Naylor v. Daly Respondant's Brief On The Merits - 10172011

No.
11-0114

In The Supreme Court of Texas

The State of Texas,
Petitioner,

v.

Angelique Naylor and Sabina Daly,
Respondents.

On Petition for Review from the Third Court of Appeals at Austin, Texas
Case No. 03-10-00237-CV

Respondents Joint Response
to States Brief on the Merits

James J. Scheske (SBN 17745443) Robert B. Luther (SBN 12704000)
Jason P. Steed (SBN 24070671) Law Offices of
Akin Gump Strauss Hauer Robert B. Luther, P.C.
& Feld LLP 1800 Rio Grande
300 West 6th St., Suite 1900 Austin, Texas 78701
Austin, Texas 78701 Telephone: (512) 477-2323
Telephone: (512) 499-6200 Facsimile: (512) 478-1824
Facsimile: (512) 499-6290 Email: rbluther@luthlaw.com
Email: jscheske@akingump.com
Email: jsteed@akingump.com
Counsel for Respondent Counsel for Respondent
Angelique Naylor Sabina Daly
FILED
IN THE SUPREME COURT
OF TEXAS
11 October 17 P6:23
BLAKE. A. HAWTHORNE
CLERK
ii

Identity of Parties and Counsel
Petitioner
The State of Texas

Counsel for Petitioner
James D. Blacklock
Assistant Solicitor General
State Bar No. 24050296
Office of the
Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Telephone: (512) 936-1700
Facsimile: (512) 474-2697

Respondent
Angelique Naylor

Counsel for Respondent

Appellate Counsel:
James J. Scheske (SBN 17745443)
Jason P. Steed (SBN 24070671)
Akin Gump Strauss Hauer
& Feld LLP
300 West 6th St., Suite 1900
Austin, Texas 78701
Telephone: (512) 499-6200
Facsimile: (512) 499-6290

Trial Counsel:
Jennifer R. Cochran (SBN 24065057)
Law Office of
Jennifer R. Cochran
13062 Hwy. 290 West, Suite 201
Austin, Texas 78737
Telephone: (512) 615-3584
Facsimile: (512) 236-5303
Email: jencochranlaw@gmail.com
iii

Respondent
Sabina Daly


Robert B. Luther (SBN 12704000)
Law Offices of
Robert B. Luther, P.C.
1800 Rio Grande
Austin, Texas 78701
Telephone: (512) 477-2323
Facsimile: (512) 478-1824
Email: rbluther@luthlaw.com

iv

Table of Contents
Identity of Parties and Counsel ........................................................................................ ii
Index of Authorities .......................................................................................................... vi
Statement of the Case ..................................................................................................... xiv
Statement of Jurisdiction ................................................................................................ xv
Issues Presented .............................................................................................................. xvi
Statement of Facts ............................................................................................................. 2
Summary of the Argument ............................................................................................... 7
Argument ............................................................................................................................ 9
I. Because no basis for jurisdiction exists under Tex. Govt Code
22.001(a), this Court lacks jurisdiction over this appeal. .................................. 9
II. Because the State cannot show it has standing to intervene under any
of the three established bases for intervention, the Court should affirm
the court of appeals decision or deny the States petition for review. ..............11
A. The State admits it cannot intervene under CPRC 37.006(b). ......... 12
B. The State cannot intervene under TRCP 60. ......................................... 13
C. The State now concedes that it cannot intervene under the
virtual-representation doctrine. ............................................................ 14
D. The State cannot intervene by conflating 37.006(b) with
TRCP 60. .................................................................................................... 16
E. The State cannot intervene based on equitable considerations. ......... 20
III. If the Court creates a basis for the State to intervene, and reaches the
States jurisdictional arguments, the Court should construe section
6.204 as allowing same-sex couples legally married in another state to
obtain a divorce in Texas, so as to avoid rendering the statute
unconstitutional.................................................................................................... 21
A. As written, section 6.204 of the Family Code does not preclude
Naylor and Daly from obtaining a divorce. ............................................ 21
1. Construing section 6.204 as jurisdictional conflicts with
the plain language of the statute and produces unjust and
unreasonable results. .................................................................... 23
(a) Reading section 6.204 as jurisdictional upends a
century of Texas divorce law. ............................................. 23
v

(b) The plain language of section 6.204 does not
prevent the trial court from hearing and granting
Naylors uncontested petition for divorce. ....................... 26
(c) Construing section 6.204 as depriving trial courts
of jurisdiction over an uncontested divorce
produces unjust and unreasonable results. ...................... 27
2. Construing section 6.204 as permitting a trial court to
grant an uncontested same-sex divorce only furthers the
statutes intent and objective. ....................................................... 29
B. The States construction of section 6.204 violates Naylor and
Dalys rights under the United States Constitution. .............................. 31
1. Because it targets a particular class of persons for
discrimination and because the State can provide no
rational basis for it, the States construction of section
6.204 violates Equal Protection. ..................................................33
(a) Even under the rational-basis standard, the denial
of equal access to divorce is unconstitutional. ................. 35
(b) Because section 6.204 implicates fundamental
rights and targets a particular class of persons for
discrimination, strict scrutiny should apply. ....................38
2. Because it serves to penalize legally-married same-sex
couples who migrate to Texas by denying them equal
access to divorce, section 6.204 violates the right to travel. ..... 42
3. Because it deprives Naylor and Daly of their fundamental
right to a divorce and of their procedural right to be
heard, the States construction of Section 6.204 violates
Due Process. ................................................................................... 43
4. By forcing Naylor and Daly into voidance, the State of
Texas discriminates against the laws of another state and
thereby violates Full Faith and Credit. ........................................ 46
Prayer ............................................................................................................................... 49
Certificate of Service ........................................................................................................ 51
Appendix........................................................................................................................... 52

vi

Index of Authorities
Page(s)
State Cases
Aucutt v. Aucutt,
62 S.W.2d 77 (Tex. 1933) .......................................................................................... 23
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547 (Tex. 2000) ...................................................................................... 24
Bonds v. Foster,
36 Tex. 68 (1871) ........................................................................................................ 34
City of DeSoto v. White,
288 S.W.3d 389 (Tex. 2009) .................................................................................... 27
City of Houston v. Clark,
197 S.W.3d 314 (Tex. 2006) ..................................................................................... 26
City of Rockwall v. Hughes,
246 S.W.3d 621 (Tex. 2008) ....................................................................... 22, 26, 27
City of San Benito v. Rio Grande Valley Gas Co.,
109 S.W.3d 750 (Tex. 2003) .................................................................................... 15
Cramer v. Sheppard,
167 S.W.2d 147 (Tex. 1943) ...................................................................................... 23
Cuneo v. De Cuneo,
24 Tex. Civ. App. 436, 59 S.W. 284 (1900) ............................................................ 24
Dawson-Austin v. Austin,
968 S.W.2d 319 (Tex. 1998) .............................................................................. 25, 30
Dubai Petroleum Co. v. Kazi,
12 S.W.3d 71 (Tex. 2000).......................................................................................... 23
Entergy Gulf States, Inc. v. Summers,
282 S.W.3d 433 (Tex. 2009) ............................................................................. 22, 26
Ex Parte Threet,
160 Tex. 482, 333 S.W.2d 361 (1960) ..................................................................... 24
Farmers Group, Inc. v. Lubin,
222 S.W.3d 417 (Tex. 2007) ..................................................................................... 19
vii

Gray v. Gray,
354 S.W.2d 948 (Tex. Civ. App.Houston 1962, writ dismd) ............................ 24
Guaranty Federal Sav. Bank v. Horeshoe Operating Co.,
793 S.W.2d 652 (Tex. 1990) ................................................................... 11, 13, 14, 20
In the Interest of M.N.,
262 S.W.3d 799 (Tex. 2008) .................................................................................... 27
In re Doe 2,
19 S.W.3d 278 (Tex. 2000) ....................................................................................... 18
In re Estate of Nash,
220 S.W.3d 914 (Tex. 2007) .................................................................................... 22
In re Lumbermens Mut. Cas. Co.,
184 S.W.3d 718 (Tex. 2006) ............................................................. 11, 14, 15, 20, 21
In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. App.Dallas 2010, pet. filed) ................................. 9, 26, 35
In re Union Carbide Corp.,
273 S.W.3d 152 (Tex. 2008) ................................................................... 13, 14, 16, 20
Ivy v. Ivy,
177 S.W.2d 237 (Tex. Civ. App.Texarkana 1943) ........................................ 32, 39
Klein v. Hernandez,
315 S.W.3d 1 (Tex. 2010) ............................................................................. 21, 26, 29
Martin v. Sheppard,
201 S.W.2d 810 (Tex. 1947) ...................................................................................... 23
Mauldin v. Texas State Bd. of Plumbing Examiners,
94 S.W.3d 867 (Tex. App.Austin 2002, no pet.) ................................................ 35
Mireles v. Mireles,
No. 01-08-00499-CV, 2009 WL 884815 (Tex. App.Houston [1st
Dist.] Apr. 2, 2009, pet. denied) ............................................................................. 24
Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Assn,
1 S.W.3d 108 (Tex. 1999) .................................................................................. passim
Narvaez v. Maldonado,
127 S.W.3d 313 (Tex. App.Austin 2004, no pet.) ............................................... 24
viii

Perry v. Del Rio
67 S.W.3d 85 (Tex. 2001) ................................................................................. passim
Reiss v. Reiss,
118 S.W.3d 439 (Tex. 2003) ..................................................................................... 24
Richards v. League of United Latin Am. Citizens,
868 S.W.2d 306 (Tex. 1993) .............................................................................. 39, 42
Schneider v. Rabb,
100 Tex. Civ. App. 211, 97 S.W. 463 (1906) ............................................................ 25
Southwestern Refining Co., Inc. v. Bernal,
22 S.W.3d 425 (Tex. 2000) ...................................................................................... 18
Sullivan v. University Interscholastic League,
616 S.W.2d 170(Tex. 1981)........................................................................................ 37
Terrazas v. Ramirez,
829 S.W.2d 712, 735 (Tex. 1991) ........................................................................ 18, 19
Texas Mut. Ins. Co. v. Ledbetter,
251 S.W.3d 31 (Tex. 2008) ................................................................................. 15, 20
VanDevender v. Woods,
222 S.W.3d 430 (Tex. 2007) .................................................................................... 32
Vinson v. Burgess,
773 S.W.2d 263 (Tex. 1989) ..................................................................................... 23
Whitworth v. Bynum,
699 S.W.2d 194 (Tex. 1985) ............................................................................... 36, 37
Williams v. Texas State Board of Orthotics & Prosthetics,
150 S.W.3d 563 (Tex. 2004) ........................................................................ 22, 26, 38
Worford v. Stamper,
801 S.W.3d 108 (Tex. 1990) ...................................................................................... 11
Zeifman v. Michels,
229 S.W.3d 460 (Tex. App.Austin 2007, pet. denied) ............................... 14, 20
ix

Federal Cases
Attorney General of New York v. Soto-Lopez,
476 U.S. 898 (1986) ................................................................................................... 42
Baker by Thomas v. General Motors Corp.,
522 U.S. 222 (1998) .................................................................................................. 46
Boddie v. Connecticut,
401 U.S. 371 (1971) ................................................................................ 32, 39, 44, 45
Broderick v. Rosner,
294 U.S. 629 (1935) ................................................................................................... 49
Carey v. Population Services International,
431 U.S. 678 (1977) .................................................................................................... 41
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006) ................................................................................... 38
City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ................................................................................................... 34
Dragovich v. U.S. Dept. of the Treasury,
764 F. Supp. 2d 1178 (N.D. Cal. 2011) ..................................................................... 32
Estin v. Estin,
334 U.S. 541 (1948) ............................................................................................ 30, 46
Ford Motor Co. v. Tex. Dept of Transp.,
264 F.3d 493 (5th Cir. 2001) ................................................................................... 35
Frontiero v. Richardson,
411 U.S. 677 (1973) .................................................................................................... 39
Gill v. Office of Personnel Management,
699 F. Supp. 2d 374 (D. Mass. 2010) ............................................................... 29, 33
Green v. Bock Laundry Machine Co.,
490 U.S. 504 (1989) .................................................................................................. 27
In re Balas,
449 B.R. 567 (C.D. Cal. 2011) ............................................................................ 29, 32
x

Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004) ................................................................................... 35
Johnson v. Robinson,
415 U.S. 361 (1974) .................................................................................................... 38
Lawrence v. Texas,
539 U.S. 558 (2003) ..................................................................................... 41, 44, 45
Log Cabin Republicans v. U.S.,
716 F. Supp. 2d 884 (C.D. Cal. 2010) ...................................................................... 33
Loving v. Virginia,
388 U.S. 1 (1967) ................................................................................................. 39, 44
M.L.B. v. S.L.J.,
519 U.S. 102 (1996)............................................................................................. 38, 39
Mass. Bd. of Ret. v. Murgia,
427 U.S. 307 (1976) ............................................................................................ 40, 41
Massachusetts v. USDHHS,
698 F. Supp. 2d 234 (D. Mass. 2010) ..................................................................... 33
Memorial Hospital v. Maricopa County,
415 U.S. 250 (1974) ................................................................................................... 43
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ............................................................. passim
Plyler v. Doe,
457 U.S. 202 (1982) ................................................................................................... 34
Public Citizen v. U.S. Dept. of Justice,
491 U.S. 440 (1989) ................................................................................................... 27
Reno v. Florez,
507 U.S. 292 (1993) ................................................................................................... 44
Romer v. Evans,
517 U.S.620 (1996) ............................................................................................. 35, 38
Saenz v. Roe,
526 U.S. 489 (1999) ................................................................................................... 43
xi

San Antonio ISD v. Rodriguez,
411 U.S. 1 (1973) ........................................................................................................ 40
Sosna v. Iowa,
419 U.S. 393 (1975) ................................................................................................... 43
Thompson v. Thompson,
484 U.S. 174 (1988) ................................................................................................... 47
United States Dept. of Agriculture v. Moreno,
413 U.S. 528 (1973) ............................................................................................. 35, 37
Washington v. Glucksberg,
521 U.S. 702 (1997) ............................................................................................ 44, 45
Watson v. Harrison County Hosp. Assn,
No. 2:08-cv-00081 (E.D. Tex. June 13, 2008)....................................................... 17
Williams v. North Carolina,
325 U.S. 226 (1945) ............................................................................................ 32, 39
Zablocki v. Redhail,
434 U.S. 374 (1978) ................................................................................................... 38
Other State Cases
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) ................................................................................... 35
Christiansen v. Christiansen,
253 P.3d 153 (Wyo. 2011) ......................................................................................... 31
DeLong v. Stark County Dept. of Human Services,
521 N.E.2d 463 (Ohio App. 5th Dist. 1986) ........................................................... 19
Federated Ins. Co. v. Oakland County Road Commn,
715 N.W.2d 846 ......................................................................................................... 19
Florida Dept. of Children and Families v. Adoption of X.X.G.,
45 So.3d 79 (Fla. App.3rd Dist. 2010) .......................................................... 33, 36
Goodridge v. Dept. of Public Health,
798 N.E.2d 941 (Mass. 2003) .................................................................................. 28
xii

Kerrigan v. Commissioner of Public Health,
957 A.2d 407 (Conn. 2008) ...................................................................................... 28
Matter of BASF Corp., Chemical Div.,
533 So.2d 971 (La. App. 1st Cir. 1988) .................................................................... 19
Morrison v. Sadler,
821 N.E. 2d 15 (Ind. Ct. App. 2005) ................................................................. 37, 38
State v. South,
No. 04 CA 38, 2004 WL 2260596, at *3 (Ohio App. 5th Dist. Sep. 20,
2004) ........................................................................................................................... 19
Varnum v. Brien,
763 N.W.2d 862, (Ia. 2009) ..................................................................................... 28

Texas Statutes
Tex. Civ. Prac. & Rem. Code 37.006(b) .......................................................... passim
Tex. Fam. Code 6.204 ......................................................................................... passim
Tex. Fam. Code 6.307 .......................................................................................... 25, 30
Tex. Govt Code 22.001(a) ............................................................................ 1, 7, 9, 10
Tex. Govt Code 402.010 .......................................................................................... 13
Tex. Govt Code 311.021 ............................................................................................ 27
Tex. Govt Code 311.023(1) ....................................................................................... 29
Federal Statutes
28 U.S.C. 1738C ..................................................................................................... 47, 48
Texas Rules
TEX. R. CIV. P. 60 ...................................................................................................... passim
TEX. R. APP. P. 53.4 ........................................................................................................... 21
TEX. R. APP. P. 56.1(b)-(c) ............................................................................................... 10
xiii

Texas Constitutional Provisions
Tex. Const. art. I 32 ..................................................................................................... 32
Tex. Const. art. V 8 ..................................................................................................... 23
U.S. Constitutional Provisions
U.S. Const. Amendment XIV, 1 ............................................................................ 33, 44
U.S. Const. art. IV 1-2 .................................................................................... 46, 47, 48
Other Authorities
6 McDonald & Carlson, Tex. Civ. Prac. App. Prac. 22:12 (2d.ed.) ........................ 19
David E. Engdahl, The Classic Rule of Faith and Credit, 118 Yale L. J . 1584
(2009) ........................................................................................................................... 48
L. Lynn Hogue, The Constitutional Obligation to Adjudicate Petitions for Same-
Sex Divorce and the Dissolution of Civil Unions and Analogous Same-Sex
Relationships: Prolegomenon to a Brief, 41 Cal. Western Intnl L. J . 229, 246-
247 (Fall 2010) ...................................................................................................... 47, 48
Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional
Public Policy Exception, 106 Yale L. J . 1965, 1983 (May, 1997) .............................. 48

xiv

Statement of the Case
Nature of the Case: Angelique Naylor and Sabina Daly were legally married in
Massachusetts in 2004. CR92. In 2009, Naylor
petitioned for a divorce in Texas. CR91-102. The trial
court granted the divorce on February 10, 2010. RR3:115.
The State attempted to intervene the next day, and later
filed a plea to the jurisdiction. CR240, 270.

Trial Court: 126th District Court, Travis County,
The Honorable Scott Jenkins presiding.

Trial Courts
Disposition:
On March 31, 2010, the trial court signed the divorce
decree. See CR404. And the court implicitly denied the
States intervention as untimely. RR4:41-42, 68; States
COA br. at 27 (acknowledging the courts implicit
determination that the intervention was untimely). The
States appeal followed. CR485.

Parties in the
Court of Appeals:
Appellant: State of Texas
Appellees: Angelique Naylor & Sabina Daly

Court of Appeals: Third Court of Appeals, Austin. Before C.J. Jones,
J. Puryear, and J. Henson.

Court of Appeals
Disposition:
The Court of Appeals (Henson, J.) held the State could not
intervene and dismissed the appeal for lack of jurisdiction.
State v. Naylor, 330 S.W.3d 434 (Tex. App.Austin 2011,
pet. filed). No motions for rehearing were filed.
xv

Statement of Jurisdiction
The Supreme Court lacks jurisdiction. None of the bases for jurisdiction
under Government Code section 22.001(a) applies. This case does not involve a
disagreement among the justices of the court of appeals; the court of appeals
dismissal of the States appeal does not conflict with any prior decision of another
court of appeals, or of this Court; the court of appeals dismissal of the States appeal
does not involve the construction or validity of any statute; the case does not involve
state revenue; the railroad commission is not a party; and the court of appeals did
not err in holding the State lacked standing to intervene. See TEX. GOVT CODE
22.001(a)(1)-(6).
Because the court of appeals correctly applied the law and this Court lacks
jurisdiction under section 22.001(a), the Court should deny the States petition for
review. TEX. R. APP. P. 56.1(b)-(c); see Section I, below.

xvi

Issues Presented
1. Whether the Supreme Court lacks jurisdiction over this appeal.

2. Whether the Supreme Court should create law granting the State new
power to intervene in civil lawsuits where no party has challenged the
constitutionality of any law, based merely on the States contention that
the case has constitutional implications.

1

No. 11-0114


The State of Texas,
Petitioner,

v.

Respondents.

Case No. 03-10-00237-CV

Respondents Joint Response
to the States Brief on the Merits

To The Honorable Supreme Court of Texas:
This Court lacks jurisdiction over this appeal because none of the
jurisdictional bases under section 22.001(a) of the Government Code are satisfied.
If the Court exercises jurisdiction anyway, then the only issue properly before this
Court is whether the State can intervene in this divorce action. Because the State
cannot show it has standing to intervene under any of the three established bases
for intervention, the question before the Court is this: Should the Court exercise
jurisdiction where it has none, to create a basis for the State to intervene where it
has none? Under principles of judicial restraint and separation of powers, the
answer is no.
2

Statement of Facts
The court of appeals correctly stated the nature of the case. Op. at 436-38.
1
On February 2, 2010, Naylor filed her First Amended Petition for Divorce.
CR132. The amended petition indicated there were new and continuing disputes
over property. See CR134-39. But under the section titled Petitioners Answer to
Respondents Motion to Declare Marriage Void, Naylor made no arguments and
asserted only a general denial. CR140. Neither party challenged the
constitutionality of any Texas law.

