Delgado V Araguz: Petition For Review Filed On Behalf of Heather Delgado

FILED
14-0404
6/27/2014 4:10:01 PM
tex-1672918
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.
PETITION FOR REVIEW

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
Edward C. Burwell
Law Offices of Edward C. Burwell
5151 Katy Freeway, Suite 140
Telephone: 713/665-5761
Facsimile: 713/524-1931
burwelllaw@gmail.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
Law Offices of Frank E. Mann
Telephone: 713/524-6868
Facsimile: 713/524-1931
frankmann@mannfamilylaw.com
June 27, 2014

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
Telephone: 713/524-6868
Facsimile: 713/524-1931
Edward C. Burwell
Telephone: 713/665-5761
Facsimile: 713/524-1931
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................................................................................... vii
STATEMENT OF THE CASE .................................................................................ix
STATEMENT OF JURISDICTION...................................................................... xiii
ISSUES PRESENTED FOR REVIEW ..................................................................xvi
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT ........................................................................ 2
ARGUMENT ............................................................................................................. 3
I.
UNDER LITTLETON, NIKKI IS IMMUTABLY MALE .................................... 3
II.
THE 2009 AMENDMENTS TO 2.005 DID NOT OVERRULE

LITTLETON .............................................................................................. 5
III.
A.
Courts are Required to Adhere to Rules of Statutory and

Constitutional Construction when Construing Statutes .............. 5
B.
The Courts Construction Disregards Statutory Historical

Context ........................................................................................ 6
C.
The Term Identity Does Not Refer to Sexual Identity ........ 9
D.
Section 2.005 has Never Purported to Define Marriage ........... 11
THE 2009 AMENDMENTS CANNOT BE RETROACTIVELY APPLIED

TO VALIDATE NIKKIS VOID 2008 MARRIAGE ..................................... 15
CONCLUSION AND PRAYER ............................................................................. 17
CERTIFICATE OF SERVICE ................................................................................ 19

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

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

790 S.W.2d 299 (Tex. 1990) ...................................................................................... 6
Bell v. State,
184 S.W.2d 635 (Tex. Crim. App. 1944) ................................................................ 10
Brady v. State,
906 S.W.2d 268 (Tex. App.Amarillo 1995, pet. refd.) ...................................... 17
City of Waco v. Kelley,
309 S.W.3d 536 (Tex. 2010) ...................................................................................... 5
In re Estate of Araguz,
No. 13-11-00490-CV, 2014 WL 576085
(Tex. App.Corpus Christi Feb. 13, 2014) .....................................................passim
Helena Chemical Co. v. Wilkins,
47 S.W.3d 486 (Tex. 2001) ........................................................................................ 6
Johnson v. State,
258 S.W.2d 829 (Tex. Crim. App. 1953) ................................................................ 10
Jones v. State,
17 S.W.2d 1053 (Tex. Crim App. 1928) ................................................................ 10
Littleton v. Prange,
9 S.W.3d 223 (Tex. App.San Antonio 1999, pet. denied) ............................passim
Parker v. State,
53 S.W.2d 473 (Tex. Crim. App. 1932) .................................................................. 10
Rogers v. State,
204 S.W. 222 (Tex. Crim. App. 1918) .................................................................... 10
Stringer v. Cendant Mortg. Corp.,
23 S.W.3d 353 (Tex. 2000) ...................................................................................... 12
vii

CONSTITUTIONAL PROVISIONS
PAGE(S)
TEX. CONST. art. I, 32 ...................................................................... xiii, xvi, 2, 7, 15

STATUTES & RULES
PAGE(S)
TEX. FAM. CODE 1.101 (West 2008) ........................................................................ 3

TEX. FAM. CODE 2.001 (West 2008) ...............................................................passim
TEX. FAM. CODE 2.004 (West 2014) ................................................................10, 11
TEX. FAM. CODE 2.005 (West 2008) ........................................................................ 9
TEX. GOVT CODE 22.001 (West 2014)......................................................... xiii, xiv
Tex. Govt Code 311.011 (West 2014).................................................................... 5
Tex. Govt Code 311.021 (West 2014)..................................................5, 12, 14, 15
Tex. Govt Code 311.022 (West 2014).................................................................. 16
Tex. Govt Code 311.023 (West 2014)..............................................................6, 14
SECONDARY SOURCES
PAGE(S)
Act of May 27, 2009, 81st Leg., R.S., Ch. 978, 12(a),
2009 Tex. Gen. Laws 2571, 2574 ............................................................................ 16
S. Research Ctr., Bill Analysis, Tex. H.B. 3666, 81st Leg., R.S. (2009) ................ 13
viii

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 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.3 Nikki answered and filed a
counterclaim to declare her marriage valid.4
PROCEEDINGS IN THE TRIAL COURT
All parties moved for summary judgment on the issue of the validity of the
marriage.5

1
In this Petition for Review, Petitioners will refer to Respondent Nikki Araguz as Respondent
or Nikki and will use the personal pronouns she and her. In using these terms 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 are using
these terms for the sake of grammatical simplicity and because that is how Nikki desires to be
designated.
2
1CR 10.
1CR 36.
1CR 300.
1CR 146, 259, 267.

