FILED

14-0404
12/1/2014 11:15:59 AM
tex-3326572
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

No. 14-0404

IN THE SUPREME COURT OF TEXAS

HEATHER DELGADO, in her capacity a/n/f TREVOR ARAGUZ
and TYLER ARAGUZ, and SIMONA LONGORIA,
Petitioners,
v.
NIKKI ARAGUZ,
Respondent.

REPLY IN SUPPORT OF PETITION FOR REVIEW

W. Mark Lanier
State Bar No.: 11934600
Kevin P. Parker
State Bar No.: 15494020
Natalie V. Armour
State Bar No.: 24070785
Lanier Law Firm
6810 FM 1960 West
Houston, Texas 77069
Telephone: 713/659-5200
Facsimile: 713/659-2204
kevin.parker@lanierlawfirm.com

Chad P. Ellis
State Bar No. 24003278
Ellis & Irwin, L.L.P.
302 Jackson Street
Richmond, Texas 77406
Telephone: 832/595/1242
Facsimile: 832/595/1906
chad@ei-law.com
Frank E. Mann
State Bar No.: 12924250
Law Offices of Frank E. Mann
5151 Katy Freeway, Suite 140
Houston, Texas 770071
Telephone: 713/524-6868
Facsimile: 713/524-1931
frankmann@mannfamilylaw.com

December 1, 2014

IDENTITY OF PARTIES AND COUNSEL

COUNSEL FOR PETITIONER HEATHER DELGADO
W. Mark Lanier
State Bar No.: 11934600
Kevin P. Parker
State Bar No.: 15494020
Natalie V. Armour
State Bar No.: 24070785
Lanier Law Firm
6810 FM 1960 West
Houston, Texas 77069
Telephone:713/659-5200
Facsimile: 713/659-2204
kevin.parker@lanierlawfirm.com

Frank E. Mann
State Bar No.: 12924250
Law Offices of Frank E. Mann
5151 Katy Freeway, Suite 140
Houston, Texas 77007
Telephone: 713/524-6868
Facsimile: 713/524-1931
frankmann@mannfamilylaw.com

COUNSEL FOR PETITIONER SIMONA LONGORIA

Chad P. Ellis
State Bar No. 24003278
Ellis & Irwin, L.L.P.
302 Jackson Street
Richmond, Texas 77406
Telephone: 832/595/1242
Facsimile: 832/595/1906
chad@ei-law.com

COUNSEL FOR RESPONDENT NIKKI ARAGUZ

Kent Rutter
State Bar No. 00797364
Haynes and Boone, LLP
1221 McKinney Street, Suite 2100
Houston, Texas 77010
Telephone: 713/547-2000
Fax: 713/547-2600
kent.rutter@haynesboone.com

Kenneth E. Broughton
State Bar No. 03087250
Reed Smith, LLP
811 Main Street, Suite 1700
Houston, Texas 77002
Telephone: 713/469-3800
Fax: 713/469-3899
kbroughton@reedsmith.com
ii

Phyllis Randolph Frye

State Bar No. 07496600
Darrell Steidley
State Bar No. 24013559
Frye, Oaks & Benevidez, PLLC
3315 Mercer
Houston, Texas 77027
Phone: 713/227-1717
Fax: 713/522-2610
prfrye@aol.com
dmsteidley@yahoo.com

Mitchell Katine
State Bar No. 11106600
John Nechman
State Bar No. 24010261
Katine & Nechman, L.L.P.
1111 North Loop West, Suite 180
Houston, Texas 77008
Telephone: 713/808-1000
Fax: 713/808-1107
mkatine@lawkn.com
jnechman@lawkn.com

Alene Ross Levy

State Bar No. 12260550
Alene Levy Law Firm, P.L.L.C.
1701 Hermann Drive, Apt. 3403
Houston, Texas 77004
Telephone: 832/831-3113
alene@alenelevylaw.com

COUNSEL FOR INTERVENOR NATIONAL UNION FIRE INSURANCE COMPANY

THE TRIAL COURT
Phillip Bechter
State Bar No. 00787053
Schwartz, Junell, Greenberg & Oathout, L.L.P.
909 Fannin, Suite 2700
Houston, Texas 77010
Telephone: 713/752-0017
Fax: 713/752-0327
pbechter@sjgolaw.com

iii

IN

TABLE OF CONTENTS

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

INDEX OF AUTHORITIES...................................................................................... v
ARGUMENT ............................................................................................................. 1

I.