Angelique Naylor and Sabina Dalytwo womenwere legally married in
Massachusetts on September 27, 2004. CR133, 148. They adopted a child together.
CR92. Then, in mid-2007, they separated. CR133. In mid-2009 they reached
agreement over a suit affecting the parent-child relationship (SAPCR). CR32.
Then on December 3, 2009, Naylor filed for divorce in Travis County District Court.
CR91. Daly contested Naylors property claims in part by challenging the validity of
the marriage. CR112-15. The State became aware of the case and monitored it as
it proceeded. States br. at 4.
On February 9, 2010, the trial court heard several pending motions and
addressed Dalys challenge to the marriages validity. RR2:16-31. The court said it
had already start[ed] to grapple with the jurisdictional question. RR2:23.
2

1
Notably, the court of appeals rejectedas unsupported by the recordthe States
characterization of what occurred in the trial court. Op. at 437 n.1.
The
parties worked out a briefing schedule on Dalys challenge to the validity of the
marriage, RR2:16-31, then the court heard extensive arguments and evidence
2
The trial courts grappling with the jurisdictional issue and its readiness to decide the issues
presented contradict the States portrayal of the court as refusing to do anything without full
briefing, then abruptly changing its mind. See States br. at 5-7.
3

relevant to child custody and property issues. RR2:33-211. Throughout the
hearing the trial court repeatedly encouraged the couple to resolve their disputes for
the sake of their child.
3
The next dayFebruary 10, 2010the hearing reconvened and the couple
announced they had resolved a dispute relevant to the SAPCR. RR3:5-6. Later
that morning they resolved another dispute, and told the court they were on the
verge of resolving the last remaining dispute, over the couples former residence.
RR3:62-64.
E.g., RR2:63-64, 81, 88-89.
Relative to this property dispute, Dalys counsel argued the court could issue
interlocutory orders pertaining to property, and indicated Daly was not contending
the trial court lacked jurisdiction altogether over the divorce petition: Our
argument is that [section 6.204 of the Family Code] declares [the marriage] void.
So you have to have jurisdiction to declare something void. RR3:68.
The court responded with doubts that it could issue interlocutory orders
pertaining to property issues if it lacked jurisdiction to hear the divorce petition in
the first place. RR3:69. And citing Dalys motion challenging the marriages
validity, the court said, You argue that I have no jurisdictionthis court has no
jurisdiction to enter any orders, including a divorce decree []. RR3:69-70. But

3
The State cites just 12 pages from the 211-page transcript of the February 9 hearing, to portray
the hearing as though the jurisdictional issue was the courts central concern. See States br. at 5
(citing RR2:15-26). And without any citation to the record the State claims Daly continued to
press her jurisdictional arguments. Id. But in fact, in those 12 cited pages there is nothing to
support the States description of Daly as pressing her jurisdictional arguments; to the
contrary, Dalys counsel hardly spoke except to request time to brief the issue. See RR2:15-26.
Moreover, the State assertsagain without any citation to the recordthat the parties and the
court agreed that the validity of the divorce petition could not be resolved without thorough
briefing and careful consideration. States br. at 5. But nothing in the record supports this
contention.
4

Dalys counsel responded: No, sir, thats not what we argue. [] Thats not what
we argued at all. Id. Dalys counsel explained that the court had jurisdiction to
declare the marriage void. RR3:71-72.
The court heard more testimonythen, before breaking for lunch, the court
again encouraged the parties to find a way to extricate themselves from the mess
created by their property dispute. RR3:100. [T]o give [the parties] maximum
opportunity to resolve some issues, the court adjourned for a two-hour lunch. Id.
When the court reconvened, Dalys counsel announced that the couple had
settled all disputes. RR3:101. The agreement was read into the record. RR3:102-
114. Then Daly indicated she was withdrawing her challenge to the validity of the
marriage, making the petition for divorce uncontested. RR3:113-15. Dalys counsel
asked the judge to grant the divorce, to the extent you believe you have the
power to do so, RR3:110, then Naylor also asked the court to grant the divorce.
RR3:115. The court rendered judgment and granted the divorce. Id.
The State filed its petition in intervention the next day.
4

4
The State continues to accuse the parties and the trial court of conspiring to exclude the State
from this case. See States br. at 6. But as the court of appeals noted in its opinion, these
suggestion[s] of impropriety on the part of the trial court [are] unsupported by the record.
Op. at 437 n.1.
CR240. It then filed
a plea to the jurisdiction on February 23, 2010. CR270. Both Naylor and Daly
opposed the intervention. CR251, 356. And Naylor also opposed the plea to the
jurisdiction. CR364.
In this Court the State has claimed Dalys counsel indicated at oral argument in the court
of appeals that the parties asked the district court to quickly end the litigation upon learning
that the Attorney Generals office was monitoring the case. States br. at 7. But Dalys counsel
said no such thing. There is no record to support this claimand it is worth noting the claim
defies common sense: if Dalys counsel admitted at oral argument that he had asked the trial
court to quickly end the litigation, so as to avoid the States involvement, then why would the
court of appeals say the States characterization of events was unsupported?
5

On March 31, 2010, the trial court convened to enter the uncontested divorce
decree (the only thing [properly] before [the court], RR4:7), but also agreed to
hear arguments on the States intervention. RR4:6-19. The court established,
however, that it would not reach the States plea to the jurisdiction because it was
not set for the March 31 hearingand the State acknowledged this. RR4:7-9.
In its argument, the State relied on the virtual representation doctrine and
Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Assn (El Paso), 1 S.W.3d 108
(Tex. 1999) (per curiam), to argue it could intervene either pre- or postjudgment.
RR4:32, 39-43. The State based its intervention on its interest in defending Texas
law against apparent constitutional attack. CR242. In response, the court posited
thatbecause the divorce had already been granted on February 10the court
could simply not consider the intervention because [it was] not timely, and that
the States virtual-representation argument did not require the court to refuse to
sign the judgment, because under the States theory the State arguably could take
it up on appeal. RR4:42. The States representative responded: Yes. Id. The
State nevertheless tried to persuade the trial court that it should allow the
intervention and consider the States jurisdictional arguments before entering
judgmentbut again the State conceded this was not required. RR4:42-43. The
States representative suggested the appellate courts would want the trial court to
consider the States jurisdictional arguments, RR4:43, and said it was prepared to
argue the jurisdictional issue that day, RR4:45but the trial court reminded the
State that, [e]ven if [the court] permit[ted] the intervention we would have to do
[the plea to the jurisdiction] another day because it was not set on the docket.
6

We all agreed to that. Id. And again the States representative conceded: Yes,
Your Honor.
5
Naylors counsel noted that no constitutional arguments had been raised by
either party, except in response to the States plea to the jurisdiction. RR4:49. The
trial court then expressed grave concern over the States effort to interfere in private
matters where a child was involved. See RR4:60-61, 64.
Id.
The court stated that the judgment was granted on February 10th, and the
court emphasized the finality of that judgment. RR4:67-68. The court reiterated
its primary concern for the interests of the childas the heart of everything we
care about in family lawand even pleaded with the State to reconsider its actions
and to conclude that the wise and merciful thing to do in this case is to simply
leave these parties alone. RR4:68-70. Then the court signed the agreed
judgmentwhich explicitly found the court ha[d] jurisdiction in this case, CR404,
and implicitly rejected the States intervention as untimely. See RR4:70; States
COA br. at 27 (acknowledging the trial courts implicit determination that the
intervention was untimely). The States appeal followed. CR485.

5
Despite all this, the State has repeatedly described the trial court as avoiding the plea to the
jurisdiction because it felt, in the States words, that a jurisdictional ruling was unnecessary;
indeed, the State has even portrayed the court as shirking its duty to determine its own
jurisdiction. See States br. at 7-8, 10, 20 n.13; States COA br. at 5, 28; States COA Reply at 5.
But the record shows this is not true.
The State also now claims the trial court declined to hear the motion to strike the States
intervention. States br. at 7. But again the record shows otherwise. See RR4:15-19 (Court: I
suggest we simply have [the motion to strike] as part of todays hearing. ; States
representative: Im prepared to do that, Your Honor.). In fact, in the court of appeals the
State acknowledged that the trial court heard arguments on the motion to strikeand further
acknowledged that the trial court had implicitly determined the States intervention was
untimely. States COA br. at 5, 27. Thus the States current assertions are contradicted not only
by the record but also by the States own previous statements.
7

The court of appeals held that the States intervention was untimely. Op. at
438-39. The court then held the State failed to meet any of the requirements for
intervening under the virtual-representation doctrine, that El Paso was
distinguishable, and that equitable considerations also weighed against allowing
the intervention. Op. at 439-44. For these reasons the State lacked standing to
bring its appeal, and the court of appeals dismissed the appeal for lack of
jurisdiction.
6
Summary of the Argument
Op. at 444. The State then filed its petition for review.
Section 22.001(a) of the Texas Government Code provides six bases for this
Courts jurisdiction over an appeal. But none apply here. Therefore, the Court
lacks jurisdiction and should deny the petition for review. This case does not
involve the construction and validity of any statute, because the trial court did not
construe Family Code 6.204 or rule on its validity when granting the divorce, and
the named parties raised no constitutional challenges. Nor did the court of appeals
reach any issues concerning the statutes construction and validity. Thus, there also
is no conflict between the Third Court of Appeals opinion and the J.B. v. H.B.
opinion, as the Fifth Court of Appeals construed and addressed section 6.204s
validity while the Third Court did not. No other bases for jurisdiction exist either,
as discussed below.
Furthermore, as the court of appeals correctly held, the State cannot show it
has standing to intervene. Section 37.006(b) of the Civil Practice & Remedies Code

6
Despite the court of appeals lengthy focusand ultimate holdingon the States lack of
standing to intervene, see Op. at 439-44, the State misconstrues the court as dismissing the
appeal merely because the State intervened one day after judgment. See States br. at 8.
8

grants the State a statutory right to intervenebut the right must be triggered by a
direct challenge to the constitutionality of a Texas law, and the State now concedes
that section 37.006(b) does not provide a basis for its intervention.
Texas Rule of Civil Procedure 60 provides a potential basis for intervention
but the State must show it has a justiciable interest in the proceeding, defined as
standing to bring at least some part of the action in its own name. The State cannot
show it had standing to bring any part of this divorce action in its own name;
therefore, the State cannot rely on Rule 60 for its intervention.
Finally, the virtual representation doctrine is a judicially created basis for
intervention on appealbut it requires the State to show it is bound by the
judgment it seeks to appeal. The State cannot show it is bound by this divorce
decreeand the State now admits it does not rely on the virtual-representation
doctrine for its intervention.
Instead, the State creates its own hybrid theory for intervention and asks this
Court to embrace this theory, to create new law expanding the Executives right to
intervene in judicial proceedingsto challenge even agreed judgments between two
private individuals, as in this divorce case. Principles of judicial restraint and the
separation of powers preclude the Court from expanding Executive power.
Therefore, the Court should either deny the States petition for review for lack of
jurisdiction or affirm the court of appeals holding that the State lacks standing to
intervene.
9

Argument
I. Because no basis for jurisdiction exists under Tex. Govt Code 22.001(a), this
Court lacks jurisdiction over this appeal.
The State claims this case involves the construction and validity of Family
Code section 6.204 and article I, section 32 of the Texas Constitution. States br. at
xiii (citing 22.001(a)(3)). But this is false. The court of appeals noted that
[n]either of the named parties raised any constitutional challenge to any Texas
statute, and rejected the States argument that Naylors petition for divorce carried
an implied constitutional challenge. Op. at 441-42. Also, because it held the State
lacked standing to intervene, the court of appeals explicitly declined to reach the
States arguments regarding the construction and validity of Texas law. Id. at 441-
42, 444 n.9. And the trial court never decided any question regarding the
construction or validity of Texas law in granting the divorce. See CR404 et seq. The
only way this case could involve questions of statutory construction would be if the
State were construing section 37.006(b) as the basis for its interventionbut the
State has abandoned this argument and admitted section 37.006(b) is inapplicable.
States br. at 14. Therefore, this case does not involve the construction or validity of
a statute, and section 22.001(a)(3) provides no basis for jurisdiction.
Further, there is no split among courts of appeals. The State contrasts the
Fifth Court of Appeals holding that a trial court lacks jurisdiction over a divorce
petition involving a same-sex couple, see In re Marriage of J.B. & H.B., 326 S.W.3d
654, 658 (Tex. App.Dallas 2010, pet. filed), with the Third Court of Appeals
statement that Texas law could be interpreted as allowing the trial court to grant
such a divorce. See Op. at 441-42. But the State has backed away from its initial,
incorrect claim that the Third Court held section 6.204 could be interpreted as
10

allowing same-sex divorces. Compare States PFR at 3 with States br. at 8.
7
The State fails to show the court of appeals erred and thus cannot show that
the court of appeals error is important to the jurisprudence of the state, as a basis
for jurisdiction. In the court of appeals, the State relied on El Paso and the virtual-
representation doctrine for its intervention, and the court of appeals explained
thoroughly why this argument failed. See Op. at 439-44. Now, the State admits the
virtual-representation doctrine does not map perfectly onto this caseand even
declares it never intended to rely exclusively on [the virtual-representation doctrine]
as a vehicle for intervention. Id. at 18-19. In effect, the State concedes the court of
appeals did not err by dismissing the States appeal based on the States lack of
standing under the virtual-representation doctrine. Thus, section 22.001(a)(6)
provides no basis for this Courts jurisdiction.
As the
State must concede, the Third Court explicitly stated it was expressing no opinion
on the merit of these arguments. Id. at 442. And it explicitly declined to reach
questions regarding the trial courts jurisdiction. Id. at 444 n.9. Thus, the Third
Courts dismissal of the States appeal cannot be construed as conflicting with the
Fifth Courts decision on the meritsand section 22.001(a)(2) cannot provide a
basis for this Courts jurisdiction.
Because none of the conditions listed under section 22.001(a) are satisfied, the
Court lacks jurisdiction and should dismiss the States petition for review. See TEX.
R. APP. P. 56.1(b)-(c).

7
But see States br. at 29, where the State continues to misconstrue the court of appeals decision
as issuing holdings regarding the construction of section 6.204. This is simply incorrect, and
such a misinterpretation of the Third Courts decision cannot form the basis for this Courts
jurisdiction under section 22.001(a)(2).
11

II. Because the State cannot show it has standing to intervene under any of the
three established bases for intervention, the Court should affirm the court of
appeals decision or deny the States petition for review.
If the Court chooses to exercise jurisdiction over this case, the only issue
properly before it is the States intervention. The Court reviews a trial courts
rejection of an intervention for abuse of discretion, and the standard is the same
when reviewing a court of appeals rejection of an intervention on appeal. In re
Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722-23 (Tex. 2006). A court abuses its
discretion only if it acts without reference to any guiding rules or principlesthat
is, if it acts arbitrarily or unreasonably. Worford v. Stamper, 801 S.W.3d 108, 109
(Tex. 1990).
Neither the trial court nor the court of appeals abused its discretion in
rejecting the States intervention. A trial court has broad discretion in determining
whether to disallow an intervention, and can reject a would-be intervenoreven if
it has a right to interveneif the court determines the intervention will complicate
the case by an excessive multiplication of the issues. Guaranty Federal Sav. Bank v.
Horeshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). Here, the States
attempted intervention in the trial court came after judgment had been rendered
and the trial court expressed its concerns about the well-being of the child involved,
and about the prospect of undoing the judgment and prolonging and complicating
the case by allowing the State to intervene. See RR4:42-43, 6061, 64, 67-70.
These concerns put the trial courts decision to reject the States intervention well
within its discretion. And in considering the States attempted intervention on
appeal, the Third Court of Appeals thoroughly examined the States reliance on the
12

virtual-representation doctrine and determined the State could not intervene
because it failed to satisfy any of the doctrines requirements. Op. at 439-44.
Rather than attempting to clear the high bar of abuse-of-discretion review, the
State approaches the intervention issue as though the Courts review were de novo.
See generally States br. 1025; but see id. at 17 n.10 (admitting abuse of discretion is
the appropriate standard). But even under de novo review, the State cannot
demonstrate a right to intervene in this case. There are three established bases on
which the State may intervene in a civil judicial proceeding: (1) Texas Civil Practice
& Remedies Code (CPRC), section 37.006(b); (2) Texas Rule of Civil Procedure 60;
and (3) the judicially-created virtual representation doctrine. The States
attempted intervention in the trial court was untimely. Op. at 438-39. But this is
of secondary concern. Regardless of its timing, the State fails to show it can rely on
any of the established bases for intervention in this uncontested divorce action.
A. The State admits it cannot intervene under CPRC 37.006(b).
Chapter 37 of the CPRC governs declaratory judgments, and section 37.006(b)
states: In any proceeding that involves the validity of a municipal ordinance or
franchise, the municipality must be made a party and is entitled to be heard, and if
the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney
general of the state must also be served with a copy of the proceeding and is entitled
to be heard. TEX. CIV. PRAC. & REM. CODE 37.006(b). In other words, in an
action directly challenging the constitutionality of a statute, the State has a
statutory rightor standingto intervene, to defend the statutes constitutionality.
Here, no declaratory judgment was sought and neither party to the divorce
raised any constitutional challenge to any Texas statute. Op. at 441; see Statement
13

of Facts, above. Moreover, the State has finally admitted that section 37.006(b)
does not serve as a legal basis for the States intervention in this particular case.
States br. at 14. Therefore, the State cannot base its intervention on section
37.006(b).
8
B. The State cannot intervene under TRCP 60.

TRCP 60 states: Any party may intervene by filing a pleading, subject to
being stricken out by the court for sufficient cause on the motion of any party. The
rule authorizes a party with a justiciable interest in a pending suit to intervene in
the suit as a matter of right. In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex.
2008) (per curiam). This justiciable interest requirement is of paramount
importance, because it defines the category of non-parties who may interject
their interests into a pending suit to which the intervenors have not been invited,
and it protects pending cases from having interlopers disrupt the proceedings. Id.
at 155. To have a justiciable interestor the right to intervenea would-be
intervenor must show it could have brought the pending action, or any part thereof,
in [its] own name. Id. (internal citations and quotations omitted); Guaranty
Federal, 793 S.W.2d at 657. In other words, the would-be intervenor must show it
has standing. Union Carbide, 273 S.W.3d at 156.
Here, the State purports to base its intervention on Rule 60. CR246-47;
States br. at 11. But the State simply did not have standing to bring any part of this
divorce action in its own name. Thereforeregardless of the timing of the States
petitionunder Union Carbide the State had no justiciable interest in this divorce,

8
The State notes the recent passage of section 402.010 of the Government Code, which is similar
to section 37.006(b)but the State admits section 402.010 is likewise unavailing. See States
br. at 14.
14

and the trial court could not have permitted the States intervention even if it
wanted to. See 273 S.W.3d at 156.
The State tries to evade Union Carbide and Guaranty Federal by claiming the
standing requirement applies only to private parties. See States br. at 12 n.8
(emphasis in original). But the State provides no authority for this assertion, and
none exists. The State then relies on a court of appeals decision to claim the
standing requirement is really just a useful guide. Id. (citing Zeifman v. Michels,
229 S.W.3d 460, 464 (Tex. App.Austin 2007, pet. denied)). But the cited case
(Zeifman, 2007) was decided a year before the controlling Supreme Court decision
(Union Carbide, 2008). And this Court made clear the standing requirement is
more than a useful guide, when it declaredin Union Carbidethat the trial
court lacked discretion to permit an intervention where the would-be intervenor
could not show standing. 273 S.W.3d at 156. Thus, the States attempt to evade
Rule 60s standing requirement is meritless. Under Union Carbide the State lacks a
justiciable interest and it cannot intervene under Rule 60.
C. The State now concedes that it cannot intervene under the virtual-
representation doctrine.
In both the trial court and the court of appeals, the State relied on the virtual
representation doctrine for its intervention. See RR4:32, 39-43; States COA
Reply br. at 8-15. The virtual-representation doctrine is a judicially-created
exception to the rule that appeal is available only to parties of record. In re
Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex. 2006). Though the doctrine
appears, in effect, to be primarily about timeliness (i.e., allowing for postjudgment
intervention), such concerns are in fact secondary; the doctrines primary concern is
with who qualifies as a party to the action (i.e., who has standing to appeal the
15

judgment). See Op. at 439 n.4 (citing Lumbermens, 184 S.W.3d at 722; Texas Mut.
Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008)). Thus, the virtual-
representation doctrine provides a separate basis for interventionapart from and
in addition to Rule 60 and section 37.006(b). The State has previously argued the
doctrine could provide a basis for either pre- or postjudgment intervention.
RR4:32, 39-43.
To intervene under the virtual-representation doctrine, however, the would-be
intervenor must show: (1) it is bound by the judgment; (2) its privity of estate, title,
or interest appears from the record; and (3) there is an identity of interest between
the would-be intervenor and a named party to the judgment. El Paso, 1 S.W.3d
at 110. Because the doctrine is primarily concerned with who qualifies as a party to
the action, the first requirementthat the would-be intervenor be bound by the
judgmentis the most important consideration. City of San Benito v. Rio Grande
Valley Gas Co., 109 S.W.3d 750, 755 (Tex. 2003).
Here, as the court of appeals demonstrated, the State cannot base its
intervention on the virtual-representation doctrine. Op. at 439-44. Most obviously,
the State cannot show it is bound by this divorce decree. And the State has backed
away from relying on this doctrine as a substantive basis for its intervention,
admitting the doctrine does not map perfectly onto this case, and claiming it
never meant to rely exclusively on it as a vehicle for intervention. States br. at 18-
19. Thus, the State has effectively conceded it cannot intervene under the virtual-
representation doctrine.
9