ix
THE 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
severed the remaining issues in the case relating to the administration of the estate
into a separate cause.6
PROCEEDINGS IN THE COURT OF APPEALS
Nikki appealed the judgment to the Thirteenth Court of Appeals of Corpus
Christi in Edinburg.7 Nikki was the appellant, and Ms. Longoria and Ms. Delgado
were the appellees.8
THE 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.9 Chief Justice Valdez authored the opinion for

6
7CR 1869-70. A copy of the trial courts order granting summary judgment is included in the
Appendix under Tab 1.
7
See In re Estate of Araguz, No. 13-11-00490-CV, 2014 WL 576085, *1 (Tex. App.Corpus

Christi Feb. 13, 2014). 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.
8
See 2014 WL 576085 at *1.
See id.
x
the panel.10 The opinion can be found at In re Estate of Araguz, No. 13-11-00490CV, 2014 WL 576085, *1 (Tex. App.Corpus Christi Feb. 13, 2014).
The court of appeals rendered its judgment and issued its opinion on
February 13, 2014, reversing the trial 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 under the 2009 amendment to 2.005 of the Texas
Family Code, which added an original or certified copy of a court order relating to
the applicants name change or sex change as an acceptable form of proof to
establish the identify and age of an applicant for marriage in Texas; (2) that the
2009 amendments to 2.005 legislatively overruled Littleton v. Prange, 9 S.W.3d
223, 231 (Tex. App.San Antonio 1999, pet. denied), which held that Texas law
does not recognize that a person may change his or her sex; and (3) that there is a
genuine issue of material fact regarding Nikkis sex and whether the marriage was
a same sex marriage and, therefore, (4) Nikki is not entitled to rendition of
judgment.11

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

xi
Nikki moved for rehearing, asking the court to render judgment in her favor
or, in the alternative, to correct certain statements in the opinion that she believes
are incorrect.12 The court denied Nikkis motion for rehearing on April 15, 2014.13

12
A copy of the court of appeals notice that it denied Appellants motion for rehearing is
included in the Appendix under Tab 4.
13
See Notice Denying Motion for Rehearing, Tab 4.

xii
STATEMENT OF JURISDICTION
The Supreme Court has jurisdiction over this petition because it involves the
construction of a statute necessary to the determination of this case.14 The 2009
amendments to 2.005 list, among other things, an original or certified copy of a
court order relating to the applicants name change or sex change as a form by
which an individual applying for a marriage license may establish proof of
identity.15 The court held that the amendment establishes that a person who has
had a sex change is eligible to marry a person of the opposite sex [following the
sex change] such that the marriage is between one man and one woman, as set
forth in the Texas Constitution and, thus, is not banned as same sex marriage
under 6.204(b) of the Texas Family Code.16 But the term identity as it is used
in 2.005 does not mean sexual identity, and the amendment cannot reasonably
be construed to implicitly re-define the terms as man, woman, and same sex
as they are used in the Texas constitution and previously enacted statutes. Further,
the court retroactively applied the 2009 amendments to validate a void 2008
marriage even though 2.005 specifically states that the amendments apply only to
marriages with licenses issued on or after September 1, 2009.

14
See TEX. GOVT CODE 22.001(a)(3) (West 2014).
15
TEX. FAM. CODE 2.005(a),(b)(8) (West 2014). A copy of 2.005 is included in the Appendix
under Tab 5.
16
See In re Estate of Araguz, 2014 WL 576085 at *9; See TEX. CONST. art. I, 32; TEX. FAM.
CODE 6.204(b) (West 2008). Copies of 32 and 6.204 are included in the Appendix under
Tabs 6 and 7, respectively.
xiii

The Supreme Court also has jurisdiction over this appeal because the
decision of the Thirteenth Court of Appeals in this case conflicts with a decision
from the Fourth Court of Appeals in Littleton v. Prange, 9 S.W.3d 223, 231 (Tex.
App.San Antonio 1999, pet. denied).17 Specifically, the Thirteenth Court of
Appeals held that the 2009 amendments to 2.005 of the Family Code recognized
the right of an individual to change his or her sex and, thus, created a right for a
transgender person to marry a person of the same sex as he or she was born.18 That
holding conflicts with the Fourth Court of Appeals holding that an 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.19
Finally, the Supreme Court has jurisdiction over this appeal because the
court of appeals has committed an error of law of such importance to the states
jurisprudence that it should be corrected.20
The court held that the 2009
amendments to 2.005 of the Texas Family Code legislatively overruled Littleton,

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

17
See 22.001(a)(2). See also In re Estate of Araguz, 2014 WL 576085 at *7-10; Littleton, 9
S.W.3d at 231. A copy of Littleton is included in the Appendix under Tab 8.
18
See 2014 WL 576085 at *7-10.
19
See id.; Littleton, 9 S.W.3d at 231.
20
See 22.001(a)(6).
xiv
for a transgender person to marry a person of the same sex as he or she was born.21
In so holding, the court completely overhauled Texass marriage law without
defining what makes an individual male or female.

