage ...................................... 5

B. The Term “Identity” Does Not Mean “Sexual Identity” .......... 5

III. WHETHER NIKKI PRESENTED U NCONTROVERTED EVIDENCE THAT

SHE HAD A “SEX CHANGE” IS IMMATERIAL ........................................... 8

IV. THE COURT OF APPEALS I NCORRECTLY HELD THAT THE 2009

AMENDMENTS COULD BE R ETROACTIVELY APPLIED TO VALIDATE NIKKI’S VOID 2008 MARRIAGE .............................................................. 9

V. POTENTIAL HOLDINGS BY FEDERAL COURTS DO NOT MOOT THE

ISSUE BEFORE THIS COURT ..................................................................... 9

PRAYER .................................................................................................................. 11

CERTIFICATE OF SERVICE ................................................................................ 13

CERTIFICATE OF COMPLIANCE ....................................................................... 15


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INDEX OF AUTHORITIES

CASES PAGE(S)

City of Waco v. Kelley,

309 S.W.3d 536 (Tex. 2010) ...................................................................................... 4

Dutcher v. Owens,

647 S.W.2d 948 (Tex. 1983) ...................................................................................... 7

In re Estate of Araguz,

No. 13-11-00490-CV, 2014 WL 576085

(Tex. App.—Corpus Christi Feb. 13, 2014) .............................................................. 9

Helena Chemical Co. v. Wilkins,47 S.W.3d 486 (Tex. 2001) ........................................................................................ 4

Littleton v. Prange,

9 S.W.3d 223 (Tex. App.—San Antonio 1999, pet. denied) ..................... 1, 2, 3, 4, 8

In re Marriage of J.B. and H.B.,

326 S.W.3d 654 (Tex.App. —Dallas 2010, pet. granted) ................................. 10, 11

Penrod Drilling Corp. v. Williams,

868 S.W.2d 294 (Tex. 1993) .................................................................................... 10

Texas Employment Commission v. Holberg,

440 S.W.2d 38 (Tex. 1969) ........................................................................................ 7

CONSTITUTIONAL PROVISIONS PAGE(S)

TEX. CONST. art. I, §32 ............................................................................................... 4

STATUTES & RULES PAGE(S)

TEX. FAM. CODE §2.001 ............................................................................................. 3

TEX. FAM. CODE §2.004 ............................................................................................. 6


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TEX. FAM. CODE §2.005 ........................................................................ 1, 3, 4, 5, 6, 7

TEX. FAM. CODE §6.204 ............................................................................................. 4

TEX. GOV’T CODE §311.011 ................................................................................... 4, 5

TEX. GOV’T CODE §311.023 ....................................................................................... 5


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ARGUMENT

I. THE COURT OF APPEALS’ DECISION CONFLICTS WITH L ITTLETON .

Nikki argues that the court of appeals’ decision does not conflict with

Littleton because the legal landscape of Texas marriage law has changed since

Littleton. According to Nikki, a transgender marriage that would have violated the

constitutional and statutory prohibitions against same-sex marriage in 1999 would

not violate those prohibitions today because the 2009 amendments to §2.005

created the right of transgender marriage. In support, Nikki spins a remarkable tale

regarding the evolution of Texas marriage law that occurred in the decade

following Littleton. But that tale is unsupported by the events leading up to the

amendments and the context of their enactment.

Initially, Nikki attempts to distract the Court by arguing that Littleton

“cleared the path for a transsexual woman to marry another woman,” which Nikki

contends would violate the same-sex marriage prohibition.1 But this argument

misunderstands Littleton. In Littleton, the court held that gender is immutably

determined at birth.2 Although “Christie [Littleton] is medically termed a

transsexual,” “as a matter of law . . . Christie Littleton is a male.”3 Under Littleton,

a person that was born male remains male as a matter of law for his lifetime,

1 Response to Petition for Review (“Response”) at 4.

2 Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App.—San Antonio 1999, pet. denied).

3 Id. at 225, 231 (emphasis added).


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regardless of his becoming medically a transsexual woman. Therefore, such a

male’s marriage to a woman would fall within Texas’ definition of marriage.

