Delgado V Araguz: Petitioner's Brief On The Merits Filed On Behalf of Heather Delgado, Et Al.

FILED
14-0404
1/20/2015 10:42:27 AM
tex-3822361
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.
PETITIONERS BRIEF ON THE MERITS
W. Mark Lanier
State Bar No.: 11934600
Kevin P. Parker
Natalie V. Armour
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 0
Richmond, Texas 77406
Telephone: 832/595/1242
Facsimile: 832/595/1906
Chad@ei-law.com
ATTORNEY FOR SIMONA
LONGORIA
Frank E. Mann
Law Offices of Frank E. Mann
6750 West Loop South, Ste. 120
Bellaire, Texas 77401
Telephone: 713/524-6868
Facsimile: 713/524-1931
Frankmann@mannfamilylaw.com
ATTORNEYS FOR HEATHER DELGADO
January 20, 2015

IDENTITY OF PARTIES AND COUNSEL

COUNSEL FOR PETITIONER HEATHER DELGADO
W. Mark Lanier
Kevin P. Parker
Natalie V. Armour
Lanier Law Firm
6810 FM 1960 West
Telephone:713/659-5200
Facsimile: 713/659-2204
Frank E. Mann
6750 West Loop South, Ste. 120
Bellaire, Texas 77401
Telephone: 713/524-6868
Facsimile: 713/524-1931
Frankmann@mannfamilylaw.com
COUNSEL FOR PETITIONER SIMONA LONGORIA

Chad P. Ellis
302 Jackson Street
Telephone: 832/595/1242
Facsimile: 832/595/1906
Chad@ei-law.com
ii

COUNSEL FOR RESPONDENT NIKKI ARAGUZ

Kent Rutter
Haynes and Boone, LLP
1221 McKinney Street, Suite 2100
Telephone: 713/547-2000
Fax: 713/547-2600
Kent.rutter@haynesboone.com
Kenneth E. Broughton
Reed Smith, LLP
811 Main Street, Suite 1700
Telephone: 713/469-3800
Fax: 713/469-3899
KBroughton@ReedSmith.com
Alene Ross Levy
Alene Levy Law Firm, P.L.L.C.
6262 Woods Bridge Way
Telephone: 713/880-2989
Alene@alenelevylaw.com
Phyllis Randolph Frye
Darrell Steidley
Frye, Oaks & Benevidez, PLLC
3315 Mercer
Phone: 713/227-1717
Fax: 713/522-2610
PRFrye@aol.com
Dmsteidley@yahoo.com
iii

Mitchell Katine
John Nechman
Katine & Nechman, L.L.P.
1111 North Loop West, Suite 180
Telephone: 713/808-1000
Fax: 713/808-1107
Mkatine@lawkn.com
Jnechman@lawkn.com
COUNSEL FOR INTERVENOR NATIONAL UNION FIRE INSURANCE COMPANY
THE TRIAL COURT
Phillip Bechter
Schwartz, Junell, Greenberg & Oathout, L.L.P.
909 Fannin, Suite 2700
Telephone: 713/752-0017
Fax: 713/752-0327
Pbechter@sjgolaw.com
iv

IN
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
INDEX OF AUTHORITIES.................................................................................. viii
STATEMENT OF THE CASE .................................................................................xi
Nature of the Case ..........................................................................................xi
Proceedings in the Trial Court ...................................................................... xii
Judgment of the Trial Court.......................................................................... xii
Proceedings in the Court of Appeals ........................................................... xiii
Opinion of the Panel and Judgment of the Court of Appeals ...................... xiii
STATEMENT OF JURISDICTION........................................................................ xv
ISSUES PRESENTED FOR REVIEW ............................................................... xviii
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT ........................................................................ 2
ARGUMENT ............................................................................................................. 5
I.
UNDER LITTLETON, NIKKI IS IMMUTABLY MALE .................................... 5
II.
BECAUSE NIKKIS MARRIAGE CONSTITUTES A SAME-SEX

MARRIAGE, IT IS NOT PRESUMED TO BE VALID .................................... 7
III.
THE COURT OF APPEALS DECISION CONFLICTS WITH

LITTLETON .............................................................................................. 8
IV.
THE 2009 AMENDMENTS TO 2.005 DID NOT OVERRULE

LITTLETON ............................................................................................ 11
A.
Courts Are Required To Adhere To Rules Of

Statutory And Constitutional Construction When
Construing Statutes ................................................................... 11
B.
The Courts Construction Disregards Statutory

Historical Context And The Circumstances Under
Which The 2009 Amendments Were Enacted.......................... 12
C.
Legislative History Following Littleton Reaffirms

Littletons Holding .................................................................... 14
V.
THE 2009 AMENDMENTS TO 2.005 DID NOT CREATE A

RIGHT FOR A TRANSGENDERED PERSON TO MARRY A
PERSON OF THE SAME SEX AS HE OR SHE WAS BORN ....................... 17
A.
The Term Identity Does Not Mean Sexual Identity .......... 18
B.
Section 2.005 Is An Administrative Statute That

Does Not Define Marriage, Create Rights Regarding
Marriage, Or Enforce the Prohibition Against
Same-Sex Marriage ................................................................... 20
C.
Section 2.005 Does Not Require The Clerk To

Accept A Court Order Relating To A Sex Change
As Proof Of Identity Or As Establishing The
Applicants Sex ......................................................................... 23
D.
The Legislature Did Not Alter One Word Of The

Statutory Or Constitutional Provisions That
Provide For Marriage Or Define Relevant Marriage
Terminology .............................................................................. 24
E.
The Court Of Appeals Construction Of 2.005

Assumes The Legislature Intended To Change The
Constitution By Changing The Meaning Of The
Terms Man, Woman, And Marriage .............................. 25
F.
The 2009 Amendments Provide No Guidance

Regarding Transgendered Status .............................................. 27
vi

G.
VI.
The Courts Holding Replaces The ConstitutionallyMandated, Clear Definition Of Marriage With A
Definition That Depends Wholly On Unspecified Facts .......... 28
THE 2009 AMENDMENTS CANNOT BE RETROACTIVELY APPLIED

TO VALIDATE NIKKIS VOID 2008 MARRIAGE ..................................... 30
VII. ISSUES RAISED BY NIKKI IN HER RESPONSE TO THE PETITION

FOR REVIEW ......................................................................................... 31
A.
The Court Should Deny Consideration Of Nikkis

Issues Because She Did Not File A Separate Petition
For Review For Those Issues.................................................... 32
B.
Whether Nikki Presented Uncontroverted Evidence

That She Had A Sex Change Is Immaterial .......................... 35
C.
Potential Holdings By Federal Courts Do Not Moot

The Issue Before This Court ..................................................... 37
CONCLUSION AND PRAYER ............................................................................. 38

CERTIFICATE OF SERVICE ................................................................................ 40
CERTIFICATE OF COMPLIANCE WITH RULE 9.4 .......................................... 41
vii

INDEX OF AUTHORITIES
CASES
PAGE(S)
Acker v. Texas Water Commn,

790 S.W.2d 299 (Tex. 1990) .................................................................................... 12
Archuleta v. International Ins. Co.,
667 S.W.2d 120 (Tex. 1984) .............................................................................. 32, 33
Bell v. State,
184 S.W.2d 635 (Tex. Crim. App. 1944) ................................................................ 19
Brady v. State,
906 S.W.2d 268 (Tex. App.Amarillo 1995, pet. refd.) ...................................... 31
Caballero v. Central Power and Light Co.,
858 S.W.2d 359 (Tex. 1993) ..............................................................................32, 33
City of Waco v. Kelley,
309 S.W.3d 536 (Tex. 2010) .................................................................................... 11
Dutcher v. Owens,
647 S.W.2d 948 (Tex. 1983) .................................................................................... 19
In re Estate of Araguz,
443 S.W.3d 233 (Tex. App.Corpus Christi 2014, pet. filed) ........................passim
Gee v. Liberty Mutual Fire Ins. Co.,
765 S.W.2d 394 (Tex. 1989) .................................................................................... 33
Helena Chemical Co. v. Wilkins,
47 S.W.3d 486 (Tex. 2001) ...................................................................................... 12
Johnson v. State,
258 S.W.2d 829 (Tex. Crim. App. 1953) ................................................................ 19
Jones v. State,
17 S.W.2d 1053 (Tex. Crim App. 1928) ................................................................ 19
viii

Littleton v. Prange,
9 S.W.3d 223 (Tex. App.San Antonio 1999, pet. denied) ............................passim
Padilla v. LaFrance,
907 S.W.2d 454 (Tex. 1995) .................................................................................... 33
Parker v. State,
53 S.W.2d 473 (Tex. Crim. App. 1932) .................................................................. 19
Penrod Drilling Corp. v. Williams,
868 S.W.2d 294 (Tex. 1993) .................................................................................... 37
Pruitt v. Republic Bankers Life Ins. Co.,
491 S.W.2d 109 (Tex. 1973) .................................................................................... 33
Rogers v. State,
204 S.W. 222 (Tex. Crim. App. 1918) .................................................................... 19
Stringer v. Cendant Mortg. Corp.,
23 S.W.3d 353 (Tex. 2000) ...................................................................................... 26
Texas Employment Commission v. Holberg,
440 S.W.2d 38 (Tex. 1969) ...................................................................................... 19
CONSTITUTIONAL PROVISIONS
PAGE(S)
TEX. CONST. art. I, 32 ............................................................. xv, xviii, 3, 13, 21, 29
STATUTES & RULES
PAGE(S)
Act of May 27, 2009, 81st Leg., R.S., Ch. 978, 12(a), 2009 Tex. Gen. Laws
2571, 2574 ................................................................................................................ 30
TEX. FAM. CODE 1.101(West 2014) ......................................................................... 8
TEX. FAM. CODE 2.001(West 2014) ....................................... xviii, 2, 12, 13, 20, 29
TEX. FAM. CODE 2.002(West 2014) ...........................................................21, 22, 30
ix