THE COURT OF APPEALS DECISION CONFLICTS WITH LITTLETON .......... 1

II.

THE 2009 AMENDMENTS TO 2.005 DID NOT LEGISLATIVELY

OVERRULE LITTLETON ............................................................................ 4

A.

Section 2.005 has Never Purported to Define Marriage

or Create Rights Regarding Marriage ...................................... 5

B.

The Term Identity Does Not Mean Sexual Identity .......... 5

III.

WHETHER NIKKI PRESENTED UNCONTROVERTED EVIDENCE THAT

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

IV.

THE COURT OF APPEALS INCORRECTLY HELD THAT THE 2009

AMENDMENTS COULD BE RETROACTIVELY APPLIED TO VALIDATE
NIKKIS VOID 2008 MARRIAGE .............................................................. 9

V.

POTENTIAL HOLDINGS BY FEDERAL COURTS DO NOT MOOT THE

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

PRAYER .................................................................................................................. 11
CERTIFICATE OF SERVICE ................................................................................ 13
CERTIFICATE OF COMPLIANCE ....................................................................... 15

iv

INDEX OF AUTHORITIES
CASES

PAGE(S)

City of Waco v. Kelley,

309 S.W.3d 536 (Tex. 2010) ...................................................................................... 4
Dutcher v. Owens,
647 S.W.2d 948 (Tex. 1983) ...................................................................................... 7
In re Estate of Araguz,
No. 13-11-00490-CV, 2014 WL 576085
(Tex. App.Corpus Christi Feb. 13, 2014) .............................................................. 9
Helena Chemical Co. v. Wilkins,
47 S.W.3d 486 (Tex. 2001) ........................................................................................ 4
Littleton v. Prange,
9 S.W.3d 223 (Tex. App.San Antonio 1999, pet. denied) .....................1, 2, 3, 4, 8
In re Marriage of J.B. and H.B.,
326 S.W.3d 654 (Tex.App. Dallas 2010, pet. granted) .................................10, 11
Penrod Drilling Corp. v. Williams,
868 S.W.2d 294 (Tex. 1993) .................................................................................... 10
Texas Employment Commission v. Holberg,
440 S.W.2d 38 (Tex. 1969) ........................................................................................ 7

CONSTITUTIONAL PROVISIONS

PAGE(S)

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

STATUTES & RULES

PAGE(S)

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

TEX. FAM. CODE 2.004 ............................................................................................. 6
v

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

TEX. FAM. CODE 6.204 ............................................................................................. 4
TEX. GOVT CODE 311.011................................................................................... 4, 5
TEX. GOVT CODE 311.023....................................................................................... 5

vi

ARGUMENT
I.

THE COURT OF APPEALS DECISION CONFLICTS WITH LITTLETON.

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

Littleton because the legal landscape of Texas marriage law has changed since
Littleton. According to Nikki, a transgender marriage that would have violated the
constitutional and statutory prohibitions against same-sex marriage in 1999 would
not violate those prohibitions today because the 2009 amendments to 2.005
created the right of transgender marriage. In support, Nikki spins a remarkable tale
regarding the evolution of Texas marriage law that occurred in the decade
following Littleton. But that tale is unsupported by the events leading up to the
amendments and the context of their enactment.
Initially, Nikki attempts to distract the Court by arguing that Littleton
cleared the path for a transsexual woman to marry another woman, which Nikki
contends would violate the same-sex marriage prohibition.1 But this argument
misunderstands Littleton. In Littleton, the court held that gender is immutably
determined at birth.2

Although Christie [Littleton] is medically termed a

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

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

1
Response to Petition for Review (Response) at 4.
2

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

Id. at 225, 231 (emphasis added).

1

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

males marriage to a woman would fall within Texas definition of marriage.
Next, Nikki alleges that the 1999 Littleton decision was the reason that the
Texas County and District Clerks Association recommended a wide-ranging
clean up bill to the legislature, that the purpose of the Associations
recommendation was to secure clarity on the legality of transgender marriage, and
that the legislature enacted the 2009 amendments with the intent to overrule
Littleton and legalize transgender marriage.4 Notably, Nikki fails to support these
allegations with any evidence or legislative history.
As Nikki points out, Littleton noted the complete absence of legislative
guidelines governing marriages involving transsexuals and when, if ever,
transsexuals would be recognized as having successfully changed their sex.5
In our system of government it is for the legislature, should it choose
to do so, to determine what guidelines should govern the recognition
of marriages involving transsexuals. . . . When or whether the
legislature will choose to address this issue is not within the
judiciary's control.
It would be intellectually possible for this court to write a protocol for
when transsexuals would be recognized as having successfully
changed their sex. Littleton has suggested we do so . . . . But this
court has no authority to fashion a new law on transsexuals, or
anything else. We cannot make law when no law exists: we can only

4
Response at 4.
5

Id.
2

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

legislature.6
The legislature in enacting the 2009 amendments did not answer Littletons
call for guidelines. The amendments do not specify when transsexuals should be
recognized has having changed their sex.