9
The State still relies on virtual-representation cases like Lumbermens and Ledbetterbut
primarily only to argue that the untimeliness of the States petition should not bar the States

16

D. The State cannot intervene by conflating 37.006(b) with TRCP 60.
Recognizing it cannot rely squarely on any of the established bases for
intervention, the State conflates Rule 60 with section 37.006(b) to suggest a hybrid
theory for intervention. The State purports to base its intervention on Rule 60
but instead of following Union Carbide and attempting to establish it had standing
to bring some part of the divorce action in its own name, the State redefines the
required justiciable interest as the States interest in defending the
constitutionality of Texas law. See States br. at 11. In doing so, the State attempts
to transform its limited statutory right under section 37.006(b), to intervene in
actions involving a direct challenge to the constitutionality of Texas law, into a
broad, inherent right to intervene in any case thataccording to the Attorney
Generalmight implicate constitutional questions.
The State argues this broad, inherent right to intervene is well recognized,
States br. at 11-12, but it fails to cite any authority. The State simply asserts this
justiciable interest in defending the constitutionality of Texas law, and claims
[t]his Court has routinely acknowledged the State as a proper intervenor under
these circumstances. States br. at 11. The State cites three casesState v.
Hodges,
10
Wilson v. Andrews,
11
and Corpus Christi Peoples Baptist Church, Inc. v.
Nueces County Appraisal District (Corpus Christi)
12

intervention. See States br. at 17-18. This is of no consequence, however, because the State still
fails to show it has standing to intervene in the first place.
in support. See id. But
none of these cases provides an actual holdingor even any commentary
pertaining to the States right to intervene. Rather, in each case the Court, in a
10
92 S.W.3d 489, 493 (Tex. 2002).
11
10 S.W.3d 663, 666 (Tex. 1999).
12
904 S.W.2d 621, 624 (Tex. 1995).
17

single sentence, merely noted the States intervention as a matter of procedural
background. See Hodges, 92 S.W.3d at 493; Wilson, 10 S.W.3d at 666; Corpus
Christi, 904 S.W.2d at 624. In short, the State misconstrues the Courts mere
acknowledgment of an intervention as an affirmation of its propriety.
But that is not all. The State goes on to cite two district court cases to show it
is a regular intervenor in any number of pending cases between private parties
involving constitutional questions about state law. States br. at 12 (citing In re Tex.
State Silica Prods. Liab. Litig. (Silica Products), No. 2004-70000 (333rd Dist. Ct.,
Harris County, Tex. Oct. 27, 2008); Watson v. Harrison County Hosp. Assn, No.
2:08-cv-00081 (TJW-CE) (E.D. Tex. June 13, 2008)).

And the clear implication is
that all five of the cases citedHodges, Wilson, Corpus Christi, Silica Products, and
Watsonsupport the States theory of a broad, inherent right to intervene. See
States br. at 11-12. But in fact, each of these five cases involved a direct challenge to
the constitutionality of Texas lawand in each case the States intervention relied
squarely on section 37.006(b). See States Five Petitions in Intervention, attached at
Tabs 1-5.
13
In other words, while these cases certainly demonstrate the States
existing statutory right to intervene under section 37.006(b), they do not support
the States new theory that it has a broad, inherent right to intervene in this divorce
proceeding, where neither party has challenged the constitutionality of any law.
14

13
Watson was in federal court, so in that case the State relied on 28 U.S.C. 2403(b)the federal
equivalent of section 37.006(b). Tab 5. And in Corpus Christi the State had actually been
added as a third-party defendantso it never cited section 37.006(b) as a basis for intervention,
though it did seek to reposition itself as intervenor. Tab 3.

14
In backing away from its reliance on the virtual-representation doctrine, the State claims it
really intended only to rely on the similarities between this case and [El Paso]. States br. at 18.
But like Hodges, Wilson, Corpus Christi, Silica Products, and Watson, El Paso also involved a
direct challenge to the constitutionality of a statuteand the States intervention was based on
18

The State says it is aware of no case in which it has been denied the right to
intervene to advocate for the constitutionality of Texas law. States br. at 12. But
framing it this way presumes the constitutionality of Texas law has been put at issue;
it has not. The real question is: Can the State point to any case in which it was
allowed to intervene, to advocate for the constitutionality of Texas law, where there
was no challenge to the constitutionality of Texas law and section 37.006(b)
therefore did not apply? The answer is no.
To allow the State to intervene in this case, the Court would have to judicially
expand the Executives power to intervene. Principles of judicial restraint counsel
against such action. See Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d 425,
441 (Tex. 2000) (Enoch, J., joined by C.J. Phillips and J. Hankinson, dissenting)
(frustration at not being able to reach the merits of every important case is not
sufficient reason to fail to exercise judicial restraint); In re Doe 2, 19 S.W.3d 278,
295 (Tex. 2000) (Hecht, J., joined by J. Abbott, dissenting) (judicial restraint
means this Court should not undo lower court decisions just because it would like
to see a different result).
And under principles of limited government and the separation of powers, the
Texas Constitution prohibits one government branch [from] exercising a power
attached to another. Perry v. Del Rio (Del Rio), 67 S.W.3d 85, 91 (Tex. 2001).
The Attorney General, a member of the Executive, can act only within the limits of
the Texas Constitution and Texas statutesand this Court cannot enlarge the
Attorney Generals powers. Id. at 92 (citing Terrazas v. Ramirez, 829 S.W.2d 712,

section 37.006(b). See El Paso, 1 S.W.3d at 109. Thus, El Paso provides no support for the
States new intervention scheme. See also Op. at 442 (distinguishing El Paso).
19

735 (Tex. 1991) (Cornyn, J., concurring)); Farmers Group, Inc. v. Lubin, 222
S.W.3d 417, 424 and n.39 (Tex. 2007) (rejecting States assertion of broader power
to bring suit than was granted by statute).
15
Notably, the State argues that the unique circumstances of this case warrant
allowing the States intervention.
If the Executive Branch believes the
trial court should have reached a different outcome in this divorce proceedingor
that the court of appeals should reach a different conclusion regarding the States
interventionthen it should take its argument to the Legislature; this Court has no
duty to promulgate new law at the Executive Branchs request.
16

15
Other courts also recognize the limits on the intervention power of attorneys general. See State
v. South, No. 04 CA 38, 2004 WL 2260596, at *3 (Ohio App. 5th Dist. Sep. 20, 2004) (state
has no interest in a divorce proceeding and thus could not intervene); DeLong v. Stark County
Dept. of Human Services, 521 N.E.2d 463, 466 (Ohio App. 5th Dist. 1986) (same; noting To
allow the prosecutors nose to protrude further under the tent of domestic relations law is to
adopt the states proposed Big Brother attitude toward families in our society.); Federated Ins.
Co. v. Oakland County Road Commn, 715 N.W.2d 846, 850, 853 (despite broad statutory
power to prosecute actions on states behalf, attorney generals power was not unfettered; state
could not intervene to bring appeal when losing parties chose not to do so, because no
justiciable controversy existed under traditional standing principleswhich were also binding
on state); Matter of BASF Corp., Chemical Div., 533 So.2d 971, 975 (La. App. 1st Cir. 1988)
(although statute gave attorney general the right to intervene in any proceeding, court
determined he could not intervene in appeal where procedural requirements were not met).
States br. at 25. In short, the State wants to
challenge a trial court decision it does not like, and to overcome a court of appeals
decision it cannot show was in error. But under Del Rio and the Texas
Constitutions separation-of-powers principle, this Court should reject the States
pursuit of greater power to intervene in civil lawsuits, and should either deny the
States petition for review or affirm the court of appeals decision.
16
The States reliance on a unique set of facts also counsels against this Courts involvement. See
6 McDonald & Carlson, TEX. CIV. PRAC. APP. PRAC. 22:12 at n.66 (2d. ed.).
20

E. The State cannot intervene based on equitable considerations.
A trial court has broad discretion to disallow an intervention under Rule 60
even if the would-be intervenor has a justiciable interestif the trial court thinks
the intervention will complicate the case by an excessive multiplication of the
issues. Guaranty Federal, 793 S.W.2d at 657. Similarly, a would-be intervenor
under the virtual-representation doctrine may be denied intervention if it would
create unnecessary delay or prejudice to the existing parties. Ledbetter, 251 S.W.3d
at 36. Equitable considerations can be invoked to prevent an intervention, even
where the would-be intervenor has standing to intervene.
But, in contrast, the trial court has no discretion to allow an intervention if the
would-be intervenor fails, under Rule 60, to show it had standing to have brought
and recovered for any part of [the pending] claim. Union Carbide, 273 S.W.3d
at 156. And a would-be intervenor under the virtual-representation doctrine can
intervene only if it meets the requirements necessary and if equitable
considerations do not weigh against the intervention. Lumbermens, 184 S.W.3d at
722, 725 (emphasis added). In other words, equitable considerations cannot be
invoked to allow an intervention where the would-be intervenor does not first meet
the basic requirement to show standing to intervene.
The State nevertheless argues equitable considerations overwhelmingly favor
allowing the State to intervene in this case. States br. at 19. To support this
argument, the State cites Zeifman, 229 S.W.3d at 464, for the proposition that the
right to intervene is ultimately rooted in equity, States br. at 20but the State
ignores Zeifmans reiteration of the rule that a would-be intervenor must
demonstrate a justiciable interest in the lawsuit, and Zeifmans equation of
justiciable interest with standing to bring an action. 229 S.W.3d at 464.
21

The State also cites Lumbermens, claiming important rights are at stake.
States br. at 21. But the State ignores that Lumbermens acknowledged the right of
an intervenor to intervene, to vindicate important rights, only where the
intervenor satisfied the standing requirements for intervention under the virtual-
representation doctrine. 184 S.W.3d at 723-24. And later, when the State walks
through the four-step test for permitting interventionagain relying on
Lumbermens, States br. at 2324the State again ignores that this Court
employed equitable considerations in Lumbermens only after it had already
determined that the would-be intervenor had satisfied the basic standing
requirements to intervene in the first place. 184 S.W.3d at 723-26.
In short, the State makes no argument and cites no authority that allows a
would-be intervenor to rely on equitable considerations to circumvent the basic
requirement to show standing, or the right to intervene.
III. If the Court creates a basis for the State to intervene, and reaches the States
jurisdictional arguments, the Court should construe section 6.204 as allowing
same-sex couples legally married in another state to obtain a divorce in Texas,
so as to avoid rendering the statute unconstitutional.
In the unlikely event this Court fashions a new basis for the States
intervention in this case, the Court should remand for consideration of the issues
not reached by the court of appeals. See TEX. R. APP. P. 53.4. But if this Court
determines it will resolve these issues itself, then Naylor and Daly present the
following arguments supporting the trial courts judgment.
A. As written, section 6.204 of the Family Code does not preclude Naylor
and Daly from obtaining a divorce.
The cardinal rule of statutory construction is to ascertain and give effect to
the Legislatures intent. Klein v. Hernandez, 315 S.W.3d 1, 6 (Tex. 2010). For a
22

statute that is unambiguous, the Court will apply its words according to their
common meaning without resort to rules of construction or extrinsic aids. In re
Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007). And the Court avoids reading
language into a statute that is not there. Entergy Gulf States, Inc. v. Summers
(Summers), 282 S.W.3d 433, 465 (Tex. 2009) (we should always refrain from
rewriting text that lawmakers chose); City of Rockwall v. Hughes, 246 S.W.3d 621,
625-26, 632 (Tex. 2008) (a court risks crossing the line between judicial and
legislative powers when it reads language into a statute that the Legislature did not
put there); Williams v. Texas State Board of Orthotics & Prosthetics, 150 S.W.3d
563, 573 (Tex. 2004) (we will not read into an act a provision that is not there).
The statutory provision at issue here is section 6.204 of the Family Code
particularly section 6.204(c). Section 6.204(a) defines terms; section 6.204(b)
declares same-sex marriage is contrary to public policy and void in this state; and
section 6.204(c) says, in relevant part:
The state or an agency or political subdivision of the state may not give
effect to a (1) public act, record, or judicial proceeding that creates,
recognizes, or validates a marriage between persons of the same sex
in this state or in any other jurisdiction; or (2) right or claim to any
legal protection, benefit, or responsibility asserted as a result of a
marriage between persons of the same sex in this state or in any
other jurisdiction.
Tex. Fam. Code 6.204(c).
23

1. Construing section 6.204 as jurisdictional conflicts with the plain
language of the statute and produces unjust and unreasonable
results.
(a) Reading section 6.204 as jurisdictional upends a century
of Texas divorce law.
Texas trial courts are courts of general jurisdiction. Tex. Const. art. V, 8;
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). This general
jurisdiction includes the jurisdiction to hear divorce actionsand this Court has
declared the Legislature lacks the power to take away that jurisdiction. Aucutt v.
Aucutt, 62 S.W.2d 77, 79 (Tex. 1933) (Since trial courts of this State are clothed by
the Constitution with divorce jurisdiction it does not lie within the power of the
Legislature to take such jurisdiction away from them.).
17
Further, subject-matter jurisdiction is the power to decide, and not merely the
power to decide correctly. Martin v. Sheppard, 201 S.W.2d 810, 812-13 (Tex.

17
The State argues that Aucutts declaration is no longer the case because the Texas Constitution
has been amended. States br. at 40 n.26. But the 1985 amendment of article V, section 8
merely simplified the provisions three paragraphs detailing district court jurisdiction, to state
simply: District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of
all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original
jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or
administrative body. Texas Const. art. V, 8 (emphasis added). This simpler version no
longer expressly names divorce actions, but jurisdiction over all actions obviously includes
divorce. Thus, district courts remain clothed by the Constitution with divorce jurisdiction.
Aucutt, 62 S.W.2d at 79; see also Dubai, 12 S.W.3d at 75 (all claims are presumed to fall within
the jurisdiction of the district court unless the Legislature has provided that they must be
heard elsewhere).
The State further argues that even if article V, section 8 grants district courts jurisdiction
over divorce actions, it would have to yield to article I, section 32s prohibition against same-
sex marriages. States br. at 40 n.26. But this Court presumes the language in constitutional
provisions was carefully selected, and the words are interpreted as the people generally
underst[an]d them. Cramer v. Sheppard, 167 S.W.2d 147, 153 (Tex. 1943). Moreover, the
Constitution must be read as a whole and effect must be given to each part of each clause.
Vinson v. Burgess, 773 S.W.2d 263, 265 (Tex. 1989) (internal quotations omitted). By its plain
language, article V, section 8 gives district courts jurisdiction over all divorce actions, and article
I, section 32 says nothing about jurisdiction or divorce. Therefore, these two sections do not
conflict and have nothing to do with each other.
24

1947).
18
For over a century in Texas family law, to successfully plead an action for
divorce and thereby invoke the trial courts jurisdiction, the petitioner has needed
only to allege the existence of a valid marriageand the allegation alone has been
sufficient. See Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S.W. 284 (1900). If the
other party disputes the marriages validity, then the assertion of voidness is not a
jurisdictional deficiency; rather it is a defense that should [be] argued to the court
during a trial on the merits. Narvaez v. Maldonado, 127 S.W.3d 313, 317 (Tex.
App.Austin 2004, no pet.) (citing Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.
2003)); see also Gray v. Gray, 354 S.W.2d 948, 949 (Tex. Civ. App.Houston 1962,
writ dismd) (evidence of the invalidity of the marriage constitutes a defense on the
merits) (citing Ex Parte Threet, 160 Tex. 482, 333 S.W.2d 361 (1960) (proof of the
marriages validity or invalidity must be made where the marriage is denied or
put in issue)). A petition for divorce has long been held to embrace not only the
An appellate court reviewing a trial courts jurisdiction construes the
pleadings in favor of the pleader and takes as true the facts pleaded. Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). This means, in determining the
trial courts jurisdiction over Naylors petition for divorce, the appellate court should
take as true Naylors allegation of a valid marriage, and the trial courts jurisdiction
should be based on the character of the case (a divorce action)not on how the
court should decide the matter.

18
The State has relied repeatedly on Mireles v. Mireles, No. 01-08-00499-CV, 2009 WL 884815
(Tex. App.Houston [1st Dist.] Apr. 2, 2009, pet. denied), for the proposition that district
courts lack jurisdiction over a divorce involving a same-sex couple. See, e.g., States br. at 35.
But Mireles involved a Texas marriage, where both parties agreed the marriage was void. 2009
WL 884815, at *2. Here, the issue is whether a same-sex couple legally married in another state
can obtain a divorce in Texas; therefore, Mireles is inapposite.
25

dissolution of an existing legal marriage but also the dissolution of a marriage that
was void or voidable from the beginning. See Schneider v. Rabb, 100 Tex. Civ. App.
211, 212, 97 S.W. 463, 464 (1906). That is, a trial court hearing a petition for
divorce has always been able, after considering the merits, to deny that petition and
refuse to grant the divorce on the ground that the alleged marriage was void.
Further still, this Court has recognized the severability of jurisdictional
issuesi.e., that the trial court can have jurisdiction to simply grant a divorce (the
adjudication of the parties status) while lacking jurisdiction to divide property (the
adjudication of the parties rights). Dawson-Austin v. Austin, 968 S.W.2d 319, 324
(Tex. 1998). Thus, even if section 6.204 could deprive the court of jurisdiction to
resolve property disputes or other issues, there is no authority for depriving the
court of jurisdiction to merely grant an uncontested divorce petition.
Contrary to all of the above, the State argues the only proper way to dissolve a
same-sex marriage is a suit to declare the marriage void. States br. at 31.
19

19
The State cites section 6.307 of the Family Code. But section 6.307 says only that [e]ither
party to a marriage made void by this chapter may sue to have the marriage declared void.
Tex. Fam. Code 6.307 (emphasis added). By its plain terms, this provision is merely
permissive and does not require the marriage to be dissolved this way.
Under
this approach, a trial court must inquire into and determine the merits of a divorce
petitiondespite the absence of any dispute between the partiesin order to decide
whether it has jurisdiction to determine the merits. Then, rather than denying the
divorce and declaring the marriage void, the court must dismiss the petition for lack
of jurisdiction, and the petitioner must then file a separate suit to declare the
marriage void. In sum, by reading section 6.204 as jurisdictional, the State upends
longstanding divorce procedure and the law of subject-matter jurisdiction.
26

(b) The plain language of section 6.204 does not prevent the
trial court from hearing and granting Naylors uncontested
petition for divorce.
When interpreting a statute, the Court looks first to the plain and ordinary
meaning of the statutory language. City of Houston v. Clark, 197 S.W.3d 314, 318
(Tex. 2006); see also Klein, 315 S.W.3d at 9 (Willett, J., concurring) (unambiguous
text equals dispositive text) (collecting cases). Here, the common, unambiguous
meaning of marriage refers to the creation and ongoing (or going-forward)
existence of a legal union. No one uses the word marriage to refer also to divorce;
that would be nonsensical. Divorce is a disunionthe antithesis of marriage. A
divorce does not create a marriage, nor does it give effect to a marriage; to the
contrary, a divorce ends the effect of that marriage.
20
By its own terms, then, section 6.204 should be understood as (1) preventing
the state from giving effect to the creation or recognition of an ongoing same-sex
marriage, but (2) not precluding a trial court from ending a validly-created same-
sex marriage through the granting of an uncontested petition for divorce. This
reading comports with the rule against reading language into a statute that is not
there. See Summers, 282 S.W.3d at 465; City of Rockwall, 246 S.W.3d at 625-26,
632; Williams, 150 S.W.3d at 573. And it further comports with this Courts
presumption that the Legislature did not intend to make [a statute]