TEX. FAM. CODE 2.004 (West 2014) ................................................................21, 22

TEX. FAM. CODE 2.005(West 2008) .................................................................3, 8, 9
TEX. FAM. CODE 2.005(West 2009) ................................................................passim
TEX. FAM. CODE 6.204(West 2014) ................................................................passim
TEX. GOVT CODE 22.001(West 2014)............................................................xv, xvi
TEX. GOVT CODE 311.011(West 2014)................................................................. 12
TEX. GOVT CODE 311.021(West 2014)...............................................11, 26, 28, 29
TEX. GOVT CODE 311.023(West 2014) ..........................................................12, 29
SECONDARY SOURCES
PAGE(S)
S. Research Ctr., Bill Analysis, Tex. H.B. 3666, 81st Leg., R.S. (2009) ................ 25
STATEMENT OF THE CASE

NATURE OF THE CASE
After volunteer firefighter Thomas Trevino Araguz III died in the line of
duty, his mother, Petitioner Simona Longoria, filed this lawsuit to declare his
marriage to Respondent Nikki Araguz,1 a transgendered woman, void as a matter
of law on the grounds that it constituted same-sex marriage.2 Ms. Longoria also
filed an Application for Letters of Administration, Application for Determination
of Heirship, and Application for Temporary Restraining Orders.3 The case was
assigned to the 329th Judicial District Court of Wharton County, Texas, the
Honorable Randy M. Clapp presiding.4 Decedents ex-wife, Petitioner Heather
Delgado, intervened as next friend on behalf of their two sons, filing her own
petition to declare the marriage void.5 Nikki answered and filed a counterclaim to
declare her marriage valid.6

1
In this Brief, Petitioners will refer to Respondent Nikki Araguz as Respondent or Nikki and
will use the personal pronouns she and her. In using these terms Petitioners are not
conceding that Nikki is now, or ever was, a female. Instead, as the court did in Littleton v.
Prange, 9 S.W.3d 223, 224 (Tex. App.San Antonio 1999, pet. denied), Petitioners will use
these terms for the sake of grammatical simplicity and because that is how Nikki desires to be
designated.
2
1 CR 10.
Id.
See 7 CR 1870.
1 CR 36.
1 CR 300.
xi
PROCEEDINGS IN THE TRIAL COURT

All parties moved for summary judgment on the issue of the validity of the
marriage.7
Specifically, Petitioners filed a traditional motion for summary
judgment on the grounds that under Littleton v. Prange, 9 S.W.3d 223 (Tex.
App.San Antonio 1999, pet. denied),8 and the relevant statutory and
constitutional provisions relating to marriage in Texas, Nikki was a man when she
attempted to marry Decedent and her marriage therefore constituted same-sex
marriage.9 Nikki filed a no-evidence motion for summary judgment on the issue of
her gender.10
JUDGMENT OF THE TRIAL COURT
The trial court granted Petitioners motions for summary judgment, denied
Nikkis motion for summary judgment, declared that Decedent was not married to
Nikki on the date of his death, declared that any purported marriage between
Decedent and Nikki prior to Decedents death was void as a matter of law, and

7
1 CR 146, 259, 267.
8
Littleton held that, under Texas law, a persons sex for marriage purpose is immutably
determined at birth and that transgender marriage constitutes same-sex marriage. See Littleton, 9
S.W.3d at 224, 230-231.
9
See 1 CR 146, 267.
10
See 1 CR 259. See also In re Estate of Araguz, 443 S.W.3d 233, 249 (Tex. App.Corpus
Christi 2014, pet. filed)(Nikkis motion was in form and substance a no evidence motion for
summary judgment.).
xii

severed the remaining issues in the case relating to the administration of the estate
into a separate cause.11
PROCEEDINGS IN THE COURT OF APPEALS
Nikki appealed the judgment to the Thirteenth Court of Appeals of Corpus
Christi in Edinburg.12 Nikki was the appellant, and Ms. Longoria and Ms. Delgado
were the appellees.13
OPINION OF THE PANEL AND JUDGMENT OF THE COURT OF APPEALS
The panel that decided the case was composed of Chief Justice Valdez and
Justices Rodriguez and Longoria.14 Chief Justice Valdez authored the opinion for
the panel,15 which can be found at In re Estate of Araguz, 443 S.W.3d 233 (Tex.
App.Corpus Christi 2014, pet. filed).
The court of appeals issued its judgment and opinion on February 13, 2014,
reversing the trial courts judgment and remanding the case for further proceedings
consistent its opinion. The court determined (1) that a person who has had a sex
change is eligible to marry a person of the opposite sex following the sex change

11
7 CR 1869-70. A copy of the trial courts order granting summary judgment is included in the
Appendix to the Petition for Review (the Appendix) under Tab 1.
12
See Estate of Araguz, 443 S.W.3d at 233. A copy of the opinion of the court of appeals is
included in the Appendix under Tab 2, and a copy of the judgment of the court of appeals is
included in the Appendix under Tab 3.
13
See Estate of Araguz, 443 S.W.3d at 233.
14
See id.
15
See id.
xiii
under the 2009 amendments to 2.005 of the Texas Family Code, which added an
original or certified copy of a court order relating to the applicants name change
or sex change as an acceptable form of proof to establish the identity and age of
an applicant for marriage in Texas; (2) that the 2009 amendments to 2.005
legislatively overruled Littleton, which held that Texas law did not recognize that a
person may change his or her sex and that transgender marriage constitutes samesex marriage;16 (3) that there was a genuine issue of material fact regarding Nikkis
sex and, thus, whether the marriage was a same-sex marriage; (4) that the case
should be reversed and remanded for resolution of the fact issue; and (5) that Nikki
was not entitled to rendition of judgment in her favor.17
Nikki moved for rehearing, asking the court to render judgment that she was
female at the time of the marriage or, in the alternative, to correct certain
statements in the opinion that she believed were incorrect.18 The court denied
Nikkis motion for rehearing on April 15, 2014.19

16 Littleton, 9 S.W.3d at 231.
17
Estate of Araguz, 443 S.W.3d at 245-51.
18
A copy of the court of appeals notice that it denied Appellants motion for rehearing (Notice
Denying Motion for Rehearing) is included in the Appendix under Tab 4.
19
See Notice Denying Motion for Rehearing, Tab 4.

xiv
STATEMENT OF JURISDICTION
The Supreme Court has jurisdiction over this petition because it involves the
construction of a statute necessary to the determination of this case.20 The 2009
amendments to 2.005 list, among other things, an original or certified copy of a
court order relating to the applicants name change or sex change as a form by
which an individual applying for a marriage license may establish proof of
identity.21 The court held that the amendment establishes that a person who has
had a sex change is eligible to marry a person of the opposite sex [following the
sex change] such that the marriage is between one man and one woman, as set
forth in the Texas Constitution and, thus, is not banned as same sex marriage
under 6.204(b) of the Texas Family Code.22 But the term identity as it is used
in 2.005 does not mean sexual identity, and the amendments cannot reasonably
be construed to implicitly re-define the terms as man, woman, marriage, and
same sex as they are used in the Texas constitution and previously enacted
statutes. Further, the court retroactively applied the 2009 amendments to validate a
void 2008 marriage even though 2.005 specifically states that the amendments
apply only to marriages with licenses issued on or after September 1, 2009.