The amendments do not impose a

surgical test or any other test for establishing when the sex change occurs. The
fact that the amendments do not provide the guidance requested in Littleton
signifies that the legislature did not have Littleton in mind when it amended
2.005.
In fact, the court of appeals decision represents a sea-change in Texas
marriage law. Until that decision, the law in Texas very clearly and consistently
provided that gender was immutably determined at birth and prohibited
transgender marriage. The amendments, when considered in light of the law in
effect at the time and in the historical context of Texas marriage law, undoubtedly
did not expand the definition of marriage in Texas to include transgender marriage.
In 1997, the legislature provided that marriage occurs between a man and a
woman and it prohibited the issuance of a license for the marriage of persons of
the same sex.7 In 2003, the legislature made clear that it intended to confine
marriage to opposite-sex couples and to exclude any other relationship which did

6
Littleton, 9 S.W.3d at 230.
7

TEX. FAM. CODE 2.001.

3

not meet the statutory definition of marriage.8 Then in 2005, the people of Texas
by a large majority voted to amend the constitution to provide that Marriage in
this state shall consist only of the union of one man and one woman and prohibit
the recognition of any legal status identical or similar to marriage.9
Under Littleton, because Nikki was born male she is immutably male. Since
Nikkis marriage to Thomas, a male, constitutes same-sex marriage it is statutorily
and constitutionally prohibited. Because the court of appeals decision conflicts
with Littleton, the Court should grant review in this case.
II.

THE 2009 AMENDMENTS TO 2.005 DID NOT LEGISLATIVELY OVERRULE

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

construction,10 she effectively concedes the need by discussing the meaning of the
term identity and legislatures intent when it enacted the amendments.11 In
construing a statute, a courts primary role is to ascertain and give effect to the
legislatures intent, which should be gleaned primarily from the plain meaning of
the words in the statute.12 Words and phrases shall be read in context and

8
TEX. FAM. CODE 6.204.
9

TEX. CONST., art. I, 32.

10

Response at 5.

11

Id.

12

TEX. GOVT CODE 311.011; City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010);
Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493-94 (Tex. 2001).
4

construed according to the rules of grammar and common usage.13 Courts should
consider the object sought to be obtained by the statute, the circumstances under
which it was enacted, the statutes legislative history, and the consequences of a
particular construction of the statute.14
A.

Section 2.005 has Never Purported to Define Marriage or Create

Rights Regarding Marriage.

The 2009 amendments to 2.005 did not create the right of transgender
marriage. At the outset, 2.005 has never purported to define marriage or create
rights regarding marriage. Rather, it merely lists documents that an applicant for
marriage license may use to prove identity. Nikki completely ignores this point
and claims the 2009 amendments to 2.005 wholly overhauled Texas marriage law
by redefining marriage and creating the right of transgender marriage. When the
rules of statutory construction are applied to the amendments, it is clear the
legislature did not intend to redefine the terms man, woman, marriage, and same
sex as they are used in the marriage statutes and the constitution and legalize
transgender marriage.
B.

The Term Identity Does Not Mean Sexual Identity.

Nikkis position that the 2009 amendments to 2.005 created a right of

transgender marriage hinges on her argument that the term identity means

13
311.011.
14

TEX. GOVT CODE 311.023.

5

sexual identity.15 But the plain meaning of the term and its context within the
statute reveals that Nikkis position is fatally flawed. Many of the documents
listed in 2.005 that an applicant may use to prove identity do not designate
whether the applicant is male or female. Nikki completely ignores this reality. To
support her argument, Nikki provides the Court with various definitions of the term
identity, but none of those definitions state that identity means sexual
identity nor do they discuss sex or gender.16
Nikki also argues that since Texas law prohibits same-sex marriage, the term
identity must mean sexual identity.17 However, that argument misunderstands
the purpose of 2.005. The legislature did not intend 2.005 to govern the issuance
of marriage licenses or to enforce the prohibition against same-sex marriage.
Rather, 2.004 governs that task.18
Lastly, Nikki argues that two bills introduced to the legislature in March of
2011 that sought to remove the words or sex change from 2.005 establish that
the legislature intended to legalize transgender marriage when it enacted the 2009
amendments.19

Ultimately, both bills failed to pass.