21
See 2014 WL 576085 at *9.
xv

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.22 In 2005, the people of Texas by a large majority voted to
amend the constitution to provide that marriage consist[s] only of the union of one
man and one woman and to prohibit the recognition of any legal status identical
or similar to marriage.23 Given these pronouncements against same-sex marriage
by the people of Texas and their legislative branch in 2003 and 2005, did the
legislature in 2009 intend the amendment to 2.005(b)(8) of the Family Code to
legislatively overhaul the statutory and constitutional provisions of this 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?

22
TEX. FAM. CODE 2.001 (West 2008); TEX. FAM. CODE 6.204. A copy of 2.001 is included
in the Appendix under Tab 9.
23
TEX. CONST., art I, 32.

xvi
STATEMENT OF FACTS
The opinion of the court of appeals states the nature of the case. It arises
from the death of Thomas Araguz. At the time of his death, Mr. Araguz was in a
purported marriage relationship with Respondent Nikki Araguz who was
biologically a man but claiming to be a woman. Nikki was born in California in
1975 as Justin Graham Purdue with male sex organs, including a penis, testes, and
scrotum, and without any female sex organs, such as a vagina or uterus.24 The
chart below sets out the subsequent events in chronological order and in the
context of relevant legislative and constitutional proclamations of Texas public
policy.
EVENT
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

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

DATE
October 27, 1999
RECORD CITE
September 1, 2003
November 8, 2005
August 19, 2008
2CR 378-80
August 23, 2008
2CR 378
October 7, 2008
4CR 927
EVENT
DATE
RECORD CITE
Amendments to 2.005 go into effect
September 1, 2009
Decedent dies
July 3, 2010
6CR 1757-63
Proceedings Filed in Court Below
July 12, 2010
1CR 10
Nikki Files Petition for Change of Gender
July 13, 2010
2CR 365-67
in California
California court enters Order for Change
July 20, 2010
2CR 369
of Gender and Issuance of New Birth
Certificate
SUMMARY OF THE ARGUMENT
In determining that the 2009 amendments to 2.005 legislatively overruled
Littleton and created a right for a transgendered person to marry a person of the
same sex as he or she was born, the court of appeals incorrectly (1) construed the
term identity in 2.005 to refer to sexual identity and (2) construed the
amendments to implicitly re-define the terms man, woman, and same sex as
they are used in the constitution and previously enacted statutes. Because a person
born male is immutably male, Nikki was male as a matter of law at the time that
she attempted to marry Decedent. Therefore, that marriage was contrary to the
public policy of this state and void as a matter of law.25

25
Tex. Const., art. I, 32 (Marriage in this state shall consist only of the union of one man and
one woman and This state or a political subdivision of this state may not create or recognize
any legal status identical or similar to marriage ); TEX. FAM. CODE 6.204(b) (A marriage
between persons of the same sex or a civil union is contrary to the public policy of this state and
is void in this state.), 2.001 (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, and A license
may not be issued for the marriage of persons of the same sex.).
2

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 this petition for review, reverse the judgment and remand this case to
the court of appeals to consider Nikkis remaining points of error.
ARGUMENT
While it is true that it is the policy of this state to preserve and uphold each
marriage against claims of invalidity, that policy does not apply where there is a
strong reason . . . for holding the marriage void or voidable.26 Because same-sex
marriages are expressly made void by Chapter 6 [of the Family Code], they are
not presumed to be valid.27
I.
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.28 Littleton is

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

26
TEX. FAM. CODE 1.101 (West 2008).
27
Id.; see 6.204.
28
See Littleton, 9 S.W.3d at 224, 230-31.

3
male-to-female transsexual person, and Jonathan Littleton, a man.29 As Nikki

claims in this case, Christie claimed that she considered herself to be a female from
a very early age.30 She obtained a legal name change when she was twenty-five,
and at the age of twenty-seven, before she was married, had sex reassignment
surgery.31 Nevertheless, the court held that Christis marriage to Jonathan was
void because Christie was male.32
In reaching this conclusion, the court noted that a post-operative female
transsexual is still biologically a male and that she inhabits a male body in all
aspects other than what physicians have supplied.33 Based on the undisputed fact
that Christie was a male at birth, the court concluded as a matter of law that she
was still a male and could not marry another male.34 This conclusion applies with
even greater force to Nikki Araguz, who attempted to marry Decedent before her
sex reassignment surgery had been performed.35 Therefore, at birth and at the time
of the marriage ceremony, Nikki was in all physical respects a male. Nikkis
summary judgment evidence describing her condition and her attempts to live as a

29
Id. at 224.
30
Id.
31
Id. at 224-25.
32
Id. at 231.
33
Id. at 231-32.
34
Id. at 231; see also id. at 232 (Angelini, J., concurring (concluding same)).
35
See 2CR 378; 4CR 927.