20
See TEX. GOVT CODE 22.001(a)(3)(West 2014).
21
TEX. FAM. CODE 2.005(a),(b)(8)(West 2009). A copy of 2.005 is included in the Appendix
under Tab 5.
22
Estate of Araguz, 443 S.W.3d at 245; see TEX. CONST. art. I, 32; TEX. FAM. CODE
6.204(b)(West 2014). Copies of 32 and 6.204 are included in the Appendix under Tabs 6 and
7, respectively.
xv

The Supreme Court also has jurisdiction over this appeal because the
decision of the Thirteenth Court of Appeals in this case conflicts with a decision
from the Fourth Court of Appeals in Littleton.23 Specifically, the Thirteenth Court
of Appeals held that the 2009 amendments to 2.005 of the Family Code
recognized the right of an individual to change his or her sex and, thus, created a
right for a transgender person to marry a person of the same sex as he or she was
born.24 That holding conflicts with the Fourth Court of Appeals holding that an
individuals sex is immutably determined at birth for marriage purpose and that a
marriage between a transgender person and a person of the same sex as he or she
was born constitutes same-sex marriage and is thus void.25
Finally, the Supreme Court has jurisdiction over this appeal because the
court of appeals has committed an error of law of such importance to the states
jurisprudence that it should be corrected.26
The court held that the 2009
amendments to 2.005 of the Texas Family Code legislatively overruled Littleton,

recognized the right of an individual to change his or her sex, and created a right
for a transgender person to marry a person of the same sex as he or she was born.27

23
See 22.001(a)(2). Compare Estate of Araguz, 443 S.W.3d at 243-245, 250 with Littleton, 9
S.W.3d at 231. A copy of Littleton is included in the Appendix under Tab 8.
24
25
Compare id., with Littleton, 9 S.W.3d at 231.
26
See 22.001(a)(6).
27

xvi
In so holding, the court completely overhauled Texass marriage law in a manner

that is not supported by the constitution and previously enacted marriage statutes
and without defining what makes an individual male or female.
xvii

ISSUES PRESENTED FOR REVIEW

ISSUE 1: In 1997 and 2003, the Texas legislature enacted statutes defining
marriage in Texas as occurring between a man and a woman and prohibiting,
declaring void, and proclaiming against the states public policy civil unions and
same-sex marriages.28 In 2005, the people of Texas by a large majority voted to
amend the constitution to provide that marriage consist[s] only of the union of one
man and one woman and to prohibit the recognition of any legal status identical
or similar to marriage.29 Given these pronouncements against same-sex marriage
by the people of Texas and their legislative branch in 2003 and 2005, did the
legislature in 2009 intend the amendment to 2.005(b)(8) of the Family Code to
legislatively overhaul the statutory and constitutional provisions of this states
marriage law and create a right for a transgendered person to marry a person of the
same sex as he or she was born?
ISSUE 2: If the 2009 amendment did create such a right, should that
amendment retroactively apply to validate a void marriage performed before the
amendment took effect when the amendment itself specifically states it applies
only to marriages with licenses issued on or after September 1, 2009?

28
TEX. FAM. CODE 2.001(West 2014); TEX. FAM. CODE 6.204(West 2008). A copy of 2.001
is included in the Appendix under Tab 9.
29
TEX. CONST., art I, 32.

xviii
STATEMENT OF FACTS
The opinion of the court of appeals states the nature of the case. It arises
from the death of Thomas Araguz. At the time of his death, Decedent was in a
purported marriage relationship with Nikki who is biologically a man but claims to
be a woman. Nikki was born in California in 1975 as Justin Graham Purdue with
male sex organs, including a penis, testes, and scrotum, and without any female sex
organs, such as a vagina or uterus.30 The chart below sets out the subsequent events
in chronological order and in the context of relevant legislative and constitutional
proclamations of Texas public policy.
EVENT
Littleton decided (holding that gender is
immutably determined at birth)
Section 6.204 of the Texas Family Code
goes into effect (declaring same sex
marriages and civil unions void and
against public policy)
Art. I, 32 of the Texas Constitution
adopted (defining marriage as consisting
of only one man and one woman and
prohibiting state recognition of legal
status identical or similar to marriage)
Nikki and Decedent apply for marriage
license
Nikki and Decedent participate in a
wedding ceremony
Nikki has sex reassignment surgery
Amendments to 2.005 go into effect
Decedent dies
DATE
October 27, 1999
September 1, 2003
November 8, 2005

30
Estate of Araguz, 443 S.W.3d at 236, n.2.
1

RECORD CITE
August 19, 2008
2 CR 378-80
August 23, 2008
2 CR 378
October 7, 2008
September 1, 2009
July 3, 2010
4 CR 927
6 CR 1757-63
EVENT
Proceedings Filed in Court Below
Nikki Files Petition for Change of Gender
in California
California court enters Order for Change
of Gender and Issuance of New Birth
Certificate
DATE
July 12, 2010
July 13, 2010
RECORD CITE
1 CR 10
2 CR 365-67
July 20, 2010
2 CR 369
SUMMARY OF THE ARGUMENT

Nearly two decades ago, the Texas legislature made clear its intention to
confine marriage in Texas to members of the opposite sex. In 1997, with the
enactment of 2.001 of the Family Code, the legislature very clearly provided that a
marriage license may be issued for the marriage of persons of the opposite sex and
prohibited the issuance of a marriage license for persons of the same sex.31 In 1999,
the San Antonio court of appeals in Littleton considered whether a person who is
born a man but chooses to live as a woman may marry another man. That court
held that, under Texas law, a persons sex for marriage purpose is immutably
determined at birth, that transgender marriage constitutes same-sex marriage, and
thus that the transgender marriage at issue in Littleton was invalid.32
In the years that followed Littleton, the legislature reaffirmed its intention to
confine marriage in Texas to members of the opposite sex and to prohibit same-sex
marriages.
In 2003, with the enactment of 6.204 of the Family Code, the

31
See TEX. FAM. CODE 2.001(West 2014)(A man and a woman desiring to enter into a
ceremonial marriage must obtain a marriage license from the county clerk of any county in this
state. A license may not be issued for the marriage of persons of the same sex.).
32
Littleton, 9. S.W.3d at 224, 230-31.

2
legislature expressly provided that [a] marriage between persons of the same sex
or a civil union is contrary to the public policy of this state.33 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 to prohibit the recognition of any legal status identical or similar to
marriage.34
In 2009, the legislature enacted amendments to 2.005 of the Family Code,
an administrative statute that states the types of documentation that an applicant for
marriage license may use to prove identity and age to the clerk. The 2009
amendments added specificity to 2.005, specifically listing nineteen documents
that an applicant may use to prove identity and age.35 Among those nineteen
documents, section 2.005 lists a court order relating to the applicants name
change or sex change.36
The court of appeals decision in this case completely disregards the historical
context of Texas laws relating to marriage and the circumstances under which the
2009 amendments were enacted. In determining that the 2009 amendments to
2.005 legislatively overruled Littleton and created a right for a transgendered

33
TEX. FAM. CODE 6.204(West 2014).
34
TEX. CONST., art. I, 32.
35
Compare TEX. FAM. CODE 2.005 (West 2008), with TEX. FAM. CODE 2.005(West 2009).
36
2.005(b)(8)(West 2009).
3
person to marry a person of the same sex as he or she was born, the court of appeals
incorrectly assumed that: (1) the term identity as it is used in 2.005 means
sexual identity; (2) section 2.005 was intended to define marriage, create rights
regarding marriage, and enforce the same-sex marriage prohibition; (3) section
2.005 requires the clerk to accept a court order relating to the applicants sex change
as proof of identity and as establishing the applicants sex; (4) the legislature
intended to completely overhaul Texas marriage law without altering one word of
the relevant statutory or constitutional provisions that provide for marriage and
define relevant marriage terminology; (5) the legislature secretly intended to change
the constitution by changing the meaning of the words used in the constitution; (6)
the legislature intended to legalize transgender marriages without providing any
guidance for courts to follow in determining transgendered status; and (7) the
legislature intended to replace the constitutionally-mandated, clear definition of
marriage with an unstated definition that would necessarily depend on unspecified
facts unique to each claimed marriage.
It is inconceivable that the legislature would completely overhaul Texas
marriage law without doing so very definitively and in a manner that expresses
compliance with constitutionally mandated public policy. The 2009 amendments to
2.005, when considered in light of the law in effect at the time of their enactment
and the historical context of Texas marriage law, clearly did not overrule Littleton
4

nor did they expand the definition of marriage in Texas to include transgender
marriage. Because a person born male is immutably male, Nikki was male as a
matter of law when she attempted to marry Decedent in 2008. Therefore, Nikkis
marriage was contrary to the public policy of this state and is void as a matter of
law.
In the alternative, even if the 2009 amendments to 2.005 did legalize
transgender marriages, the amendments specifically state that they apply only to
marriages with licenses issued on or after September 1, 2009.
Thus the
amendments cannot validate Nikkis void 2008 marriage. Accordingly, this Court
should grant review in this case, reverse the judgment of the court of appeals, and
remand this case to the court of appeals to consider Nikkis remaining points of
error.
ARGUMENT
I.
UNDER LITTLETON, NIKKI IS IMMUTABLY MALE.

In Littleton, the San Antonio court of appeals held that under Texas law, a
persons sex for marriage purpose is immutably determined at birth.37 Littleton is

factually analogous to this case and clearly supports the trial courts summary
judgment. Littleton involved a purported marriage between Christie Littleton, a

37
See Littleton, 9 S.W.3d at 224, 230-31.
5

male-to-female transsexual person, and Jonathan Littleton, a man.38
As Nikki
claims in this case, Christie claimed that she considered herself to be a female from
a very early age.39 She obtained a legal name change when she was twenty-five,
and at the age of twenty-seven, before she was married, had sex reassignment
surgery.40 Nevertheless, the court held that Christies marriage to Jonathan was
void because Christie was male.41
In reaching this conclusion, the court noted that a post-operative female
transsexual is still biologically a male and that she inhabits a male body in all
aspects other than what physicians have supplied.42 Based on the undisputed fact
that Christie was a male at birth, the court concluded as a matter of law that she was
still a male and could not marry another male.43 This conclusion applies with even
greater force to Nikki, who attempted to marry Decedent before her sex
reassignment surgery had been performed.44 Therefore, at birth and at the time of

38
Id. at 224.
39
Id.
40
Id. at 224-25.
41
Id. at 231.
42
Id. at 231-32.
43
Id. at 231. Judge Angelini agreed with this conclusion in her concurring opinion, stating:
Thus, in the case of Christie Lee Littleton, it appears that all biological and physical factors were
congruent and were consistent with those of a typical male at birth. The only pre-operative
distinction between Christi Lee Littleton and typical males was her psychological sense of being
female. Under these facts, I agree that Texas law will not recognize her marriage to a male. Id.
at 232 (Angelini, J., Concurring).
44
See 2 CR 378; 4 CR 927.