20
The Texas Constitution defines marriage as a union of a man and a woman. Tex. Const.
art. I, 32. And the Fifth Court of Appeals recognized the distinction between (1) the creation
or going-forward recognition of a marriage and (2) divorce. In re Marriage of J.B. & H.B.,
326 S.W.3d at 672. The State complains that section 6.204 does not contain the words going-
forward, etc., and that such words cannot be added to the text. States br. at 30-31. But the
State misunderstands: no one is proposing adding words to the text. References to the creation
or going-forward existence of a union are simply attempts to define the plain meaning of the
word marriagewhich does appear in the statute.
27

jurisdictionala presumption overcome only by clear legislative intent to the
contrary. City of DeSoto v. White, 288 S.W.3d 389, 394-96 (Tex. 2009). In City of
DeSoto, this Court held a statute was not jurisdictional because, among other things,
it contained no explicit language indicating it was jurisdictional. Id.
Here, section 6.204 contains no explicit language indicating the intent to be
jurisdictional. And though it restricts the effect that can be given to a same-sex
marriage, it says nothing about whether a same-sex couple legally married in
another state can obtain a declaration of divorce. Therefore, under the rules of
statutory construction, and according to the statutes plain meaning, the Court
should reject the States proposed construction of section 6.204 as jurisdictional, or
as precluding the trial court from granting this divorce.
(c) Construing section 6.204 as depriving trial courts of
jurisdiction over an uncontested divorce produces unjust
and unreasonable results.
This Court presumes the Legislature intended section 6.204 to effect a just
and reasonable result. Tex. Govt Code 311.021; see In the Interest of M.N., 262
S.W.3d 799, 802 (Tex. 2008). Thus, if the plain meaning of the statute points to
an unreasonable result, the Court should not consider itself bound by this plain
meaning in determining the statutes operative effect. See City of Rockwall, 246
S.W.3d at 625-26 (Court construes words according to their plain meaning unless it
leads to absurd results); accord Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440,
453-55 (1989); Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989)
(Scalia, J., concurring).
28

The State of Texas processes roughly 80,000 divorces every year.
21
The vast
majority of these divorces are uncontested, and the presumption of the validity of
the alleged marriage in an uncontested divorce is essential to judicial efficiency.
The States construction of section 6.204 as jurisdictional will require trial courts to
police these tens of thousands of uncontested divorcesand where the court cannot
determine from the petitions face whether an opposite-sex or same-sex couple is
involved, the court will have to inquire into and determine the validity of the alleged
marriage (thereby undoing the concept of uncontested).
22
As more and more
states legalize same-sex marriage,
23
as more and more people move to Texas
24
and
as the popularity of unisex names remains high
25

21
Table 7 Marriages and Divorces Texas, 1970-2008, Tex. Dept. of State Health Services,
gone will be the days in which
http://bit.ly/plNt4y.
22
The pleading requirements for a petition for divorce are sparse, and do not include the
requirement to plead the sex of the parties to the marriage. See Tex. Fam. Code 6.204.
Moreover, many uncontested divorces do not involve attorneys, and sometimes one of the
parties does not even get involved.
23
Eight states now allow same-sex marriagethough Californias allowance is presently on hold.
See McKinneys DRL 10-a and 10-b (2011) [New York]; N.H. Rev. Stat. 457:1 et seq.
(2010) [New Hampshire]; Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010),
stayed by 2010 WL 3212786 (9th Cir. Aug. 16, 2010) [California]; 2009 Vt. Acts & Resolves n.
3 [Vermont]; B18-482, 2009-2010 Council, 18th Period (D.C. 2009) [District of Columbia];
Varnum v. Brien, 763 N.W.2d 862, (Ia. 2009) [Iowa]; Kerrigan v. Commissioner of Public
Health, 957 A.2d 407 (Conn. 2008) [Connecticut]; Goodridge v. Dept. of Public Health, 798
N.E.2d 941 (Mass. 2003) [Massachusetts]. And other states allow civil unionse.g., Delaware,
Hawaii, Illinois, New Jersey, Oregon, Rhode Island. Moreover, nationwide public opinion has
accelerated in favor of legalizing same-sex marriage. Nate Silver, Gay Marriage Opponents Now
in Minority, The New York Times (April 20, 2011), http://bit.ly/g7Fwdf (discussing four recent
polls showing outright majority favors recognizing same-sex marriage).
24
Matt Goodman, Census: Texas fastest growing state, Killeen Daily Herald (Dec. 30, 2009),
http://bit.ly/fGT3lQ (measuring growth in total numbers); Steve Campbell, Texas remains
countrys fastest growing state, McClatchy (Dec. 24, 2009), http://bit.ly/e3xsob; Texas, here we
come, The Economist (June 16, 2010), http://econ.st/brbXYx (citing Jon Bruner, Map: Where
Americans Are Moving, Forbes.com, http://bit.ly/agfgl4 (showing many migrants to Texas are
coming from states that allow same-sex marriage or civil unions)).
25
Group of Names Androgynous: Combined Popularity Chart, NameTrends.net,
http://bit.ly/nVw2rQ.
29

trial courts could quickly and efficiently grant an uncontested petition for divorce
between Cameron and Dana or Taylor and Robin, or Jordan and Avery, or
Reese and Reagan.
In sum, because the States construction of section 6.204 conflicts with the
plain words of the statute and the rules of statutory construction; because it turns
the law of divorce and subject-matter jurisdiction on its head; and because it
produces unreasonable and unjust results, this Court should reject it, and instead
read section 6.204 as applying only to marriage.
2. Construing section 6.204 as permitting a trial court to grant an
uncontested same-sex divorce only furthers the statutes intent
and objective.
As noted, a statutes intent is determined first and foremost by the text. Klein,
315 S.W.3d at 9 (Willett, J., concurring). There is no disputing that section 6.204
declares same-sex marriage contrary to public policy, and that the intent or object
to be obtained, see Tex. Govt Code 311.023(1), is fewer (or no) same-sex
marriages in Texas. But when a same-sex couple is legally married in another state,
then moves to Texas, questions arise regarding the legal status of that marriage.
Section 6.204 prevents Texas from giving effect to an ongoing marriage. Tex.
Fam. Code 6.204(c). But that does not mean the marriage does not exist, because
the marriage is not dependent only on the effect given to it by the State of Texas
for its existence. At the very least, it remains legally valid according to the state in
which it was created.
26

26
The marriage is also acknowledged for some purposes under federal law. See In re Balas, 449
B.R. 567 (C.D. Cal. 2011) (DOMA unconstitutional to the extent it prevents legally-married
same-sex couple from filing joint Chapter 13 petition in bankruptcy) (signed by 20 federal
bankruptcy judges); Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass.

30

In fact, even if a Texas court were to formally declare void a same-sex
marriage that was lawfully created in Massachusetts, legal uncertainty would
nevertheless remain. The State contends a declaration of voidance would be
effective in all 50 states. States br. at 31. But in effect the State is saying Party A
and Party B could be legally married in Massachusetts for a decade; the parties
could amass a decades fortune in marital property, as well as marital obligations
and responsibilities (including those pertaining to children); then, for whatever
reason, Party A could move to Texas and have this marriage declared void overnight,
and against Party Bs wishes.
27
The State argues voidance is preferable to a divorce decree because a divorce
decree provides no finalityno certaintybecause it is void and therefore subject
According to the State, that Texas voidance decree
would have to be honored by Massachusetts, despite the fact that Party B is still
living in Massachusetts, where the marriage was legally created and recognized for
a decade. Can there be any doubt that the States proposed voidance-regime will
produce litigation over such obvious injustices? Does the States preferred voidance
remedy actually reduce the legal uncertainty surrounding these same-sex marriages?
Cf. Estin v. Estin, 334 U.S. 541, 553 (1948) (Jackson, J., dissenting) (If there is one
thing that the people are entitled to expect from their lawmakers, it is rules of law
that will enable individuals to tell whether they are married and, if so, to whom.).

2010) (DOMA unconstitutional to the extent it denies legally-married same-sex couples equal
access to federal marriage-based benefits).
27
There is no waiting period for a declaration of voidanceParty A need only be domiciled in
this state. Tex. Fam. Code 6.307(b). And there are no concerns about personal
jurisdictionthe court could void the marriage even though Party B is still in Massachusetts.
See Dawson-Austin, 968 S.W.2d at 324 (court has jurisdiction to adjudicate parties states by
granting divorce even if it lacks personal jurisdiction over absent party, to adjudicate property
rights).
31

to collateral attack at any time. See States br. at 22, 31-32 and n.21. But this only
begs the question. That is, the State presumes the divorce decree is void (because
the trial court lacks jurisdiction to grant it) in order to rely on the voidness of the
divorce decree in advocating voidance procedures are preferable. But obviously, if
section 6.204 is construed according to its plain languageas not precluding the
trial court from hearing and granting an uncontested petition for divorcethen the
divorce decree is final. Indeed, it is more final than the voidance decree, because it
remains an open question whether Texas can void a valid Massachusetts marriage.
Put simply, the surest way to dissolve a same-sex marriage that was legally
created in another state is the way by which Texans dissolve an opposite-sex
marriage that was legally created in another state: by granting a divorce. Applying
the plain language of section 6.204, so as to permit the trial court to merely
presume the validity of an alleged marriage for the sole purpose of dissolving it by
divorce, only furthers the intent and objective of the statutebecause it means
there will be one less same-sex marriage in Texas.
28
B. The States construction of section 6.204 violates Naylor and Dalys rights
under the United States Constitution.

As demonstrated in the previous section, it is more than fairly possible to
construe section 6.204 as (1) preventing the state from giving effect to the creation
or recognition of an ongoing same-sex marriage in Texas, but (2) not precluding a

28
As the Wyoming Supreme Court recently put it: [R]ecognizing a valid foreign same-sex
marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or
policy in Wyoming against allowing the creation of same-sex marriages. A divorce proceeding
does not involve recognition of a marriage as an ongoing relationship. Indeed, accepting that a
valid marriage exists plays no role except as a condition precedent to granting a divorce. After
the condition precedent is met, the laws regarding divorce apply. Laws regarding marriage play
no role. Christiansen v. Christiansen, 253 P.3d 153, 156 (Wyo. 2011).
32

trial court from merely presumingwithout decidingthe validity of an out-of-
state marriage, for the sole purpose of acquiring jurisdiction to dissolve it through
the granting of a divorce. The Court therefore should adopt this construction, so as
to avoid wading unnecessarily into ancillary constitutional questions.
VanDevender v. Woods, 222 S.W.3d 430, 432-33 (Tex. 2007).
29
Of course, it may be that even this proposed construction of section 6.204
raises constitutional concerns. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d
921 (N.D. Cal. 2010) (finding Californias prohibition against same-sex marriage
unconstitutional under Due Process and Equal Protection). But those concerns
pertain to marriage. Questions about the creation or ongoing recognition of same-
sex marriage are not before the Court. This case is about divorceand divorce is a
right distinguishable from the right to marry. See Boddie v. Connecticut, 401 U.S.
371, 381 n.8 (1971) (recognizing the special nature of the divorce action and
divorce as a right of substantial magnitude); Williams v. North Carolina, 325 U.S.
226, 230 (1945) (divorce affects personal rights of the deepest significance and
touches basic interests of society); Ivy v. Ivy, 177 S.W.2d 237, 239 (Tex. Civ.
App.Texarkana 1943) (The right to prosecute a divorce suit is personal.).

There is a rapidly growing judicial consensus that all discrimination against
gays and lesbians is unconstitutional. See, e.g., In re Balas, 449 B.R. 567 (C.D. Cal.
2011) (Defense of Marriage Act (DOMA) unconstitutional to the extent it prevents
legally-married same-sex couple from filing joint Chapter 13 petition in bankruptcy)
(signed by 20 federal bankruptcy judges); Dragovich v. U.S. Dept. of the Treasury,

29
This construction does not conflict with the Texas Constitution. Article I, section 32 prohibits
the creation or recognition of same-sex marriages or unionsbut again, this is distinguishable
from divorce, which effects a disunion.
33

764 F. Supp. 2d 1178 (N.D. Cal. 2011) (DOMA unconstitutional to the extent it
denies legally-married same-sex couples access to state-maintained insurance
plans); Log Cabin Republicans v. U.S., 716 F. Supp. 2d 884 (C.D. Cal. 2010)
(militarys Dont Ask, Dont Tell policy unconstitutional); Perry, 704 F. Supp. 2d
921 (state law banning same-sex marriage unconstitutional); Gill v. Office of
Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) (DOMA
unconstitutional to the extent it denies legally-married same-sex couples equal
access to federal marriage-based benefits); Massachusetts v. USDHHS, 698 F.
Supp. 2d 234 (D. Mass. 2010) (same); Florida Dept. of Children and Families v.
Adoption of X.X.G., 45 So.3d 79 (Fla. App.3rd Dist. 2010) (state law banning
adoption by same-sex parents violated Equal Protection).
Given these obvious constitutional concerns, if the Court decides to consider
these issues it should construe section 6.204 as permitting the trial court to grant
Naylors petition for divorce. To the extent section 6.204 is construed as preventing
a same-sex couple legally married in another state from obtaining a divorce in Texas,
it runs afoul of (1) the Equal Protection Clause of the Fourteenth Amendment; (2)
the fundamental right to travel; (3) the Due Process Clause of the Fourteenth
Amendment; and (4) the Full Faith and Credit Clause.
1. Because it targets a particular class of persons for
discrimination and because the State can provide no rational
basis for it, the States construction of section 6.204 violates
Equal Protection.
On its face, the Equal Protection Clause of the Fourteenth Amendment
provides: No State shall deny to any person within its jurisdiction the equal
protection of the laws. U.S. Const. amend. XIV, 1. In other words, the
34

Fourteenth Amendment requires that all persons similarly situated shall be treated
alike. Plyler v. Doe, 457 U.S. 202, 216 (1982); accord City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In Bonds v. Foster, 36 Tex. 68
(1871), this Court held the States discriminatory marriage laws were abrogated by
the plain terms of the Fourteenth Amendment.
In Bonds, the Louisiana owner of a female slave took her and her children to
Ohio in 1847, where he emancipated them by deed. Id. Over a period of four years,
the couple established the basis for a common-law or presumptive marriage. Id.
The man then brought his family to Texasand because the marriage was legal in
Ohio, this Court noted their coming to the State of Texas, where the law prohibited
marriage between the white and black races, did not, per se, operate a dissolution of
the marriage, although, at the time, none of the marital rights of the parties could
have been enforced by the laws of Texas. Id. The man then died in 1867, and the
woman sued the mans executor claiming she was entitled to the homestead and
other property as the decedents widow. Id. This Court affirmed the trial courts
recognition of the interracial marriage legally created in Ohio because the Texas law
prohibiting such a marriage had been abrogated by the 14th Amendment to the
Constitution of the United States. Id.
Thus, under Bonds, Texas laws pertaining to marriage that purport to deny
equal protection to a marriage legally created in another state are abrogated by the
plain terms of the Fourteenth Amendment. Adhering to the precedent established
by Bonds, this Court should hold that denying Naylor and Daly equal access to
divorce is likewise abrogated by the plain terms of the Fourteenth Amendment.
35

To reconcile the equal-protection principle with practical necessity, differing
levels of judicial scrutiny determine whether a given law violates the constitutional
prohibition against unequal treatment. See Mauldin v. Texas State Bd. of Plumbing
Examiners, 94 S.W.3d 867, 871 (Tex. App.Austin 2002, no pet.) (identifying strict
and rational-basis levels of scrutiny). A law is constitutionally suspect if it singles
out gays and lesbians for disfavored treatment, or if it withdraws specific legal
protection from gays and lesbians but from no others. See Romer v. Evans, 517
U.S.620, 631 (1996); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004). The
only question is which level of scrutiny applies, to determine whether the law is in
fact unconstitutional.
30
(a) Even under the rational-basis standard, the denial of
equal access to divorce is unconstitutional.

Under rational-basis scrutiny, there must be some rational connection
between the discriminating law in question and a legitimate government interest.
See Perry, 704 F. Supp. 2d at 995 (citing Romer, 517 U.S. at 632) (the court must
insist on knowing the relation between the classification adopted and the object to
be obtained); Ford Motor Co. v. Tex. Dept of Transp., 264 F.3d 493, 506 (5th Cir.
2001) (typically the State has the minimal burden of showing that the law has a
rational basis). To survive rational basis review, a law must do more than
disadvantage or otherwise harm a particular groupit must rationally further

30
The State relies on Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), dismd 409 U.S. 810 (1972),
as controlling on the Equal Protection question. See States br. at 41-42. But the court of
appeals in In re Marriage of J.B. & H.B., 326 S.W.3d at 671-72, rejected this argument, properly
identifying Baker as concerning the creation and recognition of a same-sex marriage on a
going-forward basis; thus, Baker is distinguishable from this case involving a petition for
divorce.
36

some legitimate government interest. United States Dept. of Agriculture v. Moreno,
413 U.S. 528, 534 (1973). Put simply: Under the rational basis test, similarly
situated individuals must be treated equally unless there is a rational basis for not
doing so. Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985).
The State claims it has an interest in protecting the naturally procreative
relationship between a man and a woman, and in promoting the raising of children
by a mother and a father in the context of stable, long-term relationships. States
br. at 45. But in defining and advancing this interest the State makes no distinction
between marriage and divorce. Consequently, the State never connects the dots:
How does denying same-sex couples access to divorce promote procreation in
opposite-sex households? This Court must insist on knowing: What is the rational
relation between allowing only opposite-sex couples to divorce and promoting
stable, long-term relationships for raising children? The States interest in
procreation or child-rearing, no matter how legitimate and worthy of protection,
simply cannot provide a rational basis for allowing legally-married opposite-sex
couples to divorce, while denying similarly situated same-sex couples the same right.
Recently, courts in California and Florida have found no rational basis to
support restrictions against same-sex marriage or adoption by same-sex parents
two scenarios that clearly have procreative or child-rearing implications. Perry
found Californias law restricting marriage to opposite-sex couples failed to pass
constitutional muster, even under rational-basis scrutiny. 704 F. Supp. 2d at 994-
1002. And a Florida appeals court has held that a Florida law banning adoption by
gay parents also lacked any rational basis. X.X.G., 45 So. 3d at 85-92. If a states
37

interests in procreation and child-rearing cannot support restrictions on marriage
or adoption, they cannot rationally support a restriction on divorce.
The importance of the distinction between the right to marry and the right to
divorce cannot be overstated. The State insists it has a legitimate interest in
promoting the procreative relationship, which justifies restricting marriage to
opposite-sex couples. States br. at 44-45. But no matter how vociferously Texas
opposes same-sex marriage, it could not prevent Naylor and Daly from getting
marriedwhich they did, in Massachusetts. Even if the State can show that
classifying persons based on sexual orientation and denying same-sex couples the
right to marry furthers the States interest in promoting the procreative
relationship, this rationale is unavailing here because Naylor and Daly did not seek
to get married. If the State wants to construe section 6.204 as also denying Naylor
and Daly the right to divorce, it must show how this additional, distinguishable
operation of the law rationally furthers the States interest. The State fails to do so.
Instead of showing its construction of section 6.204, as preventing divorce,
reasonably promotes its interests in procreation and child rearing, the State relies
primarily on a court of appeals decision from Indiana to argue that, because
providing divorce to Naylor and Daly does not further the States interest, the State
does not have to provide that divorce. States br. at 45-46 (citing Morrison v. Sadler,
821 N.E. 2d 15, 35 (Ind. Ct. App. 2005)). This turns the standard inside-out.
Under rational-basis review, Equal Protection still requires equal treatment as a
baseline; unequal treatment can be justifiable only if it reasonably furthers the
States legitimate interests. See Whitworth, 699 S.W.2d 194, 197 (Tex. 1985) (citing
Sullivan v. University Interscholastic League, 616 S.W.2d 170, 172 (Tex. 1981)); see
38

also Romer, 517 U.S. at 633; Moreno, 413 U.S. at 534. The States contention that it
does not have to provide equal treatment unless that equal treatment furthers its
interests should be rejected out of hand.
31
Lastly, to the extent the State relies on the traditional institution or
traditional definition of marriage as a legitimate interest advanced by the States
construction of section 6.204, see States br. at 44-45, it relies on a tautology: i.e.,
We have a reasonable basis for doing what we are doing because it is what we have
always done. Doing something cannot itself be justification for doing it. And
neither the antiquity of a practice nor the fact of steadfast legislative and judicial
adherence to it through the centuries insulates it from constitutional attack.
Williams, 399 U.S. at 239.

Any construction of section 6.204 that denies Naylor and Daly equal rights to
a divorce, as enjoyed by legally-married opposite-sex couples, violates the Equal
Protection Clause.
(b) Because section 6.204 implicates fundamental rights and
targets a particular class of persons for discrimination,
strict scrutiny should apply.
A law is evaluated under strict scrutiny if it implicates a fundamental right or
discriminates against a suspect class. Romer, 517 U.S. at 631. Choices related to
marriage constitute fundamental rights. See M.L.B. v. S.L.J., 519 U.S. 102, 116
(1996) (Choices about marriage are sheltered by the Fourteenth Amendment);

31
Morrison involved an Indiana statutes constitutionality under the Indiana Constitution. 821
N.E. 2d at 35. Indiana constitutional law is irrelevant here. The State also cites Citizens for
Equal Protection v. Bruning, 455 F.3d 859, 868 (8th Cir. 2006), and Johnson v. Robinson, 415
U.S. 361, 383 (1974)but those cases both held the unequal treatment at issue rationally
furthered the governments interest. Neither case supports the States inverted proposition that
it does not have to provide equal treatment unless it furthers the States interest.
39

Zablocki v. Redhail, 434 U.S. 374, 383-84 (1978) (right to marry is fundamental);
Loving v. Virginia, 388 U.S. 1, 13 (1967) (right to marry is fundamental); Richards
v. League of United Latin Am. Citizens, 868 S.W.2d 306, 314 (Tex. 1993)
(recognizing marriage and certain aspects of personal privacy as fundamental
rights). And the federal court in Perryafter extensive evidentiary inquiryheld
the fundamental right to marry includes the right to marry someone of the same sex.
704 F. Supp. 2d at 991-94 (holding strict scrutiny applies to a law restricting
marriage to opposite-sex couples). Again, whether same-sex marriage is a
fundamental right is not at issue herebut for any legally-married couple, divorce
is undeniably a choice about marriage. The right to divorce therefore is
recognized as fundamental and sheltered by the Fourteenth Amendment. See
M.L.B., 519 U.S. at 116; Boddie, 401 U.S. at 383 (divorce is an adjustment of
fundamental human relationships and thus a fundamental liberty interest).
32
But even if the right is not considered fundamental, strict scrutiny should
nevertheless apply because section 6.204 discriminates against a suspect class.
Suspect classes include gender, race, alienage, and national origin. Frontiero v.
Richardson, 411 U.S. 677, 688 (1973). But according to the U.S. Supreme Court,
this list is not exhaustive; a suspect class is one that includes individuals who
possess an immutable characteristic determined solely by the accident of birth, id.
See
also Williams, 325 U.S. at 230 (divorce affects personal rights of the deepest
significance); Ivy, 177 S.W.2d at 239 (The right to prosecute a divorce suit is
personal.).