Next, Nikki alleges that the 1999 Littleton decision was the reason that the

Texas County and District Clerks’ Association recommended “a wide-ranging

‘clean up’ bill” to the legislature, that the purpose of the Association’s

recommendation was to secure clarity on the legality of transgender marriage, and

that the legislature enacted the 2009 amendments with the intent to overrule

Littleton and legalize transgender marriage.4 Notably, Nikki fails to support these

allegations with any evidence or legislative history.

As Nikki points out, Littleton noted the complete absence of legislative

guidelines governing marriages involving transsexuals and when, if ever,

transsexuals would be recognized as having successfully changed their sex.5

In our system of government it is for the legislature, should it choose

to do so, to determine what guidelines should govern the recognition

of marriages involving transsexuals. . . . When or whether the

legislature will choose to address this issue is not within the

judiciary's control.

It would be intellectually possible for this court to write a protocol for

when transsexuals would be recognized as having successfully

changed their sex. Littleton has suggested we do so . . . . But this

court has no authority to fashion a new law on transsexuals, oranything else. We cannot make law when no law exists: we can only

4 Response at 4.

5 Id.


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interpret the written word of our sister branch of government, the

legislature.6

The legislature in enacting the 2009 amendments did not answer Littleton’s

call for guidelines. The amendments do not specify when transsexuals should be

recognized has having changed their sex. The amendments do not impose a

surgical test or any other test for establishing when the sex change occurs. The

fact that the amendments do not provide the guidance requested in Littleton

signifies that the legislature did not have Littleton in mind when it amended

§2.005.

In fact, the court of appeals’ decision represents a sea-change in Texas

marriage law. Until that decision, the law in Texas very clearly and consistently

provided that gender was immutably determined at birth and prohibited

transgender marriage. The amendments, when considered in light of the law in

effect at the time and in the historical context of Texas marriage law, undoubtedly

did not expand the definition of marriage in Texas to include transgender marriage.

In 1997, the legislature provided that marriage occurs between “a man and a

woman” and it prohibited the issuance of a license “for the marriage of persons of

the same sex.”7 In 2003, the legislature made clear that it intended to confine

marriage to opposite-sex couples and to exclude any other relationship which did

6 Littleton, 9 S.W.3d at 230.

7 TEX. FAM. CODE §2.001.


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not meet the statutory definition of marriage.8 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.”9

Under Littleton, because Nikki was born male she is immutably male. Since

Nikki’s marriage to Thomas, a male, constitutes same-sex marriage it is statutorily

and constitutionally prohibited. Because the court of appeals’ decision conflicts

with Littleton, the Court should grant review in this case.

II. THE 2009 AMENDMENTS TO §2.005 DID NOT LEGISLATIVELY OVERRULE

L ITTLETON .

Even though Nikki asserts that “[t]here is no need for statutory

construction,”10

she effectively concedes the need by discussing the meaning of the

term “identity” and legislature’s intent when it enacted the amendments.11

In

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

legislature’s intent, which should be gleaned primarily from the plain meaning of

the words in the statute.12

“Words and phrases shall be read in context and

8

TEX. FAM. CODE §6.204.9 TEX. CONST., art. I, §32.

10 Response at 5.

11 Id.

12 TEX. GOV’T CODE §311.011; City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010);

Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493-94 (Tex. 2001).


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construed according to the rules of grammar and common usage.”13

Courts should

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.14

A. Section 2.005 has Never Purported to Define Marriage or Create

Rights Regarding Marriage.

The 2009 amendments to §2.005 did not create the right of transgender

marriage. At the outset, §2.005 has never purported to define marriage or create

rights regarding marriage. Rather, it merely lists documents that an applicant for

marriage license may use to prove identity. Nikki completely ignores this point

and claims the 2009 amendments to §2.005 wholly overhauled Texas marriage law

by redefining marriage and creating the right of transgender marriage. When the

rules of statutory construction are applied to the amendments, it is clear the

legislature did not intend to redefine the terms man, woman, marriage, and same

sex as they are used in the marriage statutes and the constitution and legalize

transgender marriage.

B. The Term “Identity” Does Not Mean “Sexual Identity.”

Nikki’s position that the 2009 amendments to §2.005 created a right of

transgender marriage hinges on her argument that the term “identity” means

13 §311.011.