6
the marriage ceremony, Nikki was in all physical respects a male. Nikkis summary
judgment evidence describing her condition and her attempts to live as a female is
of no legal significance. Nikki was born as a male and is therefore immutably a
male under Texas law. Accordingly, under the rule established by Littleton, Nikki
was a male when she attempted to marry Decedent in 2008.
Nikki attempts to denigrate Littleton by claiming it cleared the path for a
transsexual woman to marry another woman, which according to Nikki would
violate the same-sex marriage prohibition.45 But this argument misunderstands
Littletons holding. In Littleton, the court stated that although Christie [Littleton]
is medically termed a transsexual, as a matter of law . . . Christie Littleton is a
male.46 Because gender is immutably determined at birth, a person that is born
male remains male as a matter of law for his lifetime, regardless of his becoming
medically a transsexual woman.47 Thus, such a males marriage to a woman would
fall within Texass definition of marriage.
II.
BECAUSE NIKKIS MARRIAGE CONSTITUTES A SAME-SEX MARRIAGE, IT IS

NOT PRESUMED TO BE VALID.
While it is true that it is the policy of this state to preserve and uphold each
marriage against claims of invalidity, that policy does not apply where there is a

45
Response to the Petition for Review (Response) at 4.
46
Littleton, 9 S.W.3d at 225, 231 (emphasis added).
47
Id. at 223, 231.

7
strong reason . . . for holding the marriage void or voidable.48 Because same-sex
marriages are expressly made void by Chapter 6 [of the Family Code], they are
not presumed to be valid.49 Under Littleton Nikki was male when she attempted to
marry Decedent in 2008.50 Further, even though Nikki was attempting to live as a
woman at the time of her marriage, it is undisputed that Nikki had not had sex
reassignment surgery and was still anatomically a man when she attempted to marry
Decedent.51 Therefore, Nikkis marriage constitutes a same-sex marriage and is
thus not presumed to be valid.52
III.
THE COURT OF APPEALS DECISION CONFLICTS WITH LITTLETON.

In 2009, the legislature amended 2.005 of the Texas Family Code. Both
before and after the 2009 amendments were enacted, section 2.005 listed the types
of documents that an applicant for marriage license may use to prove the applicants
identity to the clerk. Prior to 2009, section 2.005 stated that an applicant could
prove identity by submitting a certified copy of the applicants birth certificate
orsome certificate, license, or document issued by this state or another state, the

48
49
Id.; see TEX. FAM CODE 6.204(West 2014).
50
See id.
51
See Brief of Appellant, Nikki Araguz, 2012 WL 1344122, *8-9 (Explaining that Nikki and
Decedent were married on August 23, 2008, and that Nikki had sex reassignment surgery six
weeks later.) (March 2, 2012).
52
1.101; 6.204.
8
United States or a foreign government.53 The 2009 amendments added specificity,

designating nineteen different documents that an applicant could use to prove
identity.54 Among those permitted documents, section 2.005(b)(8) lists an original
or certified copy of a court order relating to the applicants name change or sex
change.55
The court of appeals held that the addition of the words sex change to
2.005 overruled Littleton and created a new right of transgender marriage in
Texas.56 In so holding, the court of appeals expressly stated that an individual may
change his or her sex for the purpose of marriage and that transgender marriage
does not constitute same-sex marriage.57 Because Littleton held that gender is
immutably determined at birth and cannot be changed and transgender marriage
constitutes same-sex marriage, the court of appeals decision conflicts with
Littleton.58
Nikki contends that the two holdings are not in conflict because the legal
landscape of Texas marriage law has changed since Littleton was decided in 1999.59

53
2.005(West 2008).
54
55
See 2.005(West 2009).

Id. 2.005(b)(8)(emphasis added).
56
Estate of Araguz, 443 S.W.3d at 245.
57
See id.
58
Compare id., with Littleton, 9 S.W.3d at 224, 230-231.
59
Response at 2-5.
9
In support, she spins a remarkable tale regarding the evolution of Texas marriage
law that occurred in the decade following Littleton.60 Nikkis tale, however, is
completely unsupported by the events leading up to the 2009 amendments and the
context of their enactment.
The court of appeals justified its holding by stating it is possible that the
legal landscape has changed since [Littleton].61 But, other than the amendment to
2.005, the court of appeals decision does not point to any change in the legal
landscape of Texas marriage law since 1999. The legislature has not passed any
statute which expressly declares transgender marriages to be valid or explains how
they can be defined in a way that does not violate the constitutional and statutory
ban on same-sex marriages.
Indeed, it is the court of appeals expansive interpretation of 2.005 that
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. Surely, if the legislature
in 2009 had determined to allow people who were of the same gender when they
were born to then marry later in life and to thus legislatively redefine the terms
man, woman, marriage, and same-sex, then it would have done so in a

60
See id.
61

10
more careful way that would have described how the sex change and the marriage
could have occurred without violating the constitutional and statutory prohibition
against same-sex marriage. Instead, the 2009 amendments merely recognized a
court order relating to the applicants . . . sex change as one of nineteen types of
identification that an applicant for marriage license may present to the clerk at the
time the applicant applies for a marriage license.62 When these amendments are
considered in light of the law in effect at the time of their enactment and the
historical context of Texas marriage law, it is abundantly clear that the amendments
did not overrule Littleton and did not expand the definition of marriage in Texas to
include transgender marriage.
IV.
THE 2009 AMENDMENTS TO 2.005 DID NOT OVERRULE LITTLETON.

A.
Courts Are Required To Adhere To Rules Of Statutory And

Constitutional Construction When Construing Statutes.
In construing a statute, a courts primary role is to ascertain and give effect to

the legislatures intent.63 Courts are to presume that in enacting a statute the
legislature complied with the Texas constitution and intended the entire statute to be
effective and to provide a result feasible of execution.64 Words and phrases shall
be read in context and construed according to the rules of grammar and common

62
See TEX. FAM. CODE 2.005(b)(8)(West 2009).
63
City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010).
64
TEX. GOVT CODE 311.021(West 2014).

11
usage.65 Courts should glean the statutes intent primarily from the plain meaning
of the words in the statute,66 and regardless of whether or not the statute is
considered ambiguous on its face, courts should also consider the object sought to
be obtained by the statute, the circumstances under which the statute was enacted,
the statutes legislative history, and the consequences of a particular construction of
the statute.67
Statutes are presumed to be enacted with knowledge of and in
reference to existing law, and when a legislative enactment covers a subject

addressed by an existing law, the two provisions shall be harmonized whenever
possible to give effect to both.68
B.
The Courts Construction Disregards Statutory Historical Context

And The Circumstances Under Which The 2009 Amendments
Were Enacted.
When the 2009 amendments to 2.005 are considered in light of the law in
effect at the time and in the historical context of Texas laws relating to marriage, it
is very clear the amendments were not intended to expand the definition of
marriage in Texas to include a union between a man claiming transgender status
and another man. This historical context dates back nearly two decades. In 1997,
the legislature enacted 2.001 of the Family Code, which provides that marriage

65
66
Id.; Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493-94 (Tex. 2001).
67
68
Acker v. Texas Water Commn, 790 S.W.2d 299, 301 (Tex. 1990).
12
occurs between a man and a woman and prohibited the issuance of a marriage
license for the marriage of persons of the same sex.69 In 1999, based on the
legislatures proclamation in 2.001, the San Antonio court of appeals decided
Littleton, holding that gender is immutably determined at birth and that transgender
marriage constitutes same-sex marriage.70 In 2003, the legislature enacted 6.204
of the Family Code wherein it made clear that it intended to confine marriage to
opposite-sex couples and to exclude any other relationship which did not meet the
statutory definition of marriage.71 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 to prohibit the
recognition of any legal status identical or similar to marriage.72
Thus, the 2009 amendments were enacted after the people of Texas and its
legislature by both constitutional amendment and statutory enactment defined
marriage as a relationship which can occur only between one man and one woman
and likewise prohibited the recognition of same-sex marriage or any marriage-like
relationship that did not meet the constitutional and statutory definition of marriage.

69
70
Littleton, 9 S.W.3d at 230-231.
71
TEX. FAM. CODE 6.204(West 2008)(Section 6.204 (1) defines the phrase civil union as any
relationship status that is intended as an alternative to marriage or applies primarily to
cohabitating persons [ ] and grants to the parties of the relationship legal protections, benefits, or
responsibilities granted to the spouses of a marriage; and (2) declares same-sex marriages and
civil unions contrary to the public policy of this state and [ ] void in this state.).
72
TEX. CONST., art. I, 32.