32
The State argues there is no fundamental right to same-sex divorce. States br. at 48. But this
mischaracterizes the right in question. See Section III.B.3. below.
40

at 686, or persons who have been subjected to such a history of purposeful unequal
treatment, or relegated to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process. Mass. Bd. of Ret.
v. Murgia (Murgia), 427 U.S. 307, 313 (1976) (per curiam); San Antonio ISD v.
Rodriguez, 411 U.S. 1, 28 (1973).
Regarding gays and lesbians as a class, studies show homosexuality has a
genetic component.
33
Studies also show homosexuality is biological and
determined largely at birth.
34
Further, the history of purposeful unequal treatment of gays and lesbians is
undeniable.
After hearing extensive evidence on this question
from both sides, the Perry court found that sexual orientation is fundamental to a
persons identity and is a distinguishing characteristic that defines gays and lesbians
as a discrete group. 704 F. Supp. 2d at 964.
35

33
See Stefan Anitei, Homosexual by Birth, Softpedia (Dec. 8, 2006),
[F]or centuries there have been powerful voices to condemn
http://bit.ly/Y5NX5
(homosexuality may be determined by a polymorphic gene); Andrea Camperio-Ciani,
Francesca Corna, and Claudio Capiluppi, Evidence for maternally inherited factors favouring
male homosexuality and promoting female fecundity, Proc. Biol. Sci. (Oct. 18, 2004),
http://1.usa.gov/pTy5cw (two lines of evidence point to genetic factors being partially
associated with human male homosexuality).
34
See E. Gary Spitko, A Biologic Argument for Gay Essentialism-Determinism: Implications for
Equal Protection and Substantive Due Process, 18 U. Haw. L. Rev. 571, 576-584 (1996)
(discussing biological influences on sexual orientation); Sandi Doughton, Born gay? How
biology may drive orientation, Seattle Times (June 19, 2005), http://bit.ly/tggXM (Its pretty
definitive that biological factors play a role in determining a persons sexual orientation.);
American Psychological Association, What causes a person to have a particular sexual
orientation?, http://bit.ly/b3Iy4Q (most people experience little or no sense of choice about
their sexual orientation).
35
See Perry, 704 F. Supp. 2d at 940-41; Christopher R. Leslie, Creating Criminals: The Injuries
Inflicted by Unenforced Sodomy Laws, 35 Harv. C.R.-C.L. L. Rev. 103, 175 (2000) (Although
most sodomy statutes are facially neutral, they are selectively enforced against gay men and
interpreted by courts and citizens as proscribing only same-sex conduct.); Carlos A. Ball,
Privacy, Property, and Public Sex, 18 Colum. J. Gender & L. 1, 49 n.166 (2008) (pointing to
evidence that law enforcement officials target gay men for unequal enforcement of solicitation
41

homosexual conduct as immoral. Lawrence v. Texas, 539 U.S. 558, 559 (2003).
And the State has touted the large political majority that supported the passage of
laws banning same-sex marriage in Texasbut this only demonstrates that gays
and lesbians have been relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process. See
Murgia, 427 U.S. at 313. For all these reasons, classifications based on sexual
orientation should be viewed as suspect.
Because section 6.204, when construed to deny legally-married same-sex
couples equal access to divorce, implicates fundamental rights and relies on a
suspect classification for a discriminatory purpose, it should be subjected to strict
scrutiny. And under strict scrutiny, the burden is on the State show the
classification and the restriction are necessary and narrowly tailored to advance a
compelling state interest. Perry, 704 F. Supp. 2d at 995 (citing Carey v. Population
Services International, 431 U.S. 678, 686 (1977)). The State has made no effort to
carry this burdenhaving simply presumed rational-basis scrutiny applies.
36
The State cannot meet its burden under strict scrutinyand even if rational-
basis scrutiny applies, the State still cannot explain the rational connection between
its defined interests and the denial of equal access to divorce. Thus, to the extent
section 6.204 is construed as preventing the trial court from hearing or granting an
uncontested petition for divorce, the provision is unconstitutional under the Equal
Protection Clause of the Fourteenth Amendment.

and public lewdness laws); Susan Ferriss, History of discrimination against gays cited in Prop 8
trial, McClatchy (January 13, 2010), http://bit.ly/oi3NT0.
36
The State makes no attempt to show why the classification based on sexual orientation is not
suspect; instead, it merely declares strict scrutiny does not apply because no court has held the
class to be suspect. States br. at 43 n.29. But this ignores Perry, 704 F. Supp. 2d at 991-94.
42

2. Because it serves to penalize legally-married same-sex couples
who migrate to Texas by denying them equal access to divorce,
section 6.204 violates the right to travel.
Closely related to equal protection, the freedom to travel has long been
recognized as a basic right under the Constitution, and this freedom includes the
freedom to enter and abide in any State in the Union. Attorney General of New
York v. Soto-Lopez, 476 U.S. 898, 901-02 (1986) (internal quotations omitted); see
also Richards v. LULAC, 868 S.W.2d 306, 314 (Tex. 1993) (acknowledging the right
to travel as fundamental). This principle of free interstate migration has
unquestioned historic acceptance and is firmly established. Soto-Lopez, 476 U.S.
at 902-03.
37
The difference between the equal-protection analysis and the right-to-travel
analysis is in the nature of the comparison. By treating same-sex couples legally
married in another state differently from similarly situated opposite-sex couples
legally married in another state, the court of appeals construction of section 6.204
violates equal protection, as discussed above. But by treating migrants who have a
A state law implicates the right to travel when it actually deters such
travel, when impeding travel is its primary objective, or when it uses any
classification which serves to penalize the exercise of that right. Id. at 903 (internal
quotations omitted). For example, a state law classifying migrants according to the
time they established residency, so as to treat them differently from other state
citizens in the distribution of rights and benefits, is unconstitutional. Id. at 903-04.

37
The right to travel has been identified as rooted in both the Fourteenth Amendments Privileges
or Immunities Clause and Article IV, section 2s Privileges and Immunities Clause. Saenz v.
Roe, 526 U.S. 489, 501-03 (1999). But the U.S. Supreme Court has declared: Whatever its
origin, the right is firmly established. Soto-Lopez, 476 U.S. at 902.
43

legal marriage differently from Texas citizens who have a legal marriage, the court
of appeals construction of section 6.204 also violates the right to travel.
A law enacted with the purpose of deterring migration would be
unequivocally impermissible. Saenz v. Roe, 526 U.S. 489, 506 (1999). But
evidence of actual deterrence is unnecessary; where a classification operates to
penalize those persons who have exercised their constitutional right of interstate
migration, [that classification] must be justified by a compelling state interest.
Memorial Hospital v. Maricopa County, 415 U.S. 250, 258 (1974) (internal
quotations omitted).
Arguably, the States construction of section 6.204 deters legally-married
same-sex couples from migrating to Texasbut more importantly, it indisputably
serves to penalize legally-married same-sex couples who do migrate to Texas, by
irretrievably foreclosing their ability to get a divorce. See Sosna v. Iowa, 419 U.S.
393, 406 (1975) (durational residency requirement for divorce was permissible
because Appellant was not irretrievably foreclosed from obtaining what she
sought; She would eventually qualify for the [divorce] she demanded virtually
upon her arrival in the State.).
For these reasons, to the extent section 6.204 is construed as preventing a
legally-married migrant couple from obtaining a divorce in Texas, it violates the
fundamental right to travel and should be ruled unconstitutional.
3. Because it deprives Naylor and Daly of their fundamental right
to a divorce and of their procedural right to be heard, the States
construction of Section 6.204 violates Due Process.
On its face, the Due Process Clause of the Fourteenth Amendment protects
against a States attempts to deprive any person of life, liberty, or property, without
44

due process of law. U.S. Const. amend. XIV, 1, cl. 3. A state law that deprives an
individual of a fundamental liberty interest violates Due Process unless it survives
strict scrutiny. Reno v. Florez, 507 U.S. 292, 301-02 (1993) ([C]ertain
fundamental liberty interests cannot be interfered with at all, no matter what
process is provided, unless the infringement is narrowly tailored to serve a
compelling state interest.); Boddie, 401 U.S. at 382-83. In Lawrence v. Texas, the
Supreme Court recognized that personal decisions relating to marriage,
procreation, contraception, family relationships, [and] child rearing are protected
from unwarranted intrusion by the state, and [p]ersons in a homosexual
relationship may seek autonomy for these purposes, just as heterosexual persons do.
539 U.S. at 574. In short, a persons marriage constitutes a fundamental liberty
interest protected by the Due Process Clause.
As discussed above, divorce, too, constitutes a fundamental liberty interest as a
personal decision[] relating to marriage. See Lawrence, 539 U.S. at 574; Boddie,
401 U.S. at 380-81; Perry, 704 F. Supp. 2d at 991-95; Loving, 388 U.S. at 12; U.S.
Const. amend. XIV, 1, cl. 3). Yet section 6.204, as construed by the State, deprives
Naylor and Daly of their right to divorce. In discussing whether there is a
fundamental right at issue here, under Due Process, the State again focuses on
marriage instead of divorce. States br. at 46-47.
Moreover, the State relies on Washington v. Glucksberg, 521 U.S. 702, 720-21
(1997), to characterize the right at issue as the right to a same-sex divorce. States
br. at 47-48. But Glucksberg merely requires a careful description of the right at
issue, and was concerned with the subtle distinctions between the right to choose a
humane, dignified death, the right to die, and the right to commit suicide. 521
45

U.S. at 722-23. Glucksberg does not support the States narrow characterization of
the right at issue. To the contrary, as the Supreme Court made clear in Lawrence,
the right at issue must not be construed too narrowly. Lawrence, 539 U.S. at 566-67,
578 (rejecting Bowers v. Hardwicks characterization of the right at issue as the
right of homosexuals to engage in sodomy, and instead characterizing it as an
individuals right to privacy in sexual conduct).
This Court should reject the States narrow, Bowers-like description of the
right at issue, and insteadrelying on Boddie et al.construe it as the right of
legally married couples to divorce. This right is fundamental, and construing
section 6.204 to deprive Naylor and Daly of this right violates Due Process.
Further still, the right to due process under the Fourteenth Amendment
protects the right to a meaningful opportunity to be heard against denial by
particular laws that operate to jeopardize it for particular individuals. Boddie, 401
U.S. at 379-80. The State of Texas owes each individualincluding parties to a
same-sex marriage legally entered into in another statethat process which, in
light of the values of a free society, can be characterized as due. See id. at 380. In
Boddie, an indigent couple that met all the requirements for a divorce sought a
divorce, but was denied access to the court because they could not afford the filing
fee; the U.S. Supreme Court held this was a denial of due process because the
couple was denied access to justice from the only legal forum available to them. Id.
As advocated by the State, section 6.204 operates like the filing fee in Boddie,
by denying Naylor and Dalywho otherwise met all the requirements for a
divorceaccess to justice from the only forum available to them. This is the
epitome of denying procedural due process.
46

To the extent section 6.204 is construed to prevent the trial court from hearing
or granting a divorce to a same-sex couple legally married in another state, it
violatesboth substantively and procedurallythe Due Process Clause of the
Fourteenth Amendment. Therefore this Court should avoid such a construction
and its constitutional ramifications.
4. By forcing Naylor and Daly into voidance, the State of Texas
discriminates against the laws of another state and thereby
violates Full Faith and Credit.
Article IV, section 1 of the U.S. Constitution reads: Full faith and credit shall
be given in each state to the public acts, records, and judicial proceedings of every
other state. And the Congress may by general laws prescribe the manner in which
such acts, records, and proceedings shall be proved, and the effect thereof. And
section 2 provides: The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states. U.S. Const. art. IV, 12.
The animating purpose of the full faith and credit command, was to make
[the several states] integral parts of a single nation throughout which a remedy
upon a just obligation might be demanded as of right, irrespective of the state of its
origin. Baker by Thomas v. General Motors Corp., 522 U.S. 222, 232 (1998); see
also Estin, 334 U.S. at 546 (the Full Faith and Credit Clause substituted a
command for the earlier principles of comity and thus basically altered the status of
the States as independent sovereigns). In effect, the Full Faith and Credit Clause
imposes a constitutional rule of decision on state courts; that is, a rule by which
courts are to be guided when a question arises in the progress of a pending suit as
to the faith and credit to be given by the court to the public acts, records, and
judicial proceedings of a State other than that in which the court is sitting.
47

Thompson v. Thompson, 484 U.S. 174, 182-83 (1988). The rule of decision is that
the forum state shall give full faith and credit to those acts, records, and
proceedings of the sister state.
In other words, by purporting to direct Texas trial courts to give no effect
whatsoever to a Massachusetts marriage, section 6.204 violates Full Faith and
Credit. Moreover, insofar as section 6.204 is construed as denying access to a Texas
trial court in which to bring a petition for divorce in the first place, it violates the
Privileges and Immunities Clause.
The Full Faith and Credit Clause is attended by what has been called the
enforcement provision,
38
The plain text of the enforcement provision states simply that Congress can
prescribe (a) the manner in which the acts, records, and proceedings of other
states shall be proved, which plainly refers to evidentiary matters, and (b) the
effect thereof. DOMA appears to have nothing to say about (a) and instead focuses
on (b), purporting to relieve the states of any obligation to give effect to an act,
which provides: Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be proved,
and the Effect thereof. U.S. Const. art. IV, 1. And on this hook hangs the
Defense of Marriage Act (DOMA), 28 U.S.C. 1738C, which purports to enable
states to escape their obligations under Full Faith and Credit when it comes to
same-sex marriage. But DOMA must be read narrowlybased on the plain text of
the Constitution and on the principle that a statute cannot undo, overrule, or repeal
a constitutional provision.

38
See L. Lynn Hogue, The Constitutional Obligation to Adjudicate Petitions for Same-Sex Divorce
and the Dissolution of Civil Unions and Analogous Same-Sex Relationships: Prolegomenon to a
Brief, 41 Cal. Western Intnl L. J. 229, 246-247 (Fall 2010).
48

record, or proceeding that creates or recognizes a same-sex marriage. See 28 U.S.C.
1738C.
On its face, DOMA appears to undo Full Faith and Credit altogether when it
comes to same-sex marriageand this is the ground on which the court of appeals
construction of section 6.204 implicitly stands. But to read DOMA this broadly is
to misread the text of the Constitution, which says full faith and credit shall be
given to the acts of another state, and Congress can prescribe the effect of those
acts. U.S. Const. art. IV, 1 (emphasis added). In plain terms, this means DOMAs
declaration that states do not have to give effect to a same-sex marriage refers only
to micro-level matters of enforcement; DOMA cannot undo Full Faith and Credit
altogether.
39
For example, DOMA might relieve Texas of the obligation to give effect to an
ongoing same-sex marriage from Massachusetts when it comes to enforcement of
marriage-based claims to insurance coverage, state tax benefits, hospital visitation
rights, and so forth. But DOMA cannot abrogate altogether the Full Faith and
Credit Clause, or something so fundamental as the right to divorce. Put another
way, given the purpose of Full Faith and Creditto reduce interstate conflict and
foster friendly cooperation among the states

40
DOMA must be read as permitting
one state to ignore or reject the acts of another state only insofar as it does not
create serious conflict.
41

39
See Hogue, supra note 4, at 246-247; David E. Engdahl, The Classic Rule of Faith and Credit,
118 Yale L. J. 1584 (2009).
Relieving one state of the obligation to give effect to an
40
See Baker by Thomas, 522 U.S. at 232; Estin, 334 U.S. at 546.
41
See generally Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional
Public Policy Exception, 106 Yale L. J. 1965, 1983 (May, 1997), and specifically at 2003 (the
words of the Full Faith and Credit Clause lose meaning if Congress can simply legislate the
requirement away).
49

ongoing same-sex marriage from another state, so as to allow the denial of
marriage-based claims to state tax benefits, for example, creates no serious conflict
between the states. But refusing access to divorce and forcing legally-married
couples into voidance procedures creates conflict and confusion between the states,
as described above, and violates Full Faith and Credit by discriminating against the
laws of other states under the guise of merely affecting the remedy. See Broderick
v. Rosner, 294 U.S. 629, 642-43 (1935).
Prayer
For these reasons and in the interest of justice, Naylor and Daly respectfully
request that the Court deny the States petition for review, or, in the alternative, that
the Court affirm the court of appeals judgment, or in the further alternative, if this
Court holds the State had a right to intervene, then Naylor and Daly ask the Court
to remand to the court of appeals to consider the substance of the trial courts
judgment. Finally, Naylor and Daly request any other relief the Court deems just
and proper.

50

Respectfully submitted,

By: /s/ James J. Scheske
James J. Scheske
Jason P. Steed
Akin Gump Strauss Hauer
& Feld LLP
300 W. 6th Street, Suite 1900
Austin, Texas 78701
Telephone: (512) 499-6200
Facsimile: (512) 499-6290

Angelique Naylor

Robert B. Luther
Law Offices of
1800 Rio Grande
Austin, Texas 78701
Telephone: (512) 477-2323
Facsimile: (512) 478-1824
Email: rbluther@luthlaw.com

Sabina Daly

51

Certificate of Service
I hereby certify that a true and correct copy of the foregoing Respondents
Joint Response to the States Brief on the Merits was forwarded to counsel of
record by email and certified mail, return receipt requested, on this 17th day of
October, 2011.

James D. Blacklock
Office of the
Attorney General
P.O. Box 12548 (MC 059)
Counsel for Petitioner
State of Texas

Robert B. Luther
Law Offices of
1800 Rio Grande
Austin, Texas 78701
Sabina Daly

/s/ James J. Scheske
James J. Scheske

No. 11-0114


The State of Texas,
Petitioner,

v.

Respondents.