4
female is of no legal significance. Nikki was born as a male and is therefore

immutably a male under Texas law. Accordingly, under the rule established by
Littleton, Nikki was a male when she attempted to marry Decedent in 2008.
II.
THE 2009 AMENDMENTS TO 2.005 DID NOT OVERRULE LITTLETON

The court of appeals held that the legislatures 2009 amendments to 2.005
created a right for a transgendered person to marry a person of the same sex as he
or she was born.36 But that holding is wrong because the term identity as it is
used in 2.005 does not mean sexual identity and because 2.005 has never
purported to define marriage in Texas.
A.
Courts are Required to Adhere to Rules of Statutory and

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

to the legislatures intent.37 In enacting a statute, courts are to presume that the
legislature complied with the Texas constitution and intended the entire statute to
be effective and to provide a result feasible of execution.38 Words and phrases
shall be read in context and construed according to the rules of grammar and
common usage.39 Courts should glean the statutes intent primarily from the plain

36
Estate of Araguz, 2014 WL 576085 at *9.
37
City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010).
38
Tex. Govt Code 311.021 (West 2014).
39
Tex. Govt Code 311.011 (West 2014).

5
meaning of the words in the statute,40 and, regardless of whether or not the statute
is considered ambiguous on its face, courts should also consider the object sought
to be obtained by the statute, the circumstances under which it was enacted, the
statutes legislative history, and the consequences of a particular construction of
the statute.41 Statutes are presumed to be enacted with knowledge of and in
reference to existing law, and when a legislative enactment covers a subject
addressed by an existing law, the two provisions shall be harmonized whenever
possible to give effect to both.42
B.
The Courts Construction Disregards Statutory Historical

Context
When the amendments to 2.005 are considered in light of the law in effect
at the time and in the historical context of Texas laws relating to the definition of
marriage, it is very clear that those amendments were not intended to expand the
definition of marriage in Texas to include unions between a man claiming
transgender status and another man. This historical context dates back to the 1997
enactment of 2.001 of the Family Code which allows marriages to occur between
a man and a woman and prohibits the issuance of a marriage license for the

40
Id.; Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493-94 (Tex. 2001).
41
TEX. GOVT CODE 311.023 (West 2014).
42
Acker v. Texas Water Commn, 790 S.W.2d 299, 301 (Tex. 1990).
6
marriage of persons of the same sex.43 Two years later, based on the legislatures
proclamation in 2.001, the San Antonio court of appeals decided Littleton.44
Four years after Littleton, in 2003, the legislature enacted 6.204 of the
Family Code, (1) defining the phrase civil union as any relationship status that
is intended as an alternative to marriage or applies primarily to cohabitating
persons and grants the parties legal rights analogous to spouses in a marriage; and
(2) declaring same-sex marriages and civil unions contrary to the public policy of
this state and [ ] void in this state.45 With the passage of 6.204, the legislature
made clear that it intended to confine marriage in Texas to opposite-sex couples
and to exclude from the Texas definition of marriage any other relationship which
did not meet the statutory definition.
Then in 2005, the people of Texas by a large majority voted to amend the
constitution to provide that Marriage in this state shall consist only of the union of
one man and one woman and prohibit the recognition of any legal status
identical or similar to marriage.46 Thus, the 2009 amendments were enacted
following the people of Texas and its legislature by both constitutional amendment
and statutory enactment defining marriage as a relationship which can occur only

43
TEX. FAM. CODE 2.001.
44
Littleton, 9 S.W.3d at 230-231.
45
46
TEX. CONST., art. I, 32.

7
between one man and one woman and likewise prohibiting the recognition of
same-sex marriage or any marriage-like relationship that did not meet the
constitutional and statutory definition of marriage.
The holding of the court of appeals completely disregards this historical
context and the circumstances under which the 2009 amendments were enacted. In
justifying its holding, the court stated, it is possible that the legal landscape has
changed since [Littleton], and then, based on its own interpretation of the
amendment, the court concluded that in fact, it has [changed].47 But the courts
construction of the amendment marks the first change in direction of the legal
landscape in Texas marriage law. The amendments to Section 2.005 do not discuss
a change in the legal landscape of Texas marriage law.
They merely list
documents that may be used to establish identity.48 Until the court handed down
its opinion interpreting 2.005 as changing the legal landscape, the law in Texas
very clearly and consistently provided that gender was immutably determined at
birth and prohibited transgendered marriages.
Therefore, the courts holding
ultimately forms the basis for its opinion and is thus entirely circular.

47
Estate of Araguz, 2014 WL 576085 at *8.
48

8
C.
The Term Identity Does Not Refer to Sexual Identity
In holding that the amendment providing that a court order relating to the
applicants sex change may be used to establish identity and age, the court of
appeals necessarily construed the term identity to refer to sexual identity.49
But the rules of statutory construction, when properly applied, reveal that is not the
case.
Both before and after the 2009 amendments were enacted, 2.005 listed the
types of proof of identity that applicants were required to submit to obtain a
marriage license. Prior to 2009, applicants were required to submit a certified
copy of the applicants birth certificate orsome certificate, license, or document
issued by this state or another state, the United States or a foreign government.50
The 2009 amendments added specificity, listing nineteen different documents
which applicants could use to prove their identity to the clerk.51 Among those
permitted documents, 2.005(b)(8) lists a court order relating to the applicants
name change or sex change.52 While at first glance the words sex change may
imply that identity refers to sexual identity, an analysis of the various
documents permitted to establish identity and age reveal that is not the case, as