13
The holding of the court of appeals completely disregards this historical context and
the circumstances under which the 2009 amendments were enacted.
Nikki attempts to address this historical context by changing the history.73
She alleges that the 1999 Littleton decision spurred the Texas County and District
Clerks Association to recommend (nearly ten years later) a a wide-ranging clean
up bill to the legislature for the purpose of securing clarity on the legality of
transgender marriage.74 Further, she alleges that the legislature enacted the 2009
amendments with the intent to overrule Littleton and legalize transgender
marriage.75 Nikki fails to support these allegations with any evidence or legislative
history.76 Nikkis version of the Associations recommendation, like her tale of the
evolution of Texas marriage law, represents mere manufactured history.
C.
Legislative History Following Littleton Reaffirms Littletons

Holding.
Littleton predates the enactment of 6.204 of the Family Code and article I,
32 of the constitution. Both 6.204 and article I, 32 make clear that marriage in
Texas is confined to opposite-sex couples and exclude any other status or
relationship. The legislatures enactment of 6.204 and article I, 32 reveals that
after Littleton the legislature intended to reaffirm Littletons holding and make

73
See Response at 4.
74
See id.
75
See id.
76
See id.
14
Texas marriage law even clearer. The court of appeals holding disregards that
legislative intent and instead suggests that the legislature intended to muddy Texas
marriage law.
As Nikki points out, Littleton notes the complete absence of legislative
guidelines governing marriages involving transsexuals and when, if ever,
transsexuals would be recognized as having successfully changed their sex.77
Littleton states:
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 interpret the
written word of our sister branch of government, the legislature.78
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

77
Response at 4.
78
Littleton, 9 S.W.3d at 230.

15
that the legislature did not have Littleton in mind when it enacted the 2009
amendments and that it did not intend to legalize transgender marriage.
As the court of appeals points out in its opinion, there is no . . . chapter of
the family code governing a sex change.79 If the legislature had intended to
overrule Littletons holding that gender is immutably determined at birth and cannot
be changed, surely it would have very clearly done so, defining the term sex
change and explaining when a sex change occurs. The fact it did not reveals that
the legislature did not intend to overrule Littleton when it enacted the 2009
amendments.
The court below did what the Littleton court refused to do. It fashioned a
new law on transsexuals and ma[d]e law when no law exist[ed] rather than
interpret[ing] the written word of [its] sister branch of government.80 Until the
decision below, Texas law did not recognize transgender marriage and in fact
provided that gender was immutably determined at birth. The amendments, when
considered in light of the law in effect at the time and in the historical context of

79
Estate of Araguz, 443 S.W.3d at 245. The legislatures failure to define the term does not give
credit to Nikkis argument and the court of appeals holding. As discussed in Part V.C. infra of
this Brief, to the extent that 2.005 governs sexual identity, a transgendered person might use a
court order relating to a sex change from another state as proof that although the person appears to
be one sex, he is actually the other, so that the person could marry a member of the opposite sex
as he was born.
80
Littleton, 9 S.W.3d at 230.

16
Texas marriage law, should not be construed to judicially create the right of
transgender marriage in Texas.
V.
THE 2009 AMENDMENTS TO 2.005 DID NOT CREATE A RIGHT FOR A

TRANSGENDERED PERSON TO MARRY A PERSON OF THE SAME SEX AS HE
OR SHE WAS BORN.
Under the 2009 amendments to 2.005, an applicant for marriage license may
present to the clerk a copy of a court order relating to the applicants . . . sex
change to prove the applicants identity.81 The court of appeals holding that the
legislature intended to legalize transgender marriage with the enactment of the
amendments is premised on the following assumptions: (1) that the term identity
as it is used in 2.005 means sexual identity; (2) that 2.005 was intended to
define marriage, create rights regarding marriage, and enforce the same-sex
marriage prohibition; (3) that 2.005 requires the clerk to accept a court order
relating to the applicants sex change as proof of identity and as establishing the
applicants sex; (4) that the legislature intended to completely overhaul Texas
marriage law without altering one word of the relevant statutory or constitutional
provisions that provide for marriage and define relevant marriage terminology; (5)
that the legislature secretly intended to change the constitution by changing the
meaning of the words used in the constitution; (6) that the legislature intended to
legalize transgender marriages without providing any guidance for courts to follow

81
TEX. FAM. CODE 2.005(b)(8)(West 2009).
17

in determining transgendered status; and (7) that the legislature intended to replace
the constitutionally-mandated, clear definition of marriage with an unstated
definition that would necessarily depend on unspecified facts unique to each
claimed marriage. Further, the validity of the court of appeals decision requires
that each assumption be correct. For the reasons explained below, all of these
assumptions fail to pass muster. Therefore, the Court should grant review and
reverse the court of appeals judgment.
A.
The Term Identity Does Not Mean Sexual Identity.
The court of appeals holding hinges on its construction of the term identity
as referring to sexual identity.82
That construction is fundamentally flawed.
Many of the various documents listed in 2.005 that an applicant may use to prove
identity do not designate whether the applicant is a man or a woman.83 The rules
of statutory construction, when properly applied, reveal that identity does not
refer to sexual identity. Applying the terms plain language, reading the statute in
context, and considering the history of Texas marriage law, it is clear that identity
means that the person applying for the license is the person whose name will be on
the license. In fact, a survey of Texas case law involving the litigation of identity in

82
83
See 2.005(b)(5,9,11,12,13,14)(Section 2.005 lists a military identification card, a military

dependent identification card, military records, a military release or discharge documentation, a
copy of a marriage license or divorce decree, a motor vehicle title, and school records as forms
that an applicant may use to prove identity. None of these documents reveal whether the
applicant is a man or a woman.).
18
connection with the validity of a marriage or a marriage license reveals a litany of

bigamy prosecutions aimed at determining whether the person named on the license
was the person involved in the marriage.84 This history clearly supports Petitioners
definition of the term identity.
Nikki provides the Court with various definitions of the term identity.85
Notably, none of those definitions state that identity means sexual identity, nor
do they discuss sex or gender.86 Nikki argues that the failed attempt of certain
legislators in 2011 to remove the words sex change from the statute indicates the
legislature in 2009 intended the amendments to create the right of transgender
marriage.87
However, as this Court has acknowledged, a court cannot draw
inferences of the legislatures intent from the failure of bills to pass.88 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.89

84
See Johnson v. State, 258 S.W.2d 829 (Tex. Crim. App. 1953); Bell v. State, 184 S.W.2d 635
(Tex. Crim. App. 1944); Parker v. State, 53 S.W.2d 473 (Tex. Crim. App. 1932); Jones v. State,
17 S.W.2d 1053 (Tex. Crim App. 1928); Rogers v. State, 204 S.W. 222 (Tex. Crim. App. 1918).
85
Response at 7.
86
See id.
87
Id. at 8-9.
88
Dutcher v. Owens, 647 S.W.2d 948, 950 (Tex. 1983).
89
Texas Employment Commission v. Holberg, 440 S.W.2d 38, 42 (Tex. 1969).

19
Thoroughly analyzing the statute, reading it in context, considering the

history of Texas marriage law, and applying the terms plain language yields only
one conclusionthe term identity does not mean sexual identity and the 2009
amendments did not legalize transgender marriage.90
B.
Section 2.005 Is An Administrative Statute That Does Not Define

Marriage, Create Rights Regarding Marriage, Or Enforce The
Prohibition Against Same-Sex Marriage.
The court of appeals holding assumes that 2.005 defines marriage, creates
rights regarding marriage, and enforces the same-sex marriage prohibition. That
assumption is wrong. Other provisions of Texas marriage law accomplish those
objectives.
Sections 2.001 and 6.204 of the Family Code and article I, 32 of the
constitution define marriage and create rights regarding marriage. Specifically,
2.001 provides for the issuance of marriage licenses to persons of the opposite sex
and prohibits the issuance of licenses to persons of the same sex.91 Section 6.204
and article I, 32 confine marriage to opposite-sex couples, exclude from the

90
Petitioners remaining arguments within Part V. of this Brief are made in the event the Court
determines that the term identity means sexual identity. As Petitioners remaining arguments
reveal, even if the Court determines that the term identity means sexual identity, the
judgment of the court of appeals must still be reversed.
91
See TEX. FAM. CODE 2.001(West 2014).

20
definition of marriage any relationship that does not meet the statutory definition,
and prohibit the recognition of any legal status identical or similar to marriage.92
Section 2.005 is an administrative statute that merely lists documents that an
applicant for marriage license may use to prove identity.93 The courts holding
attempts to broaden the objective of 2.005. It assumes that 2.005 determines
when marriage licenses can and cannot be issued and enforces prohibition against
same-sex marriage. But 2.005 does not perform those tasks. Rather, 2.002 and
2.004 govern the issuance of marriage licenses and enforce the same-sex marriage
prohibition by requiring that the applicants appear before the county clerk and
swear under oath whether they are male or female.
Section 2.002 provides that each applicant provide the information
applicable to that person for which the spaces are provided in the application for
marriage license, mark the appropriate boxes provided in the application, take
the oath printed on the application and sign the application before the county
clerk.94 Section 2.004 provides that the application form must contain, among
other things, spaces for each applicants full name, including the womans maiden
surname, a printed oath reading: I SOLEMNLY SWEAR (OR AFFIRM) THAT
THE INFORMATION I HAVE GIVEN IN THIS APPLICATION IS CORRECT,

92
See TEX. CONST. art. I, 32; TEX. FAM. CODE 6.204(West 2014).
93
See TEX. FAM. CODE 2.005(West 2009).
94
TEX. FAM. CODE 2.002(3-5)(West 2014).