14 TEX. GOV’T CODE §311.023.


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acknowledged, a court “cannot draw inferences of the legislature’s intent from the

failure of bills to pass.”20

“Bills introduced in the legislature to amend statutes

often fail to become enacted for reasons wholly unrelated to the Legislature’s view

of what the original statute does or does not mean.”21

Nikki’s position that the 2009 amendments legalized transgender marriage is

premised upon two assumptions that fail to pass muster. It assumes that every

transgendered person who seeks to enter a marriage desires to marry a person of

the same sex as he or she was born. This is not the case, as evidenced by the

example that Nikki included in the clerk’s record of a man who had sex

reassignment surgery and then sought to marry a woman.22

It also assumes that the

legislature intended to change the law but intentionally failed to define when a sex

change occurs or how to obtain an order relating to a sex change in a Texas state

court.

Nikki asks this Court to disregard the historical context and the

circumstances under which the 2009 amendments were enacted and the purpose of

§2.005. Until the court of appeals rendered its opinion, the law in Texas very

clearly and consistently provided that gender was immutably determined at birth

and prohibited transgender marriage as constituting same-sex marriage. Because

20 Dutcher v. Owens, 647 S.W.2d 948, 950 (Tex. 1983).

21 Texas Employment Commission v. Holberg, 440 S.W.2d 38, 42 (Tex. 1969).

22 6CR 1591-92.


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the court of appeals’ decision represents a judicial renovation of Texas marriage

law that is wholly unsupported by Texas statutory and constitutional provisions

governing marriage, the Court should grant review and reverse the court of

appeals’ judgment.

III. WHETHER NIKKI PRESENTED UNCONTROVERTED EVIDENCE THAT SHE

HAD A “SEX CHANGE” IS IMMATERIAL.

Nikki attempts to distract this Court by arguing that review should be denied

because she “presented uncontroverted expert proof that she had a ‘sex change.’”23

Whether Nikki had a sex change is immaterial to the determination whether the

2009 amendments legislatively overruled Littleton and whether Nikki’s 2008

marriage to Thomas was valid. If the amendments did not legislatively overrule

Littleton, then gender is immutably determined at birth. Because Nikki was born

male, she is immutably male and cannot marry another male.

On the other hand, if the amendments did legislatively overrule Littleton,

then the amendments implicitly created the right for a transgendered person to

marry a person of the same birth sex under some undefined circumstances. Even if

that were the case, Nikki has not conclusively established that she was female

when she attempted to marry Thomas in 2008. As Petitioners pointed out during

the summary judgment proceedings, Nikki was born without female sexual or

reproductive organs and with male organs, which she had until the time of her

23 Response at 9.


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post-wedding sex reassignment surgery in 2008.24

The court of appeals

acknowledged this evidence and held that it “was enough to raise a fact issue about

whether Nikki was male during the marriage . . . .”25

If the petition is not granted,

the case will be remanded so that the parties can engage in protracted litigation

over Nikki’s gender without any legislative guidance as to the standards for

making that determination.

IV. THE COURT OF APPEALS INCORRECTLY HELD THAT THE 2009

AMENDMENTS COULD BE RETROACTIVELY APPLIED TO VALIDATE

NIKKI’S VOID 2008 MARRIAGE.

Nikki argues that the court of appeals did not retroactively apply the 2009

amendments.26

However, by holding that the 2009 amendments created a right of

transgender marriage and remanding the case for a factual determination of Nikki’s

gender, the court of appeals’ necessarily held that the 2009 amendments could be

retroactively applied to validate Nikki’s void 2008 marriage. For the reasons

stated in the Petition for Review, the court’s retroactive application was improper.

V. POTENTIAL HOLDINGS BY FEDERAL COURTS DO NOT MOOT THE ISSUE

BEFORE THIS COURT.

Nikki argues that since the issue of same-sex marriage is currently before the

Fifth Circuit, and since the United States Supreme Court may at some point

24 1CR 162-63; 3CR 606; 2CR 456, 541; 4CR 924, 928.

25 In re Estate of Araguz, No. 13-11-00490-CV, 2014 WL 576085, *13 (Tex. App.—Corpus

Christi Feb. 13, 2014).