49
See id.; 2014 WL 576085 at *9.
50
2.005 (West 2008).
51
See 2.005 (West 2014).
52
Id. at 2.005(b)(8).
9
many of those documents do not designate whether the applicant is male or

female.53 Reading the statute in context and applying its plain language, the term
identity clearly means that the person applying for the license is the person
whose name will be on the license. In fact, a survey of Texas case law involving
the litigation of identity in connection with the validity of a marriage or a marriage
license reveals a litany of bigamy prosecutions aimed at determining whether the
person named on the marriage license was the person involved in the marriage.54
From its plain language, it is readily apparent that the legislature did not
intend for 2.005 to govern the issuance of marriage licenses and thus to enforce
the prohibition against same sex marriages.
Rather, it is obvious that the
legislature intended that 2.004 of the Family Code govern that task. Section
2.004 provides that each application form must contain . . . the womans maiden
surname and a printed oath under which the applicant solemnly swears that the
information in the application is correct.55 And under 2.004(c), [a]n applicant

53
See 2.005(b)(5,9,11,12,13,14) (listing a military identification card, a military 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).
54
See Johnson v. State, 258 S.W.2d 829 (Tex. Crim. App. 1953); Bell v. State, 184 S.W.2d 635
(Tex. Crim. App. 1944); Parker v. State, 53 S.W.2d 473 (Tex. Crim. App. 1932); Jones v. State,
17 S.W.2d 1053 (Tex. Crim App. 1928); Rogers v. State, 204 S.W. 222 (Tex. Crim. App. 1918).
55
TEX. FAM. CODE 2.004(b)(2),(8) (West 2004) (emphasis added). A copy of 2.004 is
included in the Appendix under Tab 10.
10

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

Because the statute says womans surname and not womens surname it
requires that one applicant be male and the other be female. The statute requires
that the applicant tell the truth under oath and thus enforces the legislatures
mandate.
D.
Section 2.005 has Never Purported to Define Marriage
Even if the Court determines that the term identity as it is used in 2.005
does refer to sexual identity, the Court should still reverse the judgment of the
court of appeals and affirm Littleton because 2.005 has never purported to define
marriage. The court of appeals attempt to redefine the terms man, woman,
and same sex as they are used in the constitution and previously enacted statutes
rests on five very shaky assumptions.
First, the courts holding assumes that 2.005 requires the clerk to accept
any and all of the listed documents. But 2.005 only provides that an applicant use
the listed documents to prove identity.57 It does not require the clerk to accept any
of the listed forms as proof of identity, and it does not require that the clerk accept
a court order relating to a sex change as establishing that a person born as a man is
a woman for the purpose of marriage. Important to note is that the clerks right to

56
Id. 2.004(c).
57
See 2.005.
11
refuse such marriage license on the basis of such proof does not render the sex
change language meaningless because an order relating to a sex change could be
submitted by an applicant to prove his original sex rather than his changed sex.
Interestingly, Nikki included a very analogous example in the 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
order, and a drivers license (showing him to be female) in support of an attempt to
marry a woman.58
Second, the courts holding assumes that by amending 2.005, the
legislature intended to change the constitution, significantly broadening its
definition of woman as it was used in Article I, 32. The courts broadened
definition contravenes the legislatures mandate that courts are required, when
construing statutes, to assume that the legislature intended to comply with the
Texas constitution59 and this Courts teaching that courts construing the
constitution should rely heavily on its literal text and must give effect to its plain
language.60
Third, the courts holding assumes that the legislature, by amending 2.005,
intended to substantially redefine the marriage relationship and the terms man,

58
6CR 1591-92.
59
TEX. GOVT CODE 311.021.
60
Stringer v. Cendant Mortg. Corp., 23 S.W.3d 353, 355 (Tex. 2000).

12
woman, and same sex, and effectuate these changes without altering one word
of any of the Texas statutes or constitutional provisions defining them. It is
inconceivable that the legislature would completely overhaul the states marriage
law without expressly altering those statutes. The fact that the legislature did not
expressly alter the marriage statutes shows the legislature in 2009 did not intend to
change the marriage definition. Rather, it only intended to provide clarity to
county clerks as to what documents they could accept as proof of identity.
This intent is verified by reviewing the legislative history contained in HB
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.61 The Bill Analysis says nothing
about reversing Littleton, allowing transgender marriages, or an intent to change
the definition of man or woman as those terms are used in the Family Code
and the constitution.
On all these matters, the legislative text and history is
completely silent, and that silence contravenes the court of appeals holding that
the amendments represented a sea-change in Texas marriage law.
Fourth, the courts holding assumes that the legislature intended to legalize
transgender marriages without providing any guidance for courts to follow in