21
and spaces immediately below the printed oath for the applicants signatures.95
Section 2.004 further provides that an applicant commits an offense if the
applicant provides false information under Subsection (b) . . . (2) [the subsection
that provides spaces for each applicants full name, including the womans maiden
surname].96
Because 2.004 reads the womans maiden surname rather than womens
maiden surnames, the statute clearly requires that one applicant be male and the
other be female.97 Since 2.002 and 2.004 require that the applicants sign under
oath that the information they provide on the application is correct,98 those statutes
enforce the legislatures opposite-sex mandate and prohibition of same-sex
marriage. Section 2.005s plain wording, the object it seeks to accomplish, and its
relation to other marriage legislation demonstrate that it is merely an administrative
statute designed to describe acceptable forms of identification and not designed to
define marriage, create rights regarding marriage, or enforce the prohibition against
same-sex marriage.

95
TEX. FAM. CODE 2.004(b)(2),(8),(9)(West 2014)(emphasis added). A copy of 2.004 is
included in the Appendix under Tab 10.
96
2.004(c).
97
2.004(b)(2).
98
2.002(3),(4),(5), 2.004(b)(8),(9),(c).
22
C.
Section 2.005 Does Not Require The Clerk To Accept A Court

Order Relating To A Sex Change As Proof Of Identity Or As
Establishing The Applicants Sex.
The court of appeals holding assumes that 2.005 requires that the clerk
accept any and all of the documents listed in 2.005. But it does not contain any
such requirement. Rather, section 2.005 merely lists the types of documents that an
applicant may use to prove identity.
The court of appeals holding also assumes that 2.005 requires the clerk to
accept a court order relating to an applicants sex change as proof of the applicants
sex. But 2.005 does not state that a court order relating to an applicants sex
change establishes the applicants sex for the purpose of marriage.
Further, the court of appeals holding 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. However, an applicant could submit a court order relating to a
sex change to prove his or her original sex rather than the changed sex.99
Interestingly, Nikki included a very analogous example in the clerks recorda
letter from the El Paso county attorney documenting an attempt by a man who had
sex reassignment surgery and then submitted a birth certificate, a name change

99
The court of appeals opinion states that Heather and Simona dismiss [the sex change] as
being, in essence, meaningless surplusage that did not have the effect of legitimizing any
individuals sex change under Texas law. See Estate of Araguz, 443 S.W.3d at 244. Because a
court order relating to an applicants a sex change could be used to reveal the applicants original
sex, the clerks right to refuse such marriage license and the fact that the 2009 amendments did
not legalize transgender marriage do not render the sex change language meaningless.
23

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

marry a woman.100 Under Littleton, a persons sex is immutably determined at birth
and cannot be changed. Nikkis example only serves to reaffirm Littleton.
Thus, section 2.005 does not require the clerk to accept a court order relating
to an applicants sex change as proof of identity. Nevertheless, even if the clerk
were to accept the order as proof of identity, the order does not establish that the
persons sex has changed for the purpose of marriage so that the person may enter a
transgender marriage.
D.
The Legislature Did Not Alter One Word Of The Statutory Or

Constitutional Provisions That Provide For Marriage Or Define
Relevant Marriage Terminology.
The courts holding assumes that the legislature, by enacting the 2009
amendments, intended to substantially redefine the marriage relationship and the
terms man, woman, marriage, and same sex as those terms are used in the
Family Code or the constitution, and effectuate these changes without altering one
word of any of the provisions defining them. It is inconceivable that the legislature
would completely overhaul the states marriage law without expressly altering those
statutes and referencing the constitution.
The fact that the legislature did not
expressly alter the marriage statutes or reference the constitutional ban on same-sex
marriage shows the legislature in 2009 did not intend to change the marriage

100
6 CR 1591-92.
24

definition. Rather, it intended only to provide clarity to county clerks as to what

documents they could accept as proof of identity.
This intent is verified by reviewing the legislative history contained in HB
3666s Bill Analysis section entitled Authors/Sponsors Statement of Intent,
which states that HB 3666 is a clean-up bill requested by the Texas County and
District Clerks Association. The bill specifies valid forms of identification to be
used by an applicant for a marriage license.101 The Bill Analysis says nothing
about reversing Littleton, allowing transgender marriages, or intending to change
the definition of man, woman, marriage, or same sex as those terms are
used in the Family Code and the constitution. On all these matters, the legislative
text and history is completely silent, and that silence contravenes the court of
appeals holding that the amendments represented a sea-change in Texas marriage
law.
E.
The Court Of Appeals Construction Of 2.005 Assumes the

Legislature Intended to Change the Constitution By Changing The
Meaning Of The Terms Man, Woman, and Marriage.
The court of appeals construction of 2.005 assumes the legislature in 2009

intended to broaden the definition of the term woman as it is used in article 1, 32
of the constitution and the relevant marriage statutes to include a person who was

101
S. Research Ctr., Bill Analysis, Tex. H.B. 3666, 81st Leg., R.S. (2009), a copy of which is
included in the Appendix as Tab 11.
25

born as a man but later decides to live as a woman.102 It likewise assumes that the
legislature in 2009 intended to significantly broaden its definition of the term
marriage as used in the constitution and the relevant marriage statutes to include a
union between a person born as a man but living as a woman and another man and
determined that such a marriage was not a same-sex marriage.
When construing statutes, courts are required to assume that the legislature
intended to comply with the constitution.103 The court of appeals construction of
the 2009 amendments to 2.005 and its broadened definitions of the terms woman
and marriage assumes the legislature intended to change the constitution by
fundamentally changing the meaning of the words used in the constitution. The
courts broadened definitions also contravene this Courts teaching that, when
construing the constitution, courts should rely heavily on its literal text and must
give effect to its plain language.104 Surely if the legislature had intended to
completely overhaul Texas marriage law and re-define marriage terminology, then
it would have said something about that intent and passed a statute that definitively
and carefully expressed the new policies in favor of transgender marriage.

102
This broadened definition of the term woman would necessarily narrow the definition of the
term man, excluding from the definition of the term man a person who was born as a man but
later decides to live as a woman.
103
104
Stringer v. Cendant Mortg. Corp., 23 S.W.3d 353, 355 (Tex. 2000).

26
F.
The 2009 Amendments

Transgendered Status.
Provide
No
Guidance
Regarding
The court of appeals holding assumes that the legislature intended to legalize
transgender marriages without providing any guidance for courts to follow in
determining when a persons gender actually changes and whether a marriagelicense applicant is male or female. The amendments provide no guidance as to
whether compliance with the WPATH standards of care is sufficient to legally
change an individuals sex, whether sex reassignment surgery is required, or
whether any other facts are determinative or properly considered in judicially
determining a persons sex.
How long must a person live as a member of the
opposite sex before that persons sex changes under Texas law? What if the person
does not report early childhood feelings that her sex was wrong? Does that defeat a
claim that she was really born as a member of the opposite sex? Is the question of a
persons sex an issue of fact? If so, are persons that are opposed to the claimed sex
change entitled to hire experts and depose the applicant regarding the genuineness
of her feelings about her gender and whether and for how long she followed the
WPATH standards?
In light of the express constitutional and statutory ban on same-sex marriages
and civil unions, it is inconceivable that the legislature intended to legalize
27

transgender marriage but then forgot to explain the difference between transgender
marriage and statutorily and constitutionally forbidden same-sex marriage.105
G.
The Courts Holding Replaces The Constitutionally-Mandated,

Clear Definition Of Marriage With A Definition That Depends
Wholly On Unspecified Facts.
Finally, the court of appeals holding assumes that the legislature intended to
replace the constitutionally-mandated, clear definition of marriage with a definition
that depends wholly on unspecified facts unique to each claimed marriage. For
example, Nikki in this case claims she is a woman. She supports that claim with
medical records and affidavit testimony from her expert, who describes what Nikki
said about how she felt as a 4 to 5 year old child.106 Nikkis expert explains that
Nikki has lived as a woman since her teenage years and on the basis of Nikkis
experience, concludes that Nikki has been a female since the late 1990s.107 It is
undisputed that Nikki did not have sex reassignment surgery until after she obtained
a marriage license with Mr. Araguz, but in the view of Appellants expert, that
surgery was not a definitive point in her transfer from male to female.108
The courts holding directly contravenes the legislatures mandate that when
construing a statute, courts are to presume that the legislature intended a result

105
See 311.021(4)(the legislature is presumed to intend a just and reasonable result that is
feasible of execution).
106
4 CR 949; 6 CR 1611.
107
7 CR 1857.
108
7 CR 1858.
28
feasible of execution in enacting the statute.109 Under Littleton, a persons sex for
marriage purposes is determined at birth and evidenced by the persons birth
certificate. Allowing a persons sex for marriage purpose to be determined by the
persons life-long feelings rather than the persons sex at birth renders meaningless
the Texas constitutional and statutory provisions that define marriage as occurring
between one man and one woman and prohibit and declare against public policy
same-sex marriages, civil unions, or the recognition of any legal status identical or
similar to marriage.110
Instead of enforcing these important constitutional and
statutory provisions, the courts holding riddles them with exceptions so as to allow
same-sex couples to marry based on an unverifiable claim by one participant that he
or she has always felt more like a member of the opposite sex. It is inconceivable
that the legislature intended to replace the constitutionally-mandated, clear
definition of marriage with a definition that depends wholly on unspecified facts
unique to each claimed marriage. 111
The court of appeals decision disregards the plain language of 2.005, the
statutes historical context, and the circumstances under which the 2009
amendments were enacted. The courts opinion hinges on numerous assumptions,

109
See 311.021(4); see also 311.023(5)(West 2014)(Courts should consider consequences of a
particular construction).
110
TEX. CONST., art. I, 32; TEX. FAM. CODE 2.001(West 2014); TEX. FAM. CODE 6.204(West
2014).
111
See 311.021(4); 311.023(5).