Case No. 03-10-00237-CV

Appendix
to Respondents Joint Response
to the States Brief on the Merits

Tab 1: States Plea in Intervention in Hodges
Tab 2: States Response to Plaintiffs Motion for Summary Judgment and States
Cross-Motion for Summary Judgment and Brief in Support in Wilson
Tab 3: States Plea in Intervention in Corpus Christi
Tab 4: States Plea in Intervention in Silica Products
Tab 5: States Unopposed Motion to Intervene in Watson

Tab 1
"I '-.1
.. ' .
I ,.
e
. t-\\ t:_D
,CAUSE NO. 2002-1527-1
i
, .. - (l1
?,Q fl.'"
DAVID A. HODGES,
Plaintijj;

,
,
McLENNAN COt}NTY DEMOCRATIC
PAR1Y and JOHNCULLAR, in his
capacity as COWlty Chair of the
, McLennan County Democratic Party,
Defendants. 19
th
JUDICIAL DISTRICT
The Attorney General of the State of Texas'files this Plea in Intervention, as follows:
1. This lawsuit was brought by Plaintiff, David Hodges, to obtain declaratory and injunctive
relief pursuant to the Uniform Declaratory Judgments Act, Chapter 37, Texas Civil Practice &
Remedies Code.
2. Because this lawsuit contends that Section 162.015 of the Election Code if consistently
applied to Plaintiffwould be unconstitutional, the Attorney General is entitled to notice and hearing.
Tex.Civ. Prac. &'Rem. Code 37.006 (b).
3. The Attorney General, baving been notified that Plaintiff that the statute is
t
unconstitutional, appears by this pleading, and respectfully seeks to be heard.
WHEREFORE, Texas Attorney General John COIl\Yn respectfully prays the Court grant this
plea in intervention, and order that the Clerk of the Court list him as an interested party to this case,
and that he be provided such notice and other courtesy as is appropriate to any party, and for such
other and further relief to which he may show himself entitled.
Respectfully. submitted,
JOHNCORNYN
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
JEFFREY S. BOYD
Deputy Attorney General for

. MICHAEL WINGET-HERNANDEZ
Texas Bar No. 21769650 .
Assistant Attorney General
General Litigation Division
P.O. Box Capitol Station
[512} 463-2120; Fax: [512] 320-0667
Attorlleys For Intervenor, State of Texa
CERtIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been servetl by
/(IX lIltd replar IIUIil on this the 29th of May, 2002, to:
Roy L. Barrett
NAMAN, HOWELL, SMITH & LEE. P.C.
900 Washington, "fh Floor
P.O. Box 1470 .
Waco, Texas 76703-1470
FAX: [254] 754-6331
ATIURNEY GENERAL CoRN\'N's PLEA IN INTERVEN110N
John Cullar
Attorney at Law
801 Washington, Suite 217
Waco, Texas 76701

Assistant Attomey
Pagel
iWffU

Tab 2
No. 96-554-584
MARY ANDREWS, in her official capacity
as Civil Service Director of the City of
Lubbock, Texas, and as Managing Director
of Human Resources for the City of Lubbock,
Texas; KEN WALKER, in his official capacity
as Chief of Police of the City of Lubbock,
Texas; and THE CITY OF LUBBOCK,
TEXAS,
Plaintiffs,
V .
ERIC M. WILSON,
Defendant,
IN THE 99TH DISTRICT COURT
OF
LUBBOCK COUNTY, TEXAS'?
TEXAS ATTORNEY GENERAL'S RESPONSE TO PLAINTIFFS'
Mang:InaY a AR JUDGMENT ORNEASzENEBALI
CROSS-MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT
TO THE HONORABLE JUDGE OF THE DISTRICT COURT:
NOW COMES, The Attorney General for the State of Texas, and files this Response
Plaintiffs' Motion for Summary Judgment and Cross Motion for Summary Judgment pursuant tO
Rule 166a of the Texas Rules of Civil Procedure and would respectfully show this Court the
following:
FACTUAL AND PROCEDURAL BACKGROUND
On Januaty 4, 1996, Defendant Eric M. Wilson (Wilson), was suspended for 10 days withotit
pay. See Plaintiffs' Original Petition, p.2. On January 4, 1996, Wilson gave his notice of appeal
stating that he intended to appeal the decision to a third-party hearing examiner pursuant to TEX.
Loc. GOV 'T CODE 143.057, instead of appealing the decision to the Civil Service Commission,,
By doing so, Wilson waived the right to appeal to appeal a subsequent decision to a district court
for review.
06STSU-908 91:00 TTOVEZ/60 ZO 39Vd Ad310 loIdiSIG
On Febniaty 2, 1996, Plaintiffs' filed this suit seeking a declaratory judgment requesting the
trial court to find that they are not obligated to follow the provisions of TEX. Loc. GOV 'T CODE
143.057. Pursuant to TEX. Civ. PnAc. & REM. CODE ANN. 37.006(b), the Attorney General Was '
given notice of the challenge to the constitutionality of 143.057. Pursuant to 143.057, the parties
are to attempt to agree on a third-party hearing examiner. In the event that the parties cannot agree,
the Plaintiffs request a list of seven names from the American Arbitration Association (AAA) or
the
Federal Mediation and Conciliation Service (FMCS). If the parties are unable to agree on a third-
party hearing examiner from that list, then the parties are required to alternately strike the name of
a person until there is only one name remaining. The remaining name is then automatically selected
as the third-party hearing examiner.
Plaintiffs filed a motion for summary judgment on November 11, 1996. Pursuant to that
motion, the Plaintiffs contend that summary judgment is appropriate because (1) the City of
Lubbock has not enacted TEX. Loc. GOV 'T CODE ch. 143; (2) the Texas Legislature cannot preem
bmad powers granted to home-rule cities; (3) the words "qualified" and "neutral" as they appear Ii
TEL LOC. GOV 'T CODE 143.057 are unconstitutionally vague; (4) 143.057 is an unconstitutional H
delegation of legislative authority, (5) 143.057 is unconstitutional because it creates au
impermissible bias in the third-party hearing examiner; and (6) 143.057 is an unconstitutional
infringement on the City's constitutionally delegated governmental authority.
Defendant Wilson and the Attorney General, as a real party in interest, now file a response
to Plaintiffs' Motion for Summary Judgment and a Cross Motion for Summary Judgment.
Attorney General hereby contends that (1) the Plaintiffs are barred from challenging
Texas Attorney General's Response to Plaintiffs' Motion
for Summary Judgment and Texas Attorney General' Cross
Motionfor Summary Judgment and Brief inSupport
Page 2
OESTSU-908 91:00 TTOVEZ/60 CO 39Vd Ad310 loIdiSIG
constitutionality of the statute based on due process; (2) TEX. Loc. GOV'T CODE 143.057 i
effect in the City of Lubbock; (3) the words "qualified" and "neutral" as they appear in 143.057
are not unconstitutionally vague and meaningless; and (4) 143.057 is not an unconstitutional
delegation of legislative authority. The Attorney General hereby incorporates the response to
Plaintiffs motion for summary judgment and the grounds by which Defendant Wilson moves fin'
summary judgment.
The Attorney General requests that the Plaintiffs' Motion for Summary Judgment be denied
and the summary judgments of the Attorney General and Defendant Wilson be granted.
IL
ARGUMENT AND AUTHORITIES
A. Standard for Motionfor Summary Judgment.
The purpose of summary judgment is to permit the trial court to dispose promptly of cases
that involve unmeritorious claims or untenable defenses. Cily
of Houston v. Clear Creek Basin
Authority,
589 S.W.2d 671, 678 (Tex. 1979). The movant must show that there is no genuine issue
of material fact and that it is entitled to judgment as a matter of law.
Wilcox v. St. Mary's University
of San Antonio,
531 S.W.2d 589, 592 (Tex. 1975). A "genuine issue of material fact" exists if
reasonable person may differ as to the controlling facts based on the
evidence before the court
Portnow v. Berg,
593 S.W.2d 843, 845 (Tex. Civ. App.--Houston [1st Dist] 1980, writ refd n.r.
Unless there is a material issue of fact upon which a reasonable person could differ, in other wo
a "genuine issue," summary judgment should be granted. Id.
Where cross motions for summary judgment are filed, each party must carry its own burden
and neither can prevail due to the other's failure to meet its burden.
Cove Investments Inc. v.
for Summary
Judgment and Tens Attorney General' Cross
Motion for Summary
Judgment and Brief in Support
Page 3
06STSU-908 91:00 TTOVEZ/60 V O 39V d Ad310 loIdiSIG
Manges,
602 S.W.2d 512, 514 (Tex. 1980). If the trial court's order granting one summary
judgment and denying another does not specify the grounds upon which it is based, the appellate
court may affirm if any of the grounds raised by the prevailing movant's motion are meritorious.
Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
B.
Plaintiffs lack standingto challenge the constitutionality of TEL LOC GOV'T CODZ
ANN. 143.057 based onvagueness or the alleged denial of due process.
As a threshold procedural issue, Plaintiffs lack standing to challenge the constitutionality of
a state statute based on vagueness or based on an alleged denial of due process or due course of law.
In this case, the Plaintiffs have the same powers as cities whose very existence derive from the state,
Unlike individual capacity defendants, cities and officials acting in their official capacities have only
those constitutional privileges specifically granted to them by the state constitution. Becau
right to due process and due course of law are not privileges specifically granted in the constitution
to political subdivisions, the City of Lubbock and the Plaintiffs in their official capacities may not
challenge the statute based on the alleged denials of those rights.
Political subdivisions of the state are not permitted to challenge the constitutionality of state
statutes unless the statute abrogates privileges specifically granted to political subdivisions by the
state constitution.
See Deacon v. City of Euless,
405 S.W.2d 59, 62 (Tex. 1966) (political
subdivision may only exercise powers expressly conferred on it);
Collier v. Poe, 732 S.W.2d 332,
343 (Tex. Cr, App. 1987) (political subdivisions may not challenge validity of state statute under
Fourteenth Amendment);
Colony Municipal Utility Dist. No. I of Denton County v. Appraisal Dist_
of Denton County,
626 S.W.2d 930, 932 (Tex. App.--Fort Worth 1982, writ ref d n.r.e.) ("The ii
of equal protection of laws and due process of law are rights vested only in persons not in political
for Summary
Judgment and Texas Attorney General' Cross
06STSU-908 91:00 TTOV EZ/60 SO 39V d Ad310 loIdiSIG
subdivisions."); McGregor v. Clawson,
506 S.W.2d 922, 929 (Tex. App.--Waco 1974, no writ) ("An
agency created by the State for the better ordering of government has no privileges, immunities, or
rights under the State or Federal Constitutions.").
The Plaintiffs may not challenge 143.057 because a political subdivision or state agency
has no standing to bring state constitutional challenges against a statute on grounds that the entity
was denied due process, equal protection, or that an obligation of a contmct was impaired. Harris
County v. Dowlearn, 489 S.W.2d 140, 145 (Tex. App.--Houston [14th Dist] 1972, no writ),
citing
Griffin v. County Sch. Board of Prince Edward County, 577 U.S. 218, 84 S.Ct. 1226 (1964). A
political subdivision does not have standing to challenge a denial of due process.
E.g., City of
Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534 (1923); Williams v. Mayor of Baltimore, 289 US.
36, 53 S.Ct. 431 (1933); Colony Municipal Utility Dist., 626 S.W.2d 930; Collier v. Poe, 732
S.W.2d 332 at 343-44; Texas v McDonald, 676 S.W.2d 371 (Tex. Cr. App. 1984). The Court of
Criminal Appeals has held that "due process and due course of law are guarantees to citizens and
not their governments or their agents." Collier v. Poe, 732 S.W.2d at 344. In other words, a
subdivision "created by a State for the better ordering of government has no privileges, immtmities,
or rights under the State or Federal Constitutions which it may invoke in opposition to the will of
its creator." McGregor v. Clawson, 506 S.W.2d 922 at 929 (holding that Article One, 19 of Texas ,
Constitution granting due process and due course of law did not apply to state agency). See also
Parker County v. Weathorford D., 775 S.W.2d 881, 887 (Tex. App.--Fort Worth 1989), rev 'd on
other grounds, 794 S.W.2d 33 (rex. 1990) (school district could not maintain impaimient of contract
or due process challenge to statute).
Page
99 39Vd Ad310 loIdiSIG 06STSU-908 91:00 TI9VEZ/60
Any alleged denial of due process or due course of law cannot be maintained by the Plaintiffs
because those rights may only be asserted by an individual, not by a political subdivision. For that
reason, the Plaintiffs does not have standing to challenge this statute and this motion for summary
judgment should be granted.
C. Section143.057 is in effect inthe City of Lubbock
Plaintiffs contend that the statute which provides for a third party hearing examiner is not
in effect in the City of Lubbock because the statute has been amended and the amendment was
not
approved by the voters of the City of Lubbock.
Chapter 143 is a recodification of the Civil Service Statute into the Texas Local Govetmnent
Code. The Revisor's Notes to 143.057 indicate that the law was revised to clarify the section as
it appeared in Art. 1269m. Thus, the content of 143.057 existed prior to the recodification.
A revision or recodification of law is considered as a continuation of previously existing law.
Deep East Texas Reg. MEWS v. Kinnear, 877 S..2d 550 (Tex. App.--Beaumont 1994, no writ)
(citations omitted). Plaintiffs appear to contend that 143.057 was an entirely new enactment.
See
Plaintiffs' Brief in Support, p. 7. However, the language was in effect prior to the recodification of
Art. 1269m. See Exhibit A: Copy of V .A.C.S. 12691n 16c, from the 1987 Pocket Part. SectiOn
16c provides the avenue for an officer to appeal the suspension or termination to a third-party
hearing examiner. Section 143.057 is merely a recodification of 16c. Compare
Exhibit A and
TEX. Loc. GOV'T CODE 143.057.
In addition, the Plaintiffs have been operating under Chapter 143 since the statute was
recodified. The notice of suspension that was handed down by Plaintiff Walker indicates that the
Motionfor Summary Judgment and Brief inSupport Page 6
LO 39Vd Ad310 loIdiSIG 06STSLL-908 91:00 TIOVEZ/60
suspension in question was conducted pursuant to Chapter 143. See Plaintiffs' Attachment to
Plaintiffs' First Amended Original Petition.' In the Notice of Appeal section of the Suspension
Order and Statement of Charges, Defendant Wilson was informed of the method to have his appeal
heard by a third-patty hearing examiner pursuant to 143.057, instead of the Civil Service
Commission. The Plaintiffs are barred from asserting that Ch. 143 is not in effect in the City of
Lubbock when the very suspension that led to this litigation resulted from the Plaintiffs issuing the
suspension pursuant to Chapter 143-
D. The words "qualified" and "neutral" inTEL LOC. GOV'T CODE ANN. 143.057
are not
unconstitutionally vague.
In determining the constitutionality of a state statute, the Courts are guided by
Article 311.021 of the Texas Code Construction Act. Blair v. Razis, 926 S.W.2d 784, 787 (Tex.
App-1)4er 1996, no writ) citing, Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Mt.
1990) (orig. proceeding); and Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983). State statutes are
presumed to be constitutional with any and all doubts concerning constitutionality to be resolved
in favor of the statute's constitutionality. Id "If it is possible to give a reasonable interpretation to
the language in the statute, we must construe the statute in a manner that renders it constitutional."
Id
In Blair, the Court dealt squarely with the issue of whether the words "qualified" and
"neutral" as they appear in TEX. Loc. GOV'T CODE 143.057 were unconstitutionally vague. The
Court wrote:
A copy of the Exhibit to Plaintiffs' First Amended Original' Petitionis attached to this motionas Exhibit
B.
Teas Attorney General's Response to Plaintiffs' Motion
Page 7
06STSU-908 91:00 TT9V EZ/60 89 39V d Ad310 loIdiSIG
The term "qualified" is defined as "adapted; fitted; entitled; susceptible;
capable . . . ." BLACK'S LAW DICTIONARY 1116 (5th ed. 1979). In ordinary usage,
"qualified" is defined as "having complied with specific requirements?' WEBSTER'S
NEW COLLEGIATE DICTIONARY 963 (9th ed. 1984). A plain reading of the Act
indicates that the legislature's intent in providing these modifiers was to ensure that
a capable person was selected as a third party hearing examiner.
The term "neutral" is defined as "indifferent; impartial; not engaged on the
other side ... ?' BLACK'S LAW DICTIONARY 795 (5th ed. 1979). Again, in common
usage, the term is defined as "not engaged on either side . . . aligned with a political
or ideological grouping." WEBSTER'S NEW COLLEGIATE DICTIONARY (9th ed. 1984).
Comparing the dictionary definitions in both legal and coMmon contexts, we find no
distinction between the terms. Therefore, we conclude that the words "qualified"
and "neutral" have commonly understood meanings and are not vague or
indefinite inthe context of the statute.
Id. at 787 (emphasis added).
In this case, the Plaintiffs bring the identical challenge that was adjudicated by the Blair
Court. Plaintiffs contend that the words "qualified" and "neutral" as they appear in 143.057 are
unconstitutionally vague. The Plaintiffs do not point to any caselaw or statute that distinguishes the
Court's ruling in Blair. Rather, Plaintiffs repeat the same argument that was rejected in Blair.
Compare Blair, 926 S.W.2d at 786-7 to Plaintiffs' Brief in Support of Motion for Summary
Judgment, pp. 4-10.
Plaintiffs' motion for summary judgment should be denied because the statute is not
impermissibly vague. "A vagueness challenge will be upheld only if the enactment is impermissibly
vague in all of its applications." Lear v. State,
753 S.W.24 737, 739 (Tex. App.--Austin 1988, no
writ)citing Village of Hoffman Estates v. Flipside Hoffinan Estates,
455 U.S. 489 (1981); see also
City of Mesquite v. Aladdin's Castle, 559 S.W.2d 92, 94 (Tex. App.--Dallas 1977, writ ref'd n.r.e).
"If the enactment requires a person to conform his conduct to an imprecise but comprehensible
normative standard, it is not vague. Rather, there must be a complete absence of a standard of
PageS
60 39V d Ad310 loIdiSIG 06STSU-908 91:00 TTOV EZ/60
conduct to prevail on a vagueness challenge." Lear, 753 S.W,2d at 739. For example, in
Lear, the
court held that a law prohibiting harboring a dog who makes "frequent or long continued noises
which are disturbing to persons of normal nervous sensibilities" was not unconstitutionally vague.
Id
Since neither the meaning of "qualified" nor the meaning of "neutral" is impermissibly
vague, Defendant Wilson and the Attorney General requests that Plaintiffs Motion for Summary
Judgment on that issue be denied and Defendant Wilson's and the Attorney General's Cross-Motion
for Summary Judgment be granted.
E. Section143.057 Is Not anUnconstitutional Delegationof Legislative Authority.
Section 143.057 is not an unconstitulional delegation of legislative authority because the city
and the employee may agree upon a third party hearing examiner and the terms of the statute define
whether or not a potential third party hearing examiner can be provided.
Plaintiffs allege that the statute impermissibly delegates legislative power to the American
Arbitration Association (AAA) or the Federal Mediation and Conciliation Service (FMCS), The
statute should not be construed as impermissibly delegating legislative authority to the AAA.
First, under the statute, the city and employee may agree on an arbitrator prior to resort to
the AAA list, thus rendering it unnecessary to request that a list of arbitrators be provided by the
AAA. The statute expressly provides that "the fire fighter or police officer and the department head,
or their designees, shall first attempt to agree on the selection of an impartial hearing examiner."
Second, the literal terms of the statute conclusively show that the Legislature has itself
defined those individuals whose names may be provided by the AAA - they must he
both
tor Summary Judgment and Tens Attorney General' Cross
Page 9
06S TSU-908 91 :00 T TOVEZ /60 OT 39V d Ad310 loIdiSIG
"qualified" and "neutral." The legislature has not delegated any authority to the AAA other than
to provide the names of seven eligible third party hearing examiners from their ordinary membership
lists who axe capable and competent in this area of dispute resolution and who do not have a
pecuniary stake or other interest in the outcome of the dispute. See Blair v. Razis,
926 S.W.2d at 786, n.3. For that reason, nothing is left for the AAA to do except implement the
actions under the statute provided to it by the legislature and provide lists of individuals eligible to
preside over these employment disputes.
In addition, the strong public policy favoring arbitration indicates that statutes such as the
one at issue which provide a mechanism by which neutral third party hearing examiners may be
selected should not be declared unconstitutional merely because the legislature does not itself
provide the list of eligible arbitrators. See, e.g. Lacy v. City of Lubbock, 559 S.W.2d 348, 352 (Tex.
1977) ("In modern times a policy encouraging arbitration is preferable. In addition to alleviating
some measure of the burden on the courts, arbitration is a valuable tool ."); Wylie 1.S.D. V. TUC
Foundations, Inc., 770 S.W.2d 19, 21 (Tex. App--Dallas 1989, writ dism'd); Ilatbrd Lloyd's Ins.
Co. v. Teachworth, 898 F.2d 1058, 1061 (5th Cir. 1990) ("The Federal Arbitration Act is a
congressional declaration of a national policy in favor of arbitration.").
A statutory delegation of power is only unconstitutional because it is a delegation of
legislative power that is so broad and vague that persons of common intelligence must necessarily
guess at its meaning and differ as to its application. Texas Antiquities Committee v. Dallas County
Community College Dist, 554 S.W.2d 924, 927 (Tex. 1977). In Texas Antiquities, the court held
that the legislative delegation of authority to the Texas Antiquities Commission was so broad
and
Page 10
IT 39V d
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91:00 TTOZ/EZ/60
vague that persons of common intelligence must guess as to its meaning and differ as to its
application. Id. Dallas County Community College District applies to the Texas Antiquities
Committee for a permit in order to demolish three buildings. Id The Texas Antiquities Committee
denied this request. Id The Committee contended that it had the authority to deny applications for
"all buildings and locations of historical interest. Id. The College contended that the authority was
an unconstitutional delegation of legislative authority because the statute was vague. Id. In
response, the Committee did not deny that the statute was unconstitutionally vague; rather, the
Committee took the position that "the law which strikes down statutes because they are vague,
overbroad, and uncertain should be overruled." Id.
In denying the Committee's request to strike the statutory construction law, the court noted
that no other law had been called to its attention "in which the powers of a state board are more
vaguely expressed or less predictable than those permitted by the phrase in question." Id. Of
particular concern to the court were the words "buildings," "historical," and "interest." Id The
court stated:
The word "buildings" comprehends all structures; "historical" includes all of the
past; "interests" ranges broadly from public to private concerns and embraces fads
and ephemeral fascinations. All un-restorable structures ordinarily hold some
nostalgic tug upon someone and may all qualify as "buildings . . of
historical . . . interest"
Id.
Texas Antiquities is inapposite. The Coutt held that the statute at issue in Texas Antiquities
was an unlawful delegation of legislative authority because they held that the words of the statute
were too broad and vague. That is not the case with 143.057. In this case, the Blair Court has
declared that the words in question are constitutional and not vague. Therefore, the delegation
made
Page
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by the Texas Legislature in this case is lawful and appropriate.
Section 143.057 is not an unconstitutional delegation of legislative authority. Therefore, the
Attorney General requests that the summary judgment granted.
INCORPORATION OF DEFENDANT WILSON'S RESPONSE AND
MOTION FOR SUMMARY JUDGMENT
The Attorney General hereby incorporates Defendant Wilson's Response to Plaintiffs
Motion for Summaty Judgment and Defendant Wilson's Motion for Surmnary Judgment. Ile
Attorney General and the Defendant Wilson have agreed to address separate points of Plaintiffs'
Motion for Summary Judgment. The Attorney General incorporates the responses to Plaintiff'?
Motion for Summary Judgment that are not rebutted in this motion but are rebutted in Defendant
Wilson's Response and Motion for Summary Judgment.
iv.
CONCLUSION
Plaintiffs have failed to show that 143.057 is not in effect in the City of Lubbock. The
recodification of the statute does not require the citizens of Lubbock to re-adopt the Civil Service
Statute. In addition, Plaintiffs have failed to show that 143.057 is unconstitutional. The words
"qualified" and "neutral" are not vague and 143.057 is not an unconstitutional delegation a
legislative authority.
ACCORDINGLY, The Attorney General respectf-ully requests that the Court deny Plaintiffs'
Motion for Summary Judgment and grant the Attorney General's Cross Motion for Summary
Judgment and Defendant Wilson's Motion for Summary Judgment.
tor Summary Judgment and Texas Attorney General' Cross
Motionfor Summary Judgment and Brief inSupport Page 12 ,
OESTSU-908 91:00 TTOVEZ/60
CT 39Vd
Ad310 ijiatsia
DAN MORALES
JORGE V EGA
LAQUITA A. HAMILTON
Deputy Attorney General for Litigation
TONI HUNTER
Chief, eral Litigation Division
rr/
!
S WART EHEAD
Texas Bar No. 00789725
P.O. Box 12548, Capitol Station
(512) 463-2120
(512) 320-0667 FAX
REAL PARTY IN INTEREST
Motionfor Summary Judgment and Brief inSupport Page 13
Ad310 loIdiSIG
06STSU-908 91:00 110V EZ/60
V T 39V d
I hereby certify that a true and correct copy of the foregoing instrument has been sent
via
certified mail, returnreceipt requested onJanuary 30, 1997
William J. Wade
Cecil kuhne
CRENSHAW, DUPREE & MILAM,
Post Office Box 1499
Lubbock, Texas 79408-1499
Attorneys for Plaintiffs
Terry DaffronPuthoff
Richard W. Carter
CLEAT
2001 Beach Street, #510
Fort Worth, Texas 76103
Attorneys for Defendant Wilson
Texas Attorney General's Response to rinintifis' Motion
ST 39V d
Ad310 loIdiSIG 06STSU-908 91:00 11OVEZ/60
q r
STEWART WICII-TE4AD
OF
LUBBOCK COUNTY, TEXAS
NO. 96-554,584
MARY ANDREWS, in her official
capacity as Civil Service
Director of the City of
Lubbock, Texas, and as
Managing Director of
Human Resources for the
City of Lubbock, Texas;
KEN WALKER, in his official
capacity as Chief of Police
of the City of Lubbock,
Texas; and THE CITY OF
LUBBOCK, TEXAS
V .
ERIC M. WILSON
IN THE 99T" DISTRICT COURT
PLAINTIFFS RESPPNSE AND OPPOSITION TO DEFENDANT ERIC WILSON'S
MOTION FOR SUMMARY JUDGMENT AND THE TEXAS ATTORNEY GENERAL'S
CROSS-MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME
MARY ANDREWS, in her official capacity as Civil Ser vice Dir ector
of the City of Lubbock, Texas, and as Managing Dir ector of Human Resour ces for the
City of Lubbock, Texas; KEN WALKER, in his official capacity as Chief of Police of
the City of Lubbock, Texas; and THE CITY OF LUBBOCK, TEXAS,
Plaintiffs, and file
their Response and Opposition to the Motion for Summary Judgment filed by Defendant
ERIC WILSON
and the Cross-Motion for Summary Judgment filed by
DAN MORALES,
ATTORNEY GENERAL,
and would respectfully show the Court the following:
PLEMNTWFW RESPONSE AND OPPOSITION TO DEFENDANT ERIC WILSON'S MOTION FOR SUMMARY JUDGMENT
AND THE TEXAS ATFORNEY GENERAL'S CROSS-MOTION FOR SUNMARY
PscomEn
pAGE 1
Ad310 loIdisIG
91 39Vd
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91:00 1rOV6V0-
I.
Section 143.057, TEXAS LOCAL GOVERNMENT
CODE
Is Not in For ce and Effect in the Citv Of Lubbock
As set forth in Plaintiffs' Motion for Summary Judgment, Plaintiffs submit that the
Civil Service law, which is in force and effect in the City of Lubbock and which governs the
City of Lubbock is the Fire Fighters and Police Officers Civil Service ordinance, Ordinance
No. 862, as amended, which inris originally passed and approved by the City Commission
of the City of Lubbock on February 26, 1948.
This ordnance was adopted after an election held on December 2, 1947, in which
the majority of the qualified voters of the City of Lubbock adopted Chapter 325 of the Acts
of the 50th Legislature of the State of Texas, Regular Session.
Neither Ar ticle 1269m, which was in force and effect at that time, nor the Fire
Fighters and Police Officers Civil Service Ordinance, Ordinance No. 862, contained any
provision for appeal of a suspension or disciplinary action to a third party hearing examiner.
In the Texas Attorney General's Cross-Motion for Summary Judgment, the Texas
Attorney General makes essentially two arguments in support of his contention that the
hearing examiner provision of
143.057, TEX. LOCAL. Gov. CODE is in effect in the City of
Lubbock (p. 6-7).
First, the Attorney General relies on the fact that a provision for a hearing examiner
was added to the old
Ar t. 1269m, V.A.C.S.
by an amendment effective September 1, 1983,
adding 16c(c),
Ar t 1269m
in its entirety was repealed and replaced by the current
Ch. 143, TEL
LOCAL GOV. Cope
effective September
1, 1987, four years later.
PLAINTIFFS RESPONSE AND OPPOSITION TO DEFENDANT ERIC WILSON'S MOTION FOR SUNPAARY JUDGMENT
AND THE TEXAS ATTORNEY GENERAL'S CROSS-MOT1ON FOR SW/WRY JUDGMENT
PAGE 2
Ad310 loIdiSIG
L T 39Vd
069 -ESL L - 908 9 T :00 T N ig /67 /0---
The fact that a hear ing examiner pr ovision was added to the old Ar t. 1269m four
year s pr ior to its r epeal in no way affects the position of Plaintiffs that the City of Lubbock
is gover ned by Or dinance No. 862, as amended, which was passed and appr oved by the
City Commission on Febr uar y 26, 1948, some 35 year s befor e the hear ing examiner
pr ovision was added effective September 1, 1983.
As stated in Plaintiffs' Br ief in Suppor t of its Motion for Summar y Judgment, the
r evised statute (both 16c, Ar t. 1269m and 143.057) wer e not "substantially the same"
as the pr ior statute and
will not be constr ued as a continuation of the pr ior law, but as a
new enactment. Carbide Intern., Ltd. v. State,
695 S.W.2d 653, 656 (2) (fn. 3) (Thx. App.-
-Austin 1985, no wr it); In re Fernandez, 89 B.R. 601, 602 (WI/ Tex. 1988).
Fur ther mor e, Ar t. 1269m is not even mater ial insofar as the City of Lubbock is
concer ned after Or dinance No. 862 was adopted on Febr uar y 26, 1948.
Subseq uent to that date, the City of Lubbock Fir e Fighter s and Police Officer s Civil
Ser vice has been gover ned by the Or dinance (i.e., Or dinance No. 862) and not by the
statute (Ar t. 1269m, V.A.C.S.).
Ch. 143, TEX. LOCAL GOV. CODE (including 143.057, which is a par t ther eof) has
never been adopted by the citizens of the city of Lubbock in an election as r eq uir ed by
143.002 and 143.004, and, ther efor e, the pr ovisions of Ch. 143 and 143.067, TEX.
LOCAL
GOV. Cow ar e not in effect in the City of Lubbock.
Secondly, the Attor ney Gener al contends in essence that the City is estopped to
contend that it has not adopted Ch. 143, TEX. LocAL GOV. CODE because the suspension
MAINTIFFS' RESPONSE AND OPPOSITION TO DEPENDANT ERIC WILSON'S MOTION FOR SUMMARY JUDGMENT
AND THE TEXAS A1TORNEY GENERALS CROSS-MOTION FOR SUMMARY JUDGMENT
PAGE 4
81 39Vd
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order with respect to Eric Wilson signed by Chief Walker makes reference to
* 143.051,
TEX. LOCAL Gay. CODE.
Sush reference is erroneous, as stated above, because the City of LubboCk is in fact
governed by Fire Fighters and Police Officers Civil Service Ordinance, Ordinande No. 862
and not Ch. 143, TEX. LoCAL Gov. CODE.
The City of Lubbock cannot be estopped to assert that such Ordinance is in force
and is controlling simply by virtue of the erroneous reference in the Suspension Order to
Ch. 143, TEX. LOCAL Gov. CODE. It is well settled that a municipality is not subject to the
doctrine of estoppel while exercising governmental (or even proprietary) functions.
Bowman v. Lumberton Indep. School Dist., 801 S.W.2d 883 (3) (Tex. 1990); City of
Hutchins v. Prasifka, 450 S.W.2d 829 (5) (Tex. 1970); Alamo Carriage v. City of San
Antonio, 768 S.W.2d 937 (2) (Tex. App.San Antonio 1989, no writ); Molder v. City of
Seabrook, 538 S.W.2d 870 (4) (Tex. Civ. App.Houston [14th Dist.] 1976, no writ);
Bartlett v. City of Corpus Christi,
359 S.W.2d 122 (5) (Tex. Civ. App.El Paso 1962, no
wr it).
Furthermore, as noted above, it is specifically mandated in
143.002 and 143,004,
TEL LOCAL Gov. CODE
that the provisions of Ch. 143
are not in force and effect until they
have been adopted by the voters of the City pursuant to an election as prescribed in such
sections.
There has been no election in the City of Lubbock since 1947 and the provision of
Ch. 143, TEL Wen_ Gov. Cope have not been adopted by
the citizens of the city of
Lubbock.
NE1===t1i...===7,2*MMINFR=IntitItlaMillWataCIIIM.iint
PLAINTWFS' RESPONSE AND OPPOSITION TO DEFENDANT ERIC WILSONS MOTION FOR SUNIVIARY JUDGMENT
AND THE - TEXAS
ATTORNEY GENERAL'S CROSS-MOTION FOR SUMMARY JUDGMENT
PAGE
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61 39V d
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The Contentionof Defendant Eric Wilsonand the Texas Attorney General That
Plaintiffs Lack Standingto Assert the UnconstitutionaHty of 143.057. TEX. LOCAL
Gov. CoDE. is
Without Merit
The second ground of Plaintiffs' Motion for Summary Judgment is that
143.057,
TEL LOCAL. GOv. CODE
is invalid and unconstitutional for the four reasons stated in
Plaintiffs' Motion for Summary Judgment and also restated below.
Both Defendant Eric Wilson and Defendant Texas Attorney General assert (as they
did in the Richard Dwayne Proctor, Hugh Glen Osborne, and John V eates cases) that the
Plaintiffs lack standing to challenge the constitutionality of this statute based on vagueness
or alleged denial of due process or due course of law.
Plaintiffs submit that under the statutory provisions and cases discussed below, both
Plaintiff officials in their capacity as officials of the City of Lubbock and the City of Lubbock
itself have standing to assert the invalidity and unconstitutionality of the statute in question,
143.057,
TEx. LOcAL Gov. CODE under the Texas Declaratory Judgment statutes,
37.001, TEx. Qv. PRAC. & REM. CODE.
Section37.004(a) provides:
"(a) A person interested under a deed, will, written
contract, or other writings constituting a contract or whose
rights, status,
or other legal relations are affeded by a staktg,
municipal ordinance, contract, or franchise
may have deter-
mined any Question of construction or validitv arising under the
instrument, statute,
ordinance, contract, or franchise
snd obtain
PLAPOIFFS' RESPONSE AM)
opposmoN TO
DEFENDANT ERIc WILSON'S MOTION FOR SWMARY JUDGMENT
AND THE TEXAS ATTORNEY GENERALS CROSS-MOTION FOR SUINAARY JUDGMENT
PAGE
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a declaration of rights. statutes. or other legal relations there-
under." (Emphasis added.)
Section37.001, TEXAS CIVIL PRACTICE AND REMEDIES CODE,
states that "In this
chapter, 'person' means an individual, partnership, joint-stock company, unincorporated
association or society, or municipal or other corporation_of any character." (Emphasis
added.)
It is well settled that the Declaratory Judgment Act is to be liberally construed.
In Guiltlams v, Koonsman, 279 S.W.2d 579 (rex. 1955), the Texas Supreme Court
said:
"The Act itself provides that it shall be liberally construed. This
court has followed that admonition. In Cobb v. Harrington, 144
Tex. 360, 190 S.W.2d 709, 713, 172 A.L.R. 837, we quoted
with approval from Anderson's Actions for Declaratory Judg-
ments in which it is said that the action for declaratory judg-
ment "is an instrumentality to be wielded in the interest of
preventative justice and its scope should be kept wide and
liberal and should not be hedged about by technicalitiesm."
279 S.W.2d at 583.
Also, in
Cobb v. Hanington,
190 S.W.2d 709, 714 (Tex. 1945), the supreme court
pointed out that the existence of another adequate remedy does not bar the maintenance
of an action for declaratory judgment.
wa rJa = k k ra = = = = = = k mfl=weera=1***
mfia a ns
RESPONSE AND OPPOSITION TO DEFENDANT EMC WILSONS MOTION FOR SUMMARY JUDGMENT
AND THE TEXAS ATTORNEY GENERAL'S CROSS-MOTION FOR SUMMARY JUDGMENT
-CZ 39Vd
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06STSU-908 91:00 TIOVEZ/60
Both Plaintiff MARY ANDREWS and Plaintiff,
KEN WALKER,
in their capacities S.
officials of the CITY OF LUBBOCK, and the CITY OF LUBBOCK itself, have standing to
assert the invalidity of the statute which,
inter alia,
contravenes the constitutional rights and
authority of the CITY OF LUBBOCK under
Article XI, Section5, TExAs CONSTITUTION.
An analogous fact situation was involved in
Board of Water Engineers v. City of
San Antonio, 273 S.W.2d 913 (1) (Tex. Civ. App.Austin 1954),
eV, 283 S.W.2d 722
(1,2) (Tex. 1955).
In tha t case, the City of San Antonio brought an action against the State Board of
Water Engineem for a declaratory judgment that the statute prohibiting withdrawal of water
by the city from a specific watershed was unconstitutional and that the city was entitled tO
priority of right to withdraw water from the watershed.
The district court found that the city had a justiciable interest and was entitled tO
maintain the suit challenging the constitutionality of the statute and further held that th
statute challenged by the city was in fact void.
Such judgment was affirmed by both the court of appeals and the supreme court
See
also State v. City of Orange, 300 S.W.2d 705, 713 (Tex. Civ. App.Beaumont
1967, writ refd n.r.e.), in which the court held that the City of Orange was authorized tO
maintain a suit against the City of West Orange in the nature of a suit for declaratory
judgment to determine the validity of its own annexation procedure of the disputed territory.
In
Nuoces County v. People's Baptist Church,
860 S.W.2d 627 (Tex. APP.
Corpus Christi 1993, writ granted), the court said:
PLANITWFW
RESPONSE AND OPPOSMON TO DEFENDANT ERIC WILSON'S MOTION FOR S
sOMMARY JUDGMENT
AND THE TEXAS ATTORNEY GENERALS CROSS-MOTION FOR SMEARY JUDGMENT
ZZ 39Vd
Ad310 loIdiSIG
06S ISU-908 91:00