61
S. Research Ctr., Bill Analysis, Tex. H.B. 3666, 81st Leg., R.S. (2009), a copy of which is
included in the Appendix as Tab 11.
13

determining when a persons gender actually changes and whether a marriagelicense applicant is male or female when the application is made. The amendments
provide no guidance as to whether compliance with the WPATH standards of care
is sufficient to legally change an individuals sex, whether sex reassignment
surgery is required, or whether any other facts are determinative or properly
considered in judicially determining a persons sex.
In light of the express
constitutional and statutory ban on both same sex marriages and civil unions, it is
inconceivable that the legislature intended to legalize transgender marriages but
then forgot to explain the difference between transgender marriages and
constitutionally forbidden same-sex marriages.62
Finally, the courts holding assumes that the legislature intended to replace
the constitutionally-mandated, clear definition of marriage with a definition that
depends wholly on unspecified facts unique to each claimed marriage.63
For
example, Nikki in this case claims she is a woman. She supports that claim with
medical records and affidavit testimony from her expert, who describes what Nikki
said about how she felt as a 4 to 5 year old child.64 Nikkis expert explains that
Nikki has lived as a woman since her teenage years, and on the basis of Nikkis

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

14
experience, concludes that Nikki has been a female since the late 1990s.65 It is
undisputed that Nikki did not have sex reassignment surgery until after she
obtained a marriage license with Decedent, but in the view of Nikkis expert, that
surgery was not a definitive point in her transfer from male to female.66 The court
of appeals holding directly contravenes the legislatures mandate that when
construing a statute, courts are to presume that the legislature intended a result
feasible of execution in enacting the statute.67
Under Littleton, the validity of any persons marriage is dependent on their
marriage to a person of the opposite sex as determined at their birth and evidenced
by their birth certificate. Allowing a persons sex for marriage purpose to be
determined by their life-long feelings rather than their sex at birth will render
meaningless the Texas constitutional and statutory provisions that define marriage
as between one man and one woman and which further prohibit and declare against
public policy same-sex marriages, civil unions, or the recognition of any legal
status identical or similar to marriage.68 Instead of enforcing these important
constitutional and statutory provisions, the court riddles them with exceptions so as
to allow same sex couples to marry based on an unverifiable claim by one

65
In re Estate of Araguz, 2014 WL 576085 at*11; 7CR 1857.
66
2014 WL 576085 at*10-11; 7CR 1858.
67
311.021(4).
68
TEX. CONST., art. I, 32; TEX. FAM. CODE 2.001, 6.204.

15
participant that he has always felt more like a member of the opposite sex than his
own. For these reasons, the Court should grant this petition for review and reverse
the court of appeals judgment.
III.
THE 2009 AMENDMENTS CANNOT BE RETROACTIVELY APPLIED

VALIDATE NIKKIS VOID 2008 MARRIAGE
TO
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.69
Statutes in Texas are presumed to act only prospectively.70
When the
legislature gives express instruction for a statute not to apply retroactively, courts

69
Act of May 27, 2009, 81st Leg., R.S., Ch. 978, 12(a), 2009 Tex. Gen. Laws 2571, 2574, a
copy of which is included in the Appendix as Tab 12.
70
TEX. GOVT CODE 311.022 (West 2014).

16
must follow those instructions.71 In this case, the legislature directed that the
amendments should apply only to applications for marriage submitted on or after
September 1, 2009, and that the prior law remained in effect for applications
submitted before that date. Nikki applied for her marriage license in 2008.72 By
holding that a fact issue exists as to Nikkis sex and remanding the case to the trial
court, the court necessarily found that 2009 amendments could retroactively
validate Nikkis void 2008 marriage. The courts holding directly contravenes the
legislatures mandate.73
Accordingly, the Court should grant this petition for
review and reverse the court of appeals judgment.

CONCLUSION AND PRAYER
There is no genuine issue of material fact that Nikki was born male and had
male sex organs when her 2008 marriage to Decedent was performed.74 Because
the 2009 amendments to 2.005 did not legislatively overrule Littleton and create a
right for a transgendered person to marry a person of the same sex as he or she was
born or, in the alternative, because the 2009 amendments cannot retroactively
validate Nikkis void 2008 marriage, Petitioners pray that this Court grant this
petition for review, set this case for oral argument, reverse the judgment, and

71
Brady v. State, 906 S.W.2d 268, 270 (Tex. App.Amarillo 1995, pet. refd.).
72
2CR 378-80.
73
Estate of Araguz, 2014 WL 576085 at *12-13.
74
Id. at *1.
17
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
Telephone: (713) 659-5200
Fax: (713) 659-2204
Frank E. Mann
Telephone: 713/524-6868
Facsimile: 713/524-1931
Edward C. Burwell
Telephone: 713/665-5761
Facsimile: 713/524-1931
ATTORNEYS FOR APPELLEE,

HEATHER DELGADO IN HER
18

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
19

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing has been
served via certified mail, return receipt requested on this 27th day of June, 2014,
on the following:

Counsel for Respondent, Nikki 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
20

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
21

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 4,038 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: June 27, 2014
22

No. 14-0404

Petitioners,
v.
NIKKI ARAGUZ,
Respondent.
APPENDIX FILED BY PETITIONERS

W. Mark Lanier
Kevin P. Parker
Natalie V. Armour
Lanier Law Firm
6810 FM 1960 West
Telephone: 713/659-5200
Facsimile: 713/659-2204
Edward C. Burwell
Telephone: 713/665-5761
Facsimile: 713/524-1931
Chad P. Ellis
302 Jackson Street
Telephone: 832/595/1242
Facsimile: 832/595/1906
chad@ei-law.com
Frank E. Mann
Telephone: 713/524-6868
Facsimile: 713/524-1931
June 27, 2014
No. 14-0404

Petitioners,
v.
NIKKI ARAGUZ,
Respondent.
APPENDIX FILED BY PETITIONERS
TABLE OF CONTENTS
Tab 1 -
Trial Courts Order Granting Summary Judgment (No. 44,575; In the

Estate of Thomas Trevino Araguz, III, Deceased, In the 329th District
Court of Wharton County, Texas), dated May 26, 2011
Tab 2 -
Court of Appeals Opinion (In re Estate of Araguz, No. 13-11-00490CV, 2014 WL 576085, *1 (Tex. App.Corpus Christi Feb. 13, 2014)
Tab 3 -
Court of Appeals Judgment (In re Estate of Araguz, No. 13-11-00490CV, 2014 WL 576085, *1 (Tex. App.Corpus Christi Feb. 13, 2014)
Tab 4 -
Court of Appeals Notice Denying Appellants Motion for Rehearing,

dated April 15, 2014
Tab 5 -
TEX. FAM. CODE 2.005
Tab 6 -
TEX. CONST. art. I, 32

2
Tab 7 -
Tab 8 -
Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio 1999,

pet. denied)
Tab 9 -
Tab 10 -
Tab 11 -
S. Research Ctr., Bill Analysis, Tex. H.B. 3666, 81st Leg., R.S.
(2009)
Tab 12 -
Act of May 27, 2009, 81st Leg., R.S., Ch. 978, 12(a), 2009 Tex.
Gen. Laws 2571, 2574
TAB
Trial Courts Order Granting Summary Judgment
(No. 44,575; In the Estate of Thomas Trevino Araguz,
III, Deceased, In the 329th District Court of Wharton
County, Texas), dated May 26, 2011
LI
Li
I
I
I
I
I
I
I
I
I
I
I
LI
I
1
I
U
E
FILED
at_1:55
No. 44,575
IN THE ESTATE OF
THOMAS TREVINO ARAGUZ, III,
DECEASED
oclock.
M 2. $ 2011
IN THE 329" DlSTF

iw
OF
WHARTON COUNTY, TEXAS
R ) TEXAS
ORDER GRANTING ADMINISTRATORS AND INTERVENORS

MOTIONS FOR SUMMARY JUDGMENT
AND SEVERANCE OF REMAING ISSUES INTO SEPARATE CAUSE NUMBER
The Court, having considered all of the parties various motions for summary
judgment, all of the parties responses to each others motions and replies thereto, and the
summary judgment evidence in the record, finds that Administrators and Intervenors
motions for summary judgment should be GRANTED.
It is therefore, ORDERED that Administrators and Intervenors motions for summary
judgment are hereby GRANTED, and it is DECLARED that Decedent, Thomas Trevino
Araguz Ill was not married on July 4, 2010, the date of his death, and it is FURTHER
DECLARED that any purported marriage between the Decedent and Respondent Nikki
Araguz prior to Decedents death was void as a matter of law.
Respondents motions for summary judgment are hereby DENiED. All of
Respondents counterclaims, affirmative defenses, constitutional claims and all other relief
requested by Respondent in this case (except for those limited matters already granted in
previous orders) are hereby DENIED. This ORDER completely disposes of all pending
claims and issues concerning Respondent Nikki Araguz in this case. This is a final and
appealable order as to Respondent Nikki Araguz.
All other pending issues and proceedings in this cause by and among the remaining
parties, including the administration of the estate of Decedent, are hereby SEVERED into a
Araguz
Order on Petitioners Motion for Summary Judgment
Pagel
1869
I
El
I
I
I
I
I
I
I
I
I
I
I
[1
I
I
I
I
L
separate Cause No. 44,575-A, so that no unresolved claim or controversy remains in this
Cause No. 44,575
SIGNED on the
2-4 day of
2011.
/y,41 Z1
PRESIDIN(1JUDGE
Are guz
Order on Petitioners Motion for Summary Judgment
Page2
1 870
TAB 2
Court of Appeals Opinion (In re Estate of Araguz, No.
13-11-00490-CV, 2014 WL 576085, *1 (Tex. App.
Corpus Christi Feb. 13, 2014)
NUMBER 13-11-00490-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE ESTATE OF THOMAS TREVINO ARAGUZ III, DECEASED
On appeal from the 329th District Court

of Wharton County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Opinion by Chief Justice Valdez
After volunteer firefighter Thomas Trevino Araguz III died in the line of duty, his
mother, Simona Longoria, filed this suit to declare his marriage to Nikki Araguz void as a
matter of law on the grounds that it constituted a same sex marriage. 1 See TEX. CONST.
art. I, 32(a) (Marriage in this state shall consist only of the union of one man and one
woman.); TEX. FAM. CODE ANN. 6.204(b) (West 2006) (A marriage between persons of
Specifically, Simona filed an Application for Letters of Administration, Application for