15
Response at 3-8.
16

Id. at 7.

17

Id. at 7-8.

18

See TEX. FAM. CODE 2.004.

19

Response at 8-9.
6

But as this Court has

acknowledged, a court cannot draw inferences of the legislatures intent from the
failure of bills to pass.20 Bills introduced in the legislature to amend statutes
often fail to become enacted for reasons wholly unrelated to the Legislatures view
of what the original statute does or does not mean.21
Nikkis position that the 2009 amendments legalized transgender marriage is
premised upon two assumptions that fail to pass muster. It assumes that every
transgendered person who seeks to enter a marriage desires to marry a person of
the same sex as he or she was born. This is not the case, as evidenced by the
example that Nikki included in the clerks record of a man who had sex
reassignment surgery and then sought to marry a woman.22 It also assumes that the
legislature intended to change the law but intentionally failed to define when a sex
change occurs or how to obtain an order relating to a sex change in a Texas state
court.
Nikki asks this Court to disregard the historical context and the
circumstances under which the 2009 amendments were enacted and the purpose of
2.005. Until the court of appeals rendered its opinion, the law in Texas very
clearly and consistently provided that gender was immutably determined at birth
and prohibited transgender marriage as constituting same-sex marriage. Because

20
Dutcher v. Owens, 647 S.W.2d 948, 950 (Tex. 1983).
21

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

22

6CR 1591-92.
7

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

law that is wholly unsupported by Texas statutory and constitutional provisions
governing marriage, the Court should grant review and reverse the court of
appeals judgment.
III.

WHETHER NIKKI PRESENTED UNCONTROVERTED EVIDENCE

HAD A SEX CHANGE IS IMMATERIAL.

THAT

SHE

Nikki attempts to distract this Court by arguing that review should be denied
because she presented uncontroverted expert proof that she had a sex change.23
Whether Nikki had a sex change is immaterial to the determination whether the
2009 amendments legislatively overruled Littleton and whether Nikkis 2008
marriage to Thomas was valid. If the amendments did not legislatively overrule
Littleton, then gender is immutably determined at birth. Because Nikki was born
male, she is immutably male and cannot marry another male.
On the other hand, if the amendments did legislatively overrule Littleton,
then the amendments implicitly created the right for a transgendered person to
marry a person of the same birth sex under some undefined circumstances. Even if
that were the case, Nikki has not conclusively established that she was female
when she attempted to marry Thomas in 2008. As Petitioners pointed out during
the summary judgment proceedings, Nikki was born without female sexual or
reproductive organs and with male organs, which she had until the time of her

23
Response at 9.
8

post-wedding sex reassignment surgery in 2008.24

The court of appeals

acknowledged this evidence and held that it was enough to raise a fact issue about
whether Nikki was male during the marriage . . . .25 If the petition is not granted,
the case will be remanded so that the parties can engage in protracted litigation
over Nikkis gender without any legislative guidance as to the standards for
making that determination.
IV.

THE COURT OF APPEALS INCORRECTLY HELD THAT THE 2009

AMENDMENTS COULD BE RETROACTIVELY APPLIED TO VALIDATE
NIKKIS VOID 2008 MARRIAGE.
Nikki argues that the court of appeals did not retroactively apply the 2009

amendments.26 However, by holding that the 2009 amendments created a right of

transgender marriage and remanding the case for a factual determination of Nikkis
gender, the court of appeals necessarily held that the 2009 amendments could be
retroactively applied to validate Nikkis void 2008 marriage. For the reasons
stated in the Petition for Review, the courts retroactive application was improper.
V.

POTENTIAL HOLDINGS
BEFORE THIS COURT.

BY

FEDERAL COURTS DO NOT MOOT

THE ISSUE

Nikki argues that since the issue of same-sex marriage is currently before the
Fifth Circuit, and since the United States Supreme Court may at some point

24
1CR 162-63; 3CR 606; 2CR 456, 541; 4CR 924, 928.
25

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

Christi Feb. 13, 2014).