"Indeed, a political subdivision or county has been permitted to
challenge the constitutionality of a legislative act. See
Weatherford, 775 S.W.2d at 887; see also Milam County v.
Bateman, 54 Tex. 153, 165-66 (1880).
11] In Weatherford, the court of appeals did not allow
a contracts or due process challenge, but both the court of
appeals and the Texas Supreme Court addmssed and sus-
tained the school district's claim that, as applied, a provision of
the Tax Code conflicted with portions of the Texas Constitution.
In Milam County, the county won its constitutional challenge to
a legislative act because the act interfered with the county's
title interest in real property. Because the statute offended the
county's right to property, which was created by the state
constitution and was not merely part of the county's political
power, the county had standing to challenge. These cases
indicate that when the state, county, or a Political subdivision

has a constitutionally created right, these entities will have
standino to challenge a statute on gmunds that it conflicts with
such right."
860 S.W.2d at 630. (Emphasis added.)
As discussed in the Brief in support of the
CITY's
Motion for Summary Judgment,
the statute in question does violate constitutional rights of the
CITY, specifically the
A
nar eastr ammz.....n.,,==tmonn.,,Evawitisso
PLAINTIFFS' RESPONSE AND OPPOSITION TO DEFENDANT ERIC WILSON'S MCMON FOR SUMMARY JUDGMENT
AND ME TEXAS ATTORNEY GENERAL'S CROSS-MOTION FOR SUNMARY JUDGMENT
PAGE
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Ad310 loIdiSIG
discretionary powers of self government of the
CITY OF LUBBOCK,
a home rule city,
granted to the CITY under Article XI, Section5, Toms CONSTITUTION.
In Corsicana Cotton Mills v. Sheppard,
71 S.W.2d 247 (4) (Tex. Comm'n App.
1934, opinion adopted), the court held that in a mandamus action against the comptroller
and treasurer to compel issuance and payment of a state warrant for a sum appropriate by
the Legislature on a claim of the relator, the respondent comptroller and treasurer, although
ministerial officers, could refuse to issue and pay the warrants on the ground that the
appropriation was unconstitutional.
The court said:
"Relator advances the further proposition that respon-
dents are mere ministerial officers and have no right to contest
the validity of this statute. This proposition is untenable.
These officers are charged with the duty of obeying the valid
laws of this state. The Constitution is the fundamental law and
must obtain over any legislative act in contravention thereof.
When a legislative act requires an officer to perform a ministe-
rial duty, he should perform it if the act is not unconstitutional.
If the legislative act is in contravention of the Constitution, the
officer should obey the Constitution. Holman v. Pabst (Tex.
Chi,
App.) 27 S. W. (2d) 340 (writ
ref.); State v. Candland, 36
Utah, 406, 104 P. 285, 290, 24 L. R. A. (N.S.) 1260, 140 Am.
St. Rep. 834."
nms=latm,==.sw==tr emzr =zanna. I anu,RS
PLAINWFS' RESPONSE AND OPPOSITION TO DEFENDANT ERIC WILSON'S MOTION FOR SUMMARY JUDGMENT
AND THE TIVAS ATTORNEY GENERAL'S CROSS-MOTION FOR SUMMARY JUDGMENT
39V d
Ad310 loIdiSIG
06STSCC-908
91:00 TT0t7Tt70
Corsicana Cotton Mills, 71 S.W.2d at p. 251.
See also Samar& v. Fowler,
229 S.W.2d 75 (6) (Tex. Civ. App.Amarillo 1950, no
writ), holding that in a mandamus proceeding a court will not command an act to be done
which is contrary to the law.
In Aransas Cty. App. R. Bd. v. Tex. Gulf Shrimp,
707 S.W.2d 186 (9) (Tex. App,
Corpus Christi 1986, writ refd n.r.e.), the court held that in a declaratory judgment suit with
respect to the validity of provisions of the tax statute, tax assessors are proper parties and
have standing to challenge the constitutionality of the statutes.
The court said:
'We hold that Tax Assessors are the proper parties to challenge the
constitutionality of Sections 21.03 and 21.031. To hold otherwise, in reality,
would leave no other likely party to challenge unconstitutional exemption
statutes."
Aransas Cry. App. It Bd., 707 S.W.2d at p. 196.
In Texas Municipal Retirement System v. Roark, 401 S.W.2d 913 (3) (rex, Civ.
App.--Austin 1966, writ refd n.r.e.), the court held that the municipal retirement system
which administered payment of pensions to former municipal employees had standing to
attack the statute changing the qualifications for pension as being invalid with respect to
the two cities which were not required to pay pension to retired employees under the
old
statute, but which would
be
required to do so under the new statute since the system would
not be protected in paying out monies which the statute directed it to pay if the statute was
unconstitutional.
217110w,==.1111 .11tINIM.....M.S1=1*
PLANTIFFS RESPONSE AND
opposmoN
TO DEFENDANT ERIC WILSON'S MOTION FOR SUMMARY JUDGMENT

AND THE TOGAS ATTORNEY GENERAL'S GROSSMOTION FOR SUMMARY JUDGMENT
PAGE to
572. 39V d
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06STSU-908
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Delta ay. Levee Imp. Dist. v. Leonard,
559 S.W.2d 387 (Tex. Civ. App.
Texarkana 1977, writ refd n.r.e.), was an action by assignees of judgment liens against the
Levee Improvement District, its supervisors, and the Delta County Commissioners Court
to compel such parties to raise funds to extinguish the judgment debt.
This was an appeal by such parties, as Appellants, from the judgment of the trial
court granting a mandamus against them.
The appellants asserted as a defense the unconstitutionality of the statute which was
the basis of the judgment liens.
The court of appeals here modified such mandamus. The court specifically rejected
the plaintiffs contention that the defendant supervisors and county commissioners court
lacked standing to assert the unconstitutionality of the statute.
The court said:
"The appellees contend that the appellants, acting in
their official capacities, lack the standing to raise these issues.
A ministerial officer cannot question the constitutionality of the
law fixing his ministerial duties. 16 Am.Jur.2d, Constitutional
Law, Sec. 128, pp. 325, 326.
16-101
The courts cannot however, compel a
public
official to act in compliance with an unconstitutional law.
ald the
public official may auestion the leoality of such a law.
Holman v. Pabst,
27 S.W.2d 340 (Tex.Civ.App. Galveston
1930, writ refd); 37 Tex.Jur.2d, Mandamus, Sec. 10, p. 598.
NAJNTIFFS RESPONSE AND OPPOSMON TO DEFENDANT ERIC WILSONS MOTION FOR SISMIARY JUDGMENT
AND THE TEXAS ATTORNEY GENERAL'S GROSSMOTION FOR SUMMARY JUDGMENT
PAGE 11
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06STSU-908 91:00 110V6t/60---
See also Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 654
(1951), for a discussion of this problem."
Delta Cty. Levee Imp. Dist., 559 S.W.2d at 391. (Emphasis added.)
In Durish v. Texas State Bd. of Ins.,
817 S,W.2d 764 (3-5) (Tex. App.Texarkana
1991, no writ), the court held that state officials had standing to challenge the constitutional-
ity of the statute entitling an insurer to bring legal action to prevent fraudulent insurance
practices and off-set expenses incurred in such actions against obligations or debts owed
to the state (TExAs INSURANCE CODE, Article 21.79(D)).
In this connection, the court said:
"Lloyd's also contends that the
Sta te a nd the Insurance
Boar.ct do not have standing to contend that the statute is
unconstitutional. We reject this Proposition. While the State is
not a 'person' within the meaning of the Bill of Rights' due
course of law, equal rights, and privileges and immunities
guarantees, and therefore cannot assert that its own enact-
ments deny it such rights, McGregor v. C/awson, 506 S.W.2d
922 (Tex.Civ.App.Waco 1974, no writ); Hants County v.
Dow/earn,
489 S.W.2d 140 (Tex.Civ.App.Houston [14th Dist.]
1972, writ ref'd n.r.e.), that rule does not apply to other consti-
tutional provisions.
State officials have not only the right but
the duty, to challenge actions to be
ta k en pursua nt toa
statute
that Is unconstitutional.
Corsicana Cotton Mills V. Sheppard,
PLAINTIFFS' RESPONSE AND OPPOSITION TO DEFENDANT ERIC
wiLsows inonot4
FOR SUMMARY JUDGMENT
AND THE TEXAS ATTORNEY GENERAL'S CROSS-MOTION FOR SUMMARY JUDGMENT
PAGE 12
LZ39V d
Ad310 loIdiSIG
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123 Tex. 352, 71 S.W.2d 247 (1 934); Delta County Levee
Improvement Dist. v. Leonand,
559 S.W.2d 387 (Tex.Civ.App.
Texarkana 1977, writ ref'd n.r.e.). The constitution is the
highest law of the state, and all public officials are sworn to
uphold and defend it. The state represents the people, and
when the state seeks to enforce the constitutional prohibition
against retroactive laws, it is protecting the people from
oppressive and unjust laws. We respectfully disagree with the
court's holding in Parker County v. Weetherfond Independent
School Dist., 775 S.W.2d 881 (Tex.App.Fort Worth 1989, no
writ), that the state has no standing to assert that a statute
impaired the obligation of a contract in violation of TEX. CONST.
arl. I, 16:1
Durish, 817 S.W.2d at 767. (Emphasis added.)
In Parker County v. Weatherford School D., 775 S.W.2d 881 (Tex. App.Fort
Worth 1989), rev'd, 794 S.W.2d 33 (Tex. 1990), the City of Weatherford and Weatherfonl
ISD brought an action to invalidate the election which resulted in consolidation of ad
valorem tax assessment and collection functions for the appraisal district and the county
tax assessor-collector on the ground that the statute was unconstitutional.
The trial court rendered judgment in favor of the city and the school district. The
court of appeals reversed on the ground,
inter aka,
that the city and school district, as an
ner m,==ama-==tants,..tmas
PLAJNTIPFS' RESPONSE AND OPPOSITION TO DEFENDANT ERIC WILSON'S MOTION FOR IZIUMMARY JUDGMENT
AND THE TEXAS KrronNer
GENERAL'S CROSS-MOTION FOR SUMMARY JUDGMENT
PAGE ,
06STSU-908
91:00 110VEZ/-9-6--
87 2. 39Vd
Ad310 loIdiSIG
agency or subdivision of the state, had no standing to assert the invalidity and unconstitu-
tionality of state statutes.
The supreme court reversed and affirmed the judgment of the district court, holding
the statute unconstitutional and thereby, of necessity, impliedly upholding the standing of
the city and school district to challenge the constitutionality of the statute.
In Nueces Co. v. People's Baptist Church, 860 S.W.2d 627 (1) (rex. App,Corpus
Christi 1993, writ granted), the court held that when the state, county or political subdivision

has a constitutionally created right, these entities have standing to challenge the statute on
the grounds that it conflicts with such right.
In the case at bar, the Plaintiff City Officials and the CITY OF LUBBOCK have

challenged the statute in question, Section143.057, TExAs Local_ GOVERNMENT Corm, on
the ground that it unconstitutionally infringes upon the rights and duties of self government
of a home rule municipal corporation under Article XI, Section6, TEXAS CONSTITUTION,
with respect to its police powers with respect to the discipline and discharge of its police
officers, which rights are guaranteed under such constitutional provisions, of which rights
and duties a home rule city cannot be deprived by constitutional provision conflicting with
such constitutional rights and duty.
B4 t0 .
143.057. T E X , LOCAL Gov. CODE is Invalid and Unconetitutionat
Finally, Defendant Eric Wilson and Defendant Texas Attorney General are not
entitled to summary judgment because
143.067, TEX. LocAL Gov. CODE,
pertaining to the
asserted right of a police officer to choose an independent hearing examiner from a list of
====STIOM=7=011
PLANTIFFS RESPONSE AND opposmow TO DEFENDANT ERic WILSONS MOTION FOR SUMPAARy JUDGmENT
AND THE TEXAS ATTORNEY GENERALS GROSSMOTiON FOR SUMMARY JUDGMENT
PAGE la
06S ISU-908 91:00 TOVEZ /60
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Ad310 loIdiSIG
seven arbitrators submitted by the American Arbitration Association because
143.057 is
unconstitutional for basically four interrelated reasons, as stated in Plaintiffs' Motion for
Summary Judgment, as follows:
(a) The provision in 143.057(d) pertaining to a list of seven
"qualified neutral arbitrators" from the American Arbitration Association or
Federal Mediation and Conciliation Service is unconstitutionally vague,
indefinite and meaningless because it provides no definition or guideline to
determine the meaning of the terms "qualified" or "neutral" which are not
terms of common meaning and in fact are meaningless without further
specific requirements for qualification (and neutrality).
(b) Sec. 143.057(d) is also invalid and unconstitutional for the
reason that it confers legislative authority on a private entity in contravention
of Ar ticle III, 1, TEx. CONST., by failing to provide any guidelines to the
American Arbitration Association or Federal Mediation and Conciliation
Service in determining whether arbitrators are "qualified" and "neutral" under
the statute and leaves such determination to such private entities on an ad
hoc basis.
(c) Sec. 143.057, TEx. Loom_ Gov. COOE, is invalid and unconstitu-
tional because it inherently tends to create a bias on the part of the hearing
examiners in favor of the police officer or firefighter appealing from the
disciplinary action of the
CITY
since the hearing examiner knows that it is the
employee who determines whether the appeal is to the Civil Service
PLMNTIFFS' RESPONSE AND OPPOSITION TO DEFENDANT ERIC
wiLsows winos FOR SUMMARY JUDGMENT
AND THE TEXAS ATTORNEY GENERAL'S CROSS-MOTION FOR SUIVMARY JUDGMENT
PAGE HI
OBSTSU-908 91:00 110VEZ/60
OE 39Vd
Ad310 loIdiSIG
Commission or to a hearing examiner selected from a list furnished by the
American Arbitration Association or Federal Mediation and Conciliation
Service, and therefore are improperly influenced to render a decision
favorable to the appealing police officer or firefighter in order to be selected
by an appealing police officer or firefighter in future cases, as opposed to the
Civil Service Commission. This deprives the municipality of due process and
equal protection of law.
(d) The CITY OF LUBBOCK is a home rule city under the
provisions of Ar ticle II, 5, Tex. CON5-1% , possessing full powers of self-
government not inconsistent with the Constitution and general laws of the
State of Texas. A municipality and specifically a home rule municipality
cannot surrender or be compelled to surrender its governmental functions
except by a specific constitutional provision.
The authorities supporting Plaintiffs' position with respect to these grounds of
unconstitutionality are contained in the Brief in Support of Plaintiffs' Motion for Summary
Judgment, and such Brief and the authorities cited therein is incorporated herein by
reference.
Conclusionand Prayer
For the reasons stated above, Plaintiffs submit that both the Motion for Summary
Judgment of Defendant Eric Wilson and the Cross-Motion for Summary Judgment of
Defendant Texas Attorney General are without merit and should be denied.
PLMNTIFFS' RESPONSE AND OPPOSITION TO DEFENDANT ERIC WILSON'S NOTION FOR SUMMARY JUDGMENT
AND THE TEYAS ATTORNEY GENERAL'S CROSS-MOTION FOR SUMMARY JUDGMENT
PAGE IS
OESTSU-908 91:00 11OVEZ/60
TE 39Vd
Ad310 loIdiSIG
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the Motion for
Summary Judgment of Defendant Eric Wilson and the Cross-Motion for Summary
Judgment of Defendant Texas Attorney General be denied.
Plaintiffs further pray that the Court sustain the Motion for Summary Judgment of
Plaintiffs and render a declaratory judgment that Plaintiffs are under no obligation to
proceed with the selection of a hearing examiner pursuant to 143.057, TEX. LOCAL GOV.
CODE; that Plaintiffs recover their reasonable attorney's fees for the
prosecution of this
declaratory judgment action pursuant to 37.009, TEX. Civ. PRAC. & REm. CODE; that
Plaintiffs recover their costs herein; and that Plaintiffs recover such other and further relief
to which they may be justly entitled.
LI; Liff-c-s

William J. Wade
Cecil Kuhne
ATTORNEYS FOR PLAINTIFFS
CRENSHAW, DUPREE & MILAM,
Post Office Box 1499
Lubbock, Texas 79408-1499
Telephone No. (806) 762-5281
Telecopier No. (806) 762-3510
PLAINTFFS RESPONSE
AND OPPOSITION TO DEFENDANT ERIC WILSON'S MOTION
'FOR SZMARY JUDGMENT
AND ThE TEXAS
ATTORNEY GENERAL'S CROSS-MOTION FOR SUMMARY JurtamENT
PAGE IV
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Tab 3
NO. 91-2149-B
CORPUS CHRISTI PEOPLE'S
BAPTIST CHURCH, INC.

IN THE DISTRICT COURT OF
VS. NUECES COUNTY, T E X A S
NUECES COUNTY APPRAISAL
DISTRICT, ET AL. 117TH JUDICIAL DISTRICT
PLEA IN INTERVENTION OF THE STATE OF TEXAS
TO THE HONORABLE JUDGE:
I .
The State of Texas intervenes and states that the office of
the Attorney General of Texas is an agency of the State of Texas.
The State cannot be sued without its consent, yet Nueces County has
made the Attorney General a Third Party Defendant. The State
pleads sovereign immunity from the suit naming the Attorney General
as a third party defendant and prays judgment that such suit
against the Attorney General of Texas be dismissed.
II.
Further, the State of Texas pleads that the Property Tax Code
is constitutional, and enters a general denial.
WHEREFORE, Intervenor prays that Dan Morales, Attorney General
of Texas, be dismissed as a party to this suit, that the Court make
no declaration concerning the constitutionality of the Tax Code, or
in the alternative that the Court declare the Tax Code to be
constitutional, and for such other relief as
0311:1
DANMORALES
WILL PRYOR
MARY F. KELLER
Deputy Attorney General
HARRIET D. BURKE
General
Chie)7' Division

Texas Bar Card No. 11426000
P. O. Box 12548
Austin, TX 78711-2548
Ph. (512) 463-2002
FAX (512) 478-4013
ATTORNEYS FOR INTERVENOR
THE STATE OF TEXAS
CERTIFICATE OF SERVICE
I certify compliance with Tex. R. Civ. P. 21a by delivering
copies of this Plea in Intervention of the State of Texas to Clyde
J. Jackson, Jr., 1225 3rd Street, Suite 1, Corpus Christi, TX
78401, Attorney for Plaintiff, and to Russell R. Graham and Kent M.
Rider, CALAME, LINEBARGR & GRAHAM, P. O. Box 17428, Austin, TX
78760, attorneys for Defendants, on this day of May, 1991.
General
2

Tab 4
MASTER DOCKET NO. 2004-70000
Filed
08 October 27 A 10:43
Theresa Chang
District Clerk
Harris District
INRE:

IN THE DISTRICT COURT OF
TEXAS STATE SILICA PRODUCTS
LIABILITY LITIGATION
This Document Relates to All Cases
HAJUtlSCOUNTY,TEXAS
295
TH
JUDICIAL DISTRICT
(Judge Tracy Christopher)
STATE OF TEXAS'S PETITION IN INTERVENTION
The State of Texas by and through its attorney, the Honorable Greg Abbott, the Attorney
General of Texas, intervenes as a party defendant in this matter.
The Attorney General has an absolute right to be heard in litigation when the constitutionality
of a state statute is challenged. TEx. CIV. PRAc. & REM. CODE 36.007(b). Here, Plaintiffs have
attacked the constitutionality of section '90.004(b)(2) of the Texas Civil Practices and Remedies
Code. Because Plaintiffs have challenged the constitutionality of section 90.004(b )(2), the State
of Texas has ajusticiable interest in this case.
The State of Texas intervenes in this action pursuant to TEx. R. CIV. P. 60 and TEx. CIV.
PRAC. & REM. CODE 37 .006(b) in order to defend section 90.004(b )(2) as constitutional and oppose
Plaintiffs' application for permanent injunction.
GREG ABBOTT
KENT C. SULLIVAN
JAMESC.HO
Solicitor General
DAVID S. MORALES
Deputy Attorney General for Litigation
ROBERT O'KEEFE
Chief, General Litigation Division
THOMAS M. LIPOVSKI
Tex
stant Attorney General
Post Office Box 12548, Capitol Station
(512) 463-2120 (Telephone)
(512) 320-0667 (Facsimile)
I certify a true and correct copy of the foregoing document has been sent via electronic
service as required in Order # 10 entered in Cause Number 2004-70000 in In re Texas State Silica
Products Liability Litigation on October 24th, 2008.

Tab 5
Case 2:08-cv-00081-TJW -CE Document 36 Filed 06/12/08 Page 1 of 5 PagelD #: 995
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
EMMA WATSON, individually and as
Next Friend ofD.J.B.W.; et al.
Plaintiffs,
v.

HARRISON COUNTY HOSPITAL
ASSOCIATION, d/b/a MARSHALL REGIONAL
MEDICAL CENTER; et al.
Defendants.
No. 2:08-cv-00081 (TJW-CE)
UNOPPOSED MOTION TO INTERVENE BY STATE OF TEXAS
In support of its Motion to Intervene in this litigation, the State of Texas, by and through
Hon. Greg Abbott, the Attorney General of Texas, respectfully submits the following:
Federal law provides that, in any suit in which the constitutionality of a statute of a State
affecting the public interest is drawn into question, the court "shall permit the State to intervene for
presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the
question of constitutionality." 28 U.S.C. 2403(b ).1 This suit involves a "federal constitutional
challenge ... to the Texas statutory cap on non-economic damages in health care liability actions,
enacted as part of House Bill 4, Medical Malpractice and Tort Reform Act of2003, codified at Texas
Civil Practice and Remedies Code Ann. 74.301 et seq." Complaint for Declaratory Judgment
Under 28 U.S.C. 2201, p. 2 (the "Complaint") (emphasis original). The statutory provisions
placing caps on non-economic damages on health care liability claims certainly affect the public
1. This Motion to Intervene is filed 62 days after Plaintiffs' Notice of Constitutional Questions was filed. Rule
5.1 (c) of the Federal Rules of Civil Procedure provides that, "the attorney general may intervene within 60 days after
the notice of the constitutional question is filed or after the court certifies the challenge, whichever is earlier." "The court
may extend the 60-day period on its own or on motion." FED. R. CIV. P. 5.1 advisory committee's note.
interest as contemplated by 28 U.S.C. 2403(b).
The State acknowledges that a Motion to Dismiss Based on Federal Rule of Civil Procedure
12(b)(1), (3), and (6) (the "Motion to Dismiss") has been filed in this proceeding, which includes
an argument that "[i]fthe Court has jurisdiction and chooses to exercise it, then the case should be
dismissed because Plaintiffs' claims are simply without merit." The State furtherrecognizes that the
Court must consider all other grounds for the Motion to Dismiss prior to addressing any argument
regarding the constitutionality of the challenged statutory provisions. See Gulf Oil Co. v. Bernard,
452 V.S. 89, 99 (1981) ("[P]rior to reaching any constitutional questions, federal courts must
consider nonconstitutional grounds for decision. "); Spector Motor Co. v. McLaughlin, 323 V.S. 101,
105 (1944) ("If there is one doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless
such adjudication is unavoidable."). Thus, the State requests that it be granted leave to intervene and
that, should the Court determine that it has jurisdiction and authority to consider the constitutionality
of the challenged provisions of House Bill 4, the State be permitted to file a motion for summary
judgment defending the constitutionality of the challenged statutory provisions prior to any decision
being made by the Court on the merits of those challenges.
WHEREFORE, PREMISES CONSIDERED, the State of Texas requests that it be granted
leave to intervene in this case and that, if the Court decides to consider the merits of the
constitutional challenges set out in the Complaint, the State be permitted to file a motion for
summary judgment defending the constitutionality of the challenged statutory provisions before the
Court makes a decision regarding the merits of those challenges.
2
",
Case 2:08-cv-00081-T JW -CE Document 36 Filed 06/12/08 Page 3 of 5 PagelD #: 997
GREG ABBOTT
KENT C. SULLIVAN
DAVID S. MORALES
Deputy Attorney General for Civil Litigation
JAMESC.HO
Solicitor General
THOMAS M. LIPOVSKI
/s/ Madeleine Connor
MADELEINE CONNOR
Texas BarNo. 24031897
Office of the Attorney General
P.O. Box 12548 Austin, Texas 78711-2548
[Te1.] 512/936-1827
[Fax] 512/474-2697
COUNSEL FOR INTERVENER
3
CERTIFICATE OF CONFERENCE
I certify that on June 12, 2008, I contacted counsel for Plaintiffs, Robert Peck, and counsel
for Defendants, Andrew F. Macrae and Craig Smyser, regarding this motion. Neither Plaintiffs nor
Defendants oppose this motion.
lsi Madeleine Connor
MADELEINE CONNOR
4
CERTIFICATE OF SERVICE
I certify that on June 12, 2008 the foregoing document was forwarded by Electronic Filing
to all known counsel of record:
Michael S. Hull
Andrew F. MacRae
HULL HENRICKS & MAcRAE LLP
221 West 6th St., Suite 2000
Thomas R. Phillips
Kennon L. Peterson
BAKER BOTTS, L.L.P.
1500 San Jacinto Center
98 San Jacinto Blvd.
R. Brent Cooper
Diana L. Faust
COOPER & SCULLY, P.C.
900 Jackson St., Suite 100
Dallas, Texas 75202
Attorneys for Defendants
Andre M. Mura
Robert S. Peck
Stephen B. Pershing
Valerie M. Nannery
CENTER FOR CONSTITUTIONAL
LITIGATION, P.C.
1050 31st Street N.W.
Washington, D.C. 20007
Jack B. Baldwin
BALDWIN & BALDWIN, L.L.P.
P.O. Drawer 1349
Marshall, Texas 75671-1349
Attorneys for Plaintiffs
/s/ Madeleine Connor
MADELEINE CONNOR
5

Naylor v. Daly Respondant's Brief On The Merits - 10172011

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Naylor v. Daly Respondant's Brief On The Merits - 10172011

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06S ISU-908 91:00

AND THE TEXAS ATTORNEY GENERALS GROSSMOTiON FOR SUMMARY JUDGMENT

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