26 Response at 12.


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consider the issue, the legality of transgender marriage “is likely to become moot

before this Court could address it.”27

Nikki’s argument is wrong for two reasons.

First, it misunderstands the law of precedent. “While Texas courts may certainly

draw upon the precedents of the Fifth Circuit, or any other federal or state court, in

determining the appropriate federal rule of decision, they are obligated to follow

only higher Texas courts and the United States Supreme Court.”28

Second, Nikki’s argument urges this Court to speculate what changes in law

may occur and render a decision based on that speculation. It is not a foregone

conclusion that the U.S. Supreme Court will grant certiorari on the same-sex

marriage issue or that it will decide it in her favor. If the issue goes before the

Supreme Court, is decided as Nikki anticipates, and that decision moots the central

issue in this case, then this Court can consider the mootness questions that Nikki

raises. Conversely, if the issue does not go before the Supreme Court, or if it is not

decided as Nikki anticipates, then this Court will have lost the opportunity to

clarify the legality of transgender marriage under Texas law.

Further, the central issue in this case goes hand-in-hand with that in In re

Marriage of J.B., which is presently pending before this Court and will likely be

decided before the U.S. Supreme Court grants certiorari and renders an opinion on

27 Id. at 12-14.

28 Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993).


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the same-sex marriage issue.29

The Court should not deny review in this case

based upon speculated changes in the law that may occur in the future, but should

instead determine mootness questions based on existing and binding precedent.

This Court can revisit the mootness question after deciding J.B.

PRAYER

For the reasons stated in the Petition for Review and in this Reply,

Petitioners pray that this Court grant review of this case, set if for oral argument,

reverse the judgment, and remand the case to the court of appeals for it to consider

Nikki’s remaining points of error.

Respectfully submitted,

By: /s/ Kevin P. Parker

W. Mark Lanier

SBN 11934600

Kevin P. Parker

SBN: 15494020

Natalie Van Houten Armour

SBN: 24070785

Lanier Law Firm P.C.

P.O. Box 691448

6810 FM 1960 Rd. West


Telephone: (713) 659-5200Fax: (713) 659-2204

[email protected]

29 In re Marriage of J.B., 326 S.W.3d 654 (Tex. App.—Dallas 2010, pet. granted).


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Frank E. Mann


Law Offices of Frank E. Mann

5151 Katy Freeway, Suite 140


Telephone: 713/524-6868

Facsimile: 713/524-1931

[email protected]

ATTORNEYS FOR APPELLEE,

HEATHER DELGADO IN HER

CAPACITY A/N/F OF TREVOR

ARAGUZ AND TYLER ARAGUZ

By: /s/ Chad P. Ellis, by permission

Chad P. Ellis



302 Jackson Street

Richmond, Texas 77406

Telephone: 832/595/1242

Facsimile: 832/595/1906

[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 1st day of December,

2014, on the following:

Counsel for Respondent, Nikki Araguz:

Kent Rutter

Haynes and Boone, LLP

1221 McKinney Street, Suite 2100


Kenneth E. Broughton

Reed Smith, LLP

811 Main Street, Suite 1700


Alene Ross Levy

Alene Levy Law Firm, P.L.L.C.

1701 Hermann Drive, Apt. 3403


Phyllis Randolph Frye

Darrell Steidley

Frye, Oaks & Benevidez, PLLC

3315 Mercer


Mitchell Katine

John Nechman

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



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Counsel for National Union Fire Insurance Company:

Phillip Bechter

Schwartz, Junell, Greenberg & Oathout, L.L.P.

909 Fannin, Suite 2700


/s/ Kevin P. Parker

Kevin P. Parker

[email protected]


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CERTIFICATE OF COMPLIANCE WITH RULE 9.4

This brief complies with the type-volume limitation of TEX. R. APP. P

9.4(i)(2)(B) because this brief contains 2,397 words, excluding the parts of the

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

/s/ Kevin P. Parker

Kevin P. Parker

[email protected]

Attorney for Petitioner, Heather Delgado

Dated: December 1, 2014

Delgado v Araguz: Reply in Support of Petition for Review Filed on Behalf of Heather Delgado, Et Al.

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