29
all of which fail to pass muster. Until the court issued its opinion, the law in Texas
provided that gender was immutably determined at birth and prohibited transgender
marriage as constituting same-sex marriage. Because the court of appeals decision
represents a judicial renovation of Texas marriage law that is wholly unsupported
by the Texas statutory and constitutional provisions governing marriage, the Court
should grant review and reverse the court of appeals judgment.
VI.
THE 2009 AMENDMENTS CANNOT BE RETROACTIVELY APPLIED TO

VALIDATE NIKKIS VOID 2008 MARRIAGE.
Even if the Court determines that the 2009 amendments created a right for a
transgendered person to marry a person of the same sex as he or she was born, the
Court should still reverse the court of appeals judgment because the statute
expressly provides that the amendments are not retroactive. The 2009 amendments
to 2.005 were made effective September 1, 2009. The enacting legislation (HB
3666) specifically provided that the amendments would not apply retroactively,
stating:
Sections 2.002, 2.005, 2.006, 2.009 and 2.102 Family Code, as
amended by this Act, apply only to an application for a marriage license
submitted to a county clerk on or after the effective date [Sept. 1, 2009] of
this Act. An application for marriage license submitted before the effective
date of the Act is governed by the law in effect immediately before that date,
and the former law is continued in effect for that purpose.112

112
Act of May 27, 2009, 81st Leg., R.S., Ch. 978, 12(a), 2009 Tex. Gen. Laws 2571, 2574
(emphasis added), a copy of which is included in the Appendix as Tab 12.
30

Statutes in Texas are presumed to apply only prospectively.113 And when the
legislature gives express instruction for a statute not to apply retroactively, courts
must follow those instructions.114 In this case, the legislature directed that the
amendments should apply only to applications for marriage submitted on or after
September 1, 2009, and that the prior law remained in effect for applications
submitted before that date. Nikki applied for her marriage license in 2008.115 By
holding that a fact issue exists as to Nikkis sex and remanding the case to the trial
court, the court of appeals necessarily found that 2009 amendments could
retroactively validate Nikkis void 2008 marriage. The courts holding directly
contravenes the legislatures mandate.116
Accordingly, the Court should grant
review in this case and reverse the court of appeals judgment.

VII. ISSUES RAISED BY NIKKI IN HER RESPONSE TO THE PETITION FOR
REVIEW.
Nikki raises two issues in her Response to the Petition for Review: (1)
whether she presented uncontroverted evidence that she had a sex change117; and

113
114
See Brady v. State, 906 S.W.2d 268, 270 (Tex. App.Amarillo 1995, pet. refd.).
115
2 CR 378-80.
116
Estate of Araguz, 443 S.W.3d at 243-245, 250.
117
The manner in which Nikki raises this issue is curious. It is unclear whether Nikki is asking
the Court to reverse the denial of her no-evidence motion for summary judgment based on
evidence she later submitted in response to Petitioners traditional motions for summary judgment
or whether she believes a factual determination of her gender is relevant to the Courts
consideration of the 2009 amendments to 2.005. As will be explained below, to the extent that
Nikki asks the Court to render judgment based on evidence she submitted with her response to
31
(2) whether her California judgment and birth certificate are entitled to full faith and
credit in Texas.118 Also, Nikki argues that the Court should deny review in this case
because the legality of transgender marriage will likely become moot before this
court can address it.119
For the reasons stated below, the Court should deny
consideration of Nikkis issues, grant review in this case, and reverse the court of
appeals judgment.
A.
The Court Should Deny Consideration Of Nikkis Issues Because

She Did Not File A Separate Petition For Review For Those Issues.
This Court has well established that it may not consider points of appeal that
were presented in the court of appeals, were not decided by the court of appeals,
and were not presented to this Court in a separate application for writ of error when
those points, if sustained, would require a more favorable judgment than the one
rendered by the court of appeals.120 It has also held that it may not consider points

Petitioners motions for summary judgment, she has not properly raised the issue and thus, the
Court should not consider whether the evidence establishes that she had a sex change. See
infra, Part VII.A. To the extent Nikki believes a factual determination of her gender is relevant to
the Courts consideration of the 2009 amendments, she is incorrect. Whether or not Nikki
presented uncontroverted evidence that she had a sex change is immaterial to whether the 2009
amendments to 2.005 legalized transgender marriage. See infra, Part VII.B.
118
See Response at vii, 9-12.
119
See id. at 12-14.
120
See Caballero v. Central Power and Light Co., 858 S.W.2d 359, 362 (Tex. 1993) (CP&L
asserts in this court several arguments that it presented to the court of appeals. These include
rendition points and remand points. CP&L failed to file a separate application for writ of
error seeking affirmative relief beyond the reversal and remand afforded by the court of appeals
judgment. CP&L has therefore waived its rendition points.); Archuleta v. International Ins. Co.,
667 S.W.2d 120, 123 (Tex. 1984) (We may not, however, consider this point because, if
sustained, it would require a rendition of judgment . . . . When a point of error before the court of
32

of appeal that were decided by the court of appeals but were not presented to this
Court in a separate application for writ of error when those points, if sustained,
would require a more favorable judgment than the one rendered by the court of
appeals.121 A rendition of judgment is a more favorable than a judgment that
remands the case.122
Therefore, when the court of appeals issues a judgment
remanding the case, any point of appeal that, if sustained, would require a rendition
of judgment must be specifically raised in a separate petition for review to this
Court.123

appeals would require a different and more favorable judgment than the one rendered, such point
must be brought to the Supreme Court by application for writ of error.); Pruitt v. Republic
Bankers Life Ins. Co., 491 S.W.2d 109, 112 (Tex. 1973) (We may not, as insisted by Republic as
respondent here, consider its points before the intermediate court which wre [sic] not considered
there but which, if sustained, would have required a different and more favorable judgment, i.e., a
rendition of judgment in its favor. Republic has not filed a writ application from the unfavorable
judgment of the intermediate court in this respect.). C.f. Padilla v. LaFrance, 907 S.W.2d 454,
n.6 (Tex. 1995) (Where the issue before the supreme court was whether court of appeals properly
affirmed summary judgment in LaFrances favor, the supreme court could consider LaFrances
cross-point regarding dismissal of appeal for failure to file a transcript even though LaFrance did
not file his own application for writ of error because cross-point does not seek a different and
more favorable judgment since the end results would be equally favorable.).
121
Gee v. Liberty Mutual Fire Ins. Co., 765 S.W.2d 394, 397 (Tex. 1989) (Liberty Mutuals no
evidence points were overruled by the court of appeals and it again attempts to raise these points
before this court. Thus, Liberty Mutual is seeking a judgment that is more favorable than it
obtained in the court of appeals because if we sustain the no evidence points, it would be
necessary for us to reverse and render, as opposed to reverse and remand. Liberty Mutual has
improperly raised the no evidence points as cross-points without bringing forth a separate
application for writ of error. Therefore, these points are not properly before this court.).
122
See Caballero, 858 S.W.2d at 362; Gee, 765 S.W.2d at 397; Archuleta, 667 S.W.2d at 123;
Pruitt, 491 S.W.2d at 112.
123
See id.
33
The court of appeals reversed the trial courts judgment and remanded the
case to the trial court.124 Nikki did not petition this Court to review any errors in the
court of appeals judgment. Rather, in her Response to Petitioners Petition for
Review, she raised the following issues: (1) whether she presented uncontroverted
evidence that she had a sex change; and (2) whether her California judgment and
birth certificate are entitled to full faith and credit in Texas.125 The court of appeals
addressed the first issue but it did not address the second. Regardless of whether or
not the court of appeals addressed the issues, Nikki was required to specifically
raise the issues in a petition for review to this Court since both issues, if sustained,
would require a rendition of judgment. Notably, in her brief to the court of appeals,
Nikki requests the court render judgment on these two issues.126 Because Nikki did
not specifically petition this Court to review her issues in a separate petition for
review, this Court should deny consideration of Nikkis issues.127

124
Estate of Araguz, 443 S.W.3d 233,
125
See Response to Petition for Review at vii, 9-12.
126
See Brief of Appellant, Nikki Araguz, 2012 WL 1344122, *15 (asking for a rendition of
judgment because she argues the uncontroverted summary judgment evidence established she was
female), *25 (asking for a rendition of judgment because she argues the California judgment and
birth certificate are entitled to full faith and credit in Texas) (March 2, 2012).
127
In the event the Court nevertheless decides to address the issues that Nikki has raised, Ms.
Delgado and Ms. Longoria request the opportunity to prepare a responsive brief concerning those
issues.
34
B.
Whether Nikki Presented Uncontroverted Evidence That She Had