26

Response at 12.
9

consider the issue, the legality of transgender marriage is likely to become moot
before this Court could address it.27 Nikkis argument is wrong for two reasons.
First, it misunderstands the law of precedent. While Texas courts may certainly
draw upon the precedents of the Fifth Circuit, or any other federal or state court, in
determining the appropriate federal rule of decision, they are obligated to follow
only higher Texas courts and the United States Supreme Court.28
Second, Nikkis argument urges this Court to speculate what changes in law
may occur and render a decision based on that speculation. It is not a foregone
conclusion that the U.S. Supreme Court will grant certiorari on the same-sex
marriage issue or that it will decide it in her favor. If the issue goes before the
Supreme Court, is decided as Nikki anticipates, and that decision moots the central
issue in this case, then this Court can consider the mootness questions that Nikki
raises. Conversely, if the issue does not go before the Supreme Court, or if it is not
decided as Nikki anticipates, then this Court will have lost the opportunity to
clarify the legality of transgender marriage under Texas law.
Further, the central issue in this case goes hand-in-hand with that in In re
Marriage of J.B., which is presently pending before this Court and will likely be
decided before the U.S. Supreme Court grants certiorari and renders an opinion on

27
Id. at 12-14.
28

Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993).
10

the same-sex marriage issue.29 The Court should not deny review in this case
based upon speculated changes in the law that may occur in the future, but should
instead determine mootness questions based on existing and binding precedent.
This Court can revisit the mootness question after deciding J.B.
PRAYER
For the reasons stated in the Petition for Review and in this Reply,
Petitioners pray that this Court grant review of this case, set if for oral argument,
reverse the judgment, and remand the case to the court of appeals for it to consider
Nikkis remaining points of error.
Respectfully submitted,

By:

/s/
Kevin P. Parker
W. Mark Lanier
SBN 11934600
Kevin P. Parker
SBN: 15494020
Natalie Van Houten Armour
SBN: 24070785
Lanier Law Firm P.C.
P.O. Box 691448
6810 FM 1960 Rd. West
Houston, Texas 77069
Telephone: (713) 659-5200
Fax: (713) 659-2204
kevin.parker@lanierlawfirm.com

29
In re Marriage of J.B., 326 S.W.3d 654 (Tex. App.Dallas 2010, pet. granted).
11

Frank E. Mann
State Bar No.: 12924250
Law Offices of Frank E. Mann
5151 Katy Freeway, Suite 140
Houston, Texas 77007
Telephone: 713/524-6868
Facsimile: 713/524-1931
frankmann@mannfamilylaw.com
ATTORNEYS FOR APPELLEE,
HEATHER DELGADO IN HER
CAPACITY A/N/F OF TREVOR
ARAGUZ AND TYLER ARAGUZ

By:

/s/ Chad P. Ellis, by permission

Chad P. Ellis
State Bar No. 24003278
Ellis & Irwin, L.L.P.
302 Jackson Street
Richmond, Texas 77406
Telephone: 832/595/1242
Facsimile: 832/595/1906
chad@ei-law.com

ATTORNEY FOR APPELLEE,

SIMONA LONGORIA

12

CERTIFICATE OF SERVICE

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

served via certified mail, return receipt requested on this 1st day of December,
2014, on the following:

Counsel for Respondent, Nikki Araguz:

Kent Rutter
Haynes and Boone, LLP
1221 McKinney Street, Suite 2100
Houston, Texas 77010
Kenneth E. Broughton
Reed Smith, LLP
811 Main Street, Suite 1700
Houston, Texas 77002
Alene Ross Levy
Alene Levy Law Firm, P.L.L.C.
1701 Hermann Drive, Apt. 3403
Houston, Texas 77004
Phyllis Randolph Frye
Darrell Steidley
Frye, Oaks & Benevidez, PLLC
3315 Mercer
Houston, Texas 77027
Mitchell Katine
John Nechman
Katine & Nechman, L.L.P.
1111 North Loop West, Suite 180
Houston, Texas 77008

13

Counsel for National Union Fire Insurance Company:

Phillip Bechter
Schwartz, Junell, Greenberg & Oathout, L.L.P.
909 Fannin, Suite 2700
Houston, Texas 77010

/s/
Kevin P. Parker
Kevin P. Parker
kevin.parker@lanierlawfirm.com

14

CERTIFICATE OF COMPLIANCE WITH RULE 9.4

This brief complies with the type-volume limitation of TEX. R. APP. P
9.4(i)(2)(B) because this brief contains 2,397 words, excluding the parts of the
brief exempted by TEX. R. APP. P 9.4(i)(1).

/s/ Kevin P. Parker

Kevin P. Parker
kevin.parker@lanierlawfirm.com
Attorney for Petitioner, Heather Delgado

Dated: December 1, 2014

15