Determination of Heirship, Petition to Declare Marriage Void, Application for Temporary Restraining Order,
and Motion to Transfer Venue to District Court.
the same sex or a civil union is contrary to the public policy of this state and is void in this
state.). Subsequently, Thomass ex-wife, Heather Delgado, intervened as next friend on
behalf of their two minor children also contending that Thomass marriage to Nikki was
void as a matter of law because it constituted a same sex marriage. See TEX. CONST. art.
I, 32(a); TEX. FAM. CODE ANN. 6.204(b).
Nikki answered the suit and filed a
counterclaim to declare the marriage valid. See TEX. CIV. PRAC. & REM. CODE ANN.
37.003.004 (West 2008). The parties filed opposing motions for summary judgment.
See TEX. R. CIV. P. 166a(c), (i). The trial court granted Simona and Heathers motions
and denied Nikkis motion. The court then entered a final judgment in favor of Simona
and Heather declaring the marriage void as a matter of law. See TEX. FAM. CODE ANN.
6.204(b). For the reasons set forth below, we conclude that the trial court erred in granting
the summary judgment because there is a genuine issue of material fact regarding Nikkis
sex and whether the marriage was a same sex marriage. See TEX. R. CIV. P. 166a(c), (i).
Accordingly, we reverse the trial courts judgment and remand for further proceedings
consistent with this opinion. See TEX. R. APP. P. 43.2(b).
I. BACKGROUND2
Nikki was born in California in 1975 with male sex organs, including a penis, testes,
and scrotum, and without any female sex organs, such as a vagina or uterus. The name
Justin Graham Purdue appeared on Nikkis original birth certificate with the designation
The facts stated in this background section are not in dispute. See TEX. R. APP. P. 38.1(g) (In a
civil case, the court will accept as true the facts stated unless another party contradicts them.). We also
note that although we refer to Nikki using feminine terms throughout this opinion, as Nikki and Heather have
in their appellate briefs, we do so strictly for ease of reference and to be courteous and respectful in stating
the basic reasons for our decision. See TEX. R. APP. P. 47.1; TEX. CODE OF JUDICIAL CONDUCT, Cannon
3B(4) (A judge shall be patient, dignified and courteous to litigants . . . .); see Littleton v. Prange, 9 S.W.3d
223, 224 (Tex. App.San Antonio 1999, pet. denied) (referring to appellant in feminine terms even though
her sex was disputed and noting that such references were out of respect for the litigant and have no
legal implications).
2
that Nikki was male. Nevertheless, since early childhood, Nikki was largely taken by
others as a girl. She always reacted favorably to this. By the age of four or five, she
expressed feelings of being female. Nikki began wearing female clothes as an adolescent
and has continued to do so for essentially all of her life. At the age of eighteen, Nikkis
physician diagnosed her with gender dysphoria (also known as gender identity
disorder), a medical condition whereby an individual has longstanding and persistent
feelings of being a member of the opposite sex.
Nikkis physician started her on
feminizing hormone therapy, and she continued living as a female.

At the age of twenty-one, Nikki filed a petition in the 245th District Court of Harris
County, Texas to have her name changed. In the petition, Nikki states the following: I,
Justin Purdue, am a woman with male anatomy, working toward a sex change. I have
been living and working as a woman for over one year and seek to make my new name
legal and permanent. On February 9, 1996, the district court issued an order granting a
name change from Justin Graham Purdue to Nikki Paige Purdue. Subsequently, on
April 27, 1996, Nikki filed an application in California to amend her birth certificate to
reflect the name change. Thereafter, on August 21, 1996, the State of California issued
an amended birth certificate reflecting the name change.
After changing her name, Nikki obtained a drivers license from Kansas with the
designation that she is female. She then used the Kansas drivers license to obtain a
Texas drivers license with the designation that she is female.
On August 19, 2008, Nikki presented her Texas drivers license to the County Clerk
of Wharton County, Texas to obtain a marriage license. The marriage license indicates
that Nikki is a woman. On August 23, 2008, Thomas and Nikki were married in a
ceremonial wedding in Wharton County. At the time of the wedding, Nikki had male sex
organs, but she was living as a woman. After the wedding, Thomas and Nikki cohabitated
as husband and wife until the time of Thomass death in 2010.
In October of 2008, Nikki underwent genital reassignment or neocolporrhaphy
surgery in which her testes were removed and her penis and scrotum were surgically
altered to resemble and function as a labia, clitoris, and vagina. The procedure was
performed in Texas by Dr. Marci Bowers, a Texas licensed physician. The parties dispute
whether Thomas was aware of Nikkis operation. On April 28, 2010, just two months
before his death, Thomas gave a deposition in a family court proceeding involving the
custody of his two sons in which he testified that he did not know that Nikki had undergone
genital reassignment surgery