A Sex Change Is Immaterial.
Nikkis argument that she presented uncontroverted expert proof that she had
a sex change completely misses the mark. In the trial court, Petitioners moved
for summary judgment on the grounds that, under Littleton and the relevant
statutory and constitutional provisions relating to marriage in Texas, Nikki was a
man when she attempted to marry Decedent and her marriage therefore constituted
same-sex marriage.128 The court of appeals held that the 2009 amendments to
2.005 legalized transgender marriage and that Nikki had raised a genuine issue of
material fact regarding her gender.129
Nikki moved for no-evidence summary judgment on the issue of her gender
in the trial court.130 The court of appeals held that, in response to Nikkis noevidence motion, Petitioners produced evidence [that] showed that Nikki had male
sex organs during the marriage.131
Specifically, during summary judgment
proceedings, Petitioners pointed out that Nikki was born without female sexual or
reproductive organs and with male organs, which she had until the time of her post-

128
See 1 CR 146, 267.
129
130
Id. As the court of appeals noted, Nikki did not move for traditional summary judgment. See
id. (Nikkis motion was in form and substance a no evidence motion for summary judgment.).
131
Id.
35
wedding sex reassignment surgery in 2008.132 The court of appeals held that this
was enough to raise a fact issue about whether Nikki was male during the marriage
because a rational trier of fact could draw a reasonable inference that Nikki was
male based on her male sex organs."133
The two issues in front of this Court are (1) whether the 2009 amendments
legislatively overruled Littleton and (2) whether those amendments can validate a
void 2008 marriage. Whether Nikki had a sex change is immaterial to both of those
issues. If the amendments did not legislatively overrule Littleton, then gender is
immutably determined at birth. Under Littleton, because Nikki was born male, she
is immutably male and cannot marry another male.
If the amendments did legislatively overrule Littleton but cannot be
retroactively applied to validate a void 2008 marriage, then at the time that Nikki
married Decedent, the law still provided that gender is immutably determined at
birth.
Under the law as it existed when Nikki attempted to marry Decedent,
because Nikki was born male her marriage to Decedent was not valid.
Finally, if the amendments did legislatively overrule Littleton and can be
applied to retroactively validate a void 2008 marriage, then the case will be
remanded to the trial court so the parties can engage in protracted litigation over

132
1 CR 162-63; 3 CR 606; 2 CR 456, 541; 4 CR 924, 928.
133
Estate of Araguz, 443 S.W.3d at 249-50.

36
Nikkis gender, which they will have to do without any legislative guidance as to
the standards for making that determination. Because Nikki has not petitioned this
Court to reverse and render judgment on her no-evidence motion for summary
judgment, her argument that she presented uncontroverted evidence that she had a
sex change is immaterial to this Courts analysis of the issues before it.
C.
Potential Holdings By Federal Courts Do Not Moot The Issue

Before This Court.
Nikki argues that since the issue of same-sex marriage is currently before the
Fifth Circuit, and since the United States Supreme Court may at some point
consider the issue, the legality of transgender marriage is likely to become moot
before this Court could address it.134 First, Nikkis argument 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.135
Second, Nikkis argument urges this Court to speculate what changes in law
may occur and render a decision based on that speculation. While the U.S. Supreme
Court has granted certiorari on the same-sex marriage issue in Obergefell v.
Hodges, it is not a foregone conclusion that the Court will decide the issue as Nikki

134
Response at 12-14.
135
Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (emphasis added).
37
hopes. If it does, then this Court will have to decide whether a marriage can be
retroactively validated based on constitutional rights which were not recognized
until years after the marriage ended. Conversely, if the same-sex marriage issue is
not decided as Nikki anticipates, then this Court will have missed an opportunity to
clarify the legality of transgender marriage under Texas law.
CONCLUSION AND PRAYER
For the foregoing reasons, the 2009 amendments to 2.005 did not
legislatively overrule Littleton and create a right for a transgendered person to
marry a person of the same sex as he or she was born. However, even if the 2009
amendments to 2.005 had legislatively overruled Littleton and legalized
transgender marriage, those amendments cannot be retroactively applied to validate
Nikkis void 2008 marriage. Accordingly, Petitioners pray that this Court grant
review of this case, set this case for oral argument, reverse the court of appeals
judgment, and remand the case back to the court of appeals for it to consider
Nikkis remaining points of error.
38

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.
6810 FM 1960 Rd. West
Telephone: (713) 659-5200
Fax: (713) 659-2204
Frank E. Mann
5151 Katy Freeway, Suite 140
Telephone: 713/524-6868
Facsimile: 713/524-1931
ATTORNEYS FOR APPELLEE,

HEATHER DELGADO IN HER
CAPACITY A/N/F OF TREVOR
ARAGUZ AND TYLER ARAGUZ
By:
/s/ Chad P. Ellis, by permission

Chad P. Ellis
302 Jackson Street
Telephone: 832/595/1242
Facsimile: 832/595/1906
chad@ei-law.com
ATTORNEY FOR APPELLEE,

SIMONA LONGORIA
39

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 20th day of January, 2015, on the
following:

Counsel for Respondent, Nikki Araguz

Kent Rutter
Haynes and Boone, LLP
1221 McKinney Street, Suite 2100
Kenneth E. Broughton
Reed Smith, LLP
811 Main Street, Suite 1700
Alene Ross Levy
Alene Levy Law Firm, P.L.L.C.
6262 Woods Bridge Way
Phyllis Randolph Frye
Darrell Steidley
Frye, Oaks & Benevidez, PLLC
3315 Mercer
Mitchell Katine
John Nechman
Katine & Nechman, L.L.P.
1111 North Loop West, Suite 180
40

Counsel for National Union Fire Insurance Company:

Phillip Bechter
Schwartz, Junell, Greenberg & Oathout, L.L.P.
909 Fannin, Suite 2700
/s/
Kevin P. Parker
Kevin P. Parker
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 9,480 words, excluding the parts of the brief
exempted by TEX. R. APP. P 9.4(i)(1).
/s/ Kevin P. Parker

Kevin P. Parker
Attorney for Petitioner, Heather Delgado
Dated: January 20, 2015
41

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FILED

IDENTITY OF PARTIES AND COUNSEL

COUNSEL FOR PETITIONER SIMONA LONGORIA

COUNSEL FOR RESPONDENT NIKKI ARAGUZ

UNDER LITTLETON, NIKKI IS IMMUTABLY MALE .................................... 5

BECAUSE NIKKIS MARRIAGE CONSTITUTES A SAME-SEX

THE COURT OF APPEALS DECISION CONFLICTS WITH

THE 2009 AMENDMENTS TO 2.005 DID NOT OVERRULE

Courts Are Required To Adhere To Rules Of

The Courts Construction Disregards Statutory

Legislative History Following Littleton Reaffirms

THE 2009 AMENDMENTS TO 2.005 DID NOT CREATE A

The Term Identity Does Not Mean Sexual Identity .......... 18

Section 2.005 Is An Administrative Statute That

Section 2.005 Does Not Require The Clerk To

The Legislature Did Not Alter One Word Of The

The Court Of Appeals Construction Of 2.005

The 2009 Amendments Provide No Guidance

THE 2009 AMENDMENTS CANNOT BE RETROACTIVELY APPLIED

VII. ISSUES RAISED BY NIKKI IN HER RESPONSE TO THE PETITION

The Court Should Deny Consideration Of Nikkis

Whether Nikki Presented Uncontroverted Evidence

Potential Holdings By Federal Courts Do Not Moot

CONCLUSION AND PRAYER ............................................................................. 38

Acker v. Texas Water Commn,

TEX. CONST. art. I, 32 ............................................................. xv, xviii, 3, 13, 21, 29

STATUTES & RULES

TEX. FAM. CODE 2.004 (West 2014) ................................................................21, 22

STATEMENT OF THE CASE

PROCEEDINGS IN THE TRIAL COURT

Specifically, Petitioners filed a traditional motion for summary

See 1 CR 146, 267.

See Estate of Araguz, 443 S.W.3d at 233.

Estate of Araguz, 443 S.W.3d at 245-51.

See Notice Denying Motion for Rehearing, Tab 4.

The court held that the 2009

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

See Estate of Araguz, 443 S.W.3d at 245.

Compare id., with Littleton, 9 S.W.3d at 231.

See Estate of Araguz, 443 S.W.3d at 245.

In so holding, the court completely overhauled Texass marriage law in a manner

ISSUES PRESENTED FOR REVIEW

TEX. CONST., art I, 32.

August 19, 2008

August 23, 2008

July 20, 2010

SUMMARY OF THE ARGUMENT

In 2003, with the enactment of 6.204 of the Family Code, the

Littleton, 9. S.W.3d at 224, 230-31.

TEX. CONST., art. I, 32.

UNDER LITTLETON, NIKKI IS IMMUTABLY MALE.

persons sex for marriage purpose is immutably determined at birth.37 Littleton is

male-to-female transsexual person, and Jonathan Littleton, a man.38

See 2 CR 378; 4 CR 927.

BECAUSE NIKKIS MARRIAGE CONSTITUTES A SAME-SEX MARRIAGE, IT IS

Littleton, 9 S.W.3d at 225, 231 (emphasis added).

Id. at 223, 231.

THE COURT OF APPEALS DECISION CONFLICTS WITH LITTLETON.

Id.; see TEX. FAM CODE 6.204(West 2014).

United States or a foreign government.53 The 2009 amendments added specificity,

See 2.005(West 2009).

Estate of Araguz, 443 S.W.3d at 245.

Compare id., with Littleton, 9 S.W.3d at 224, 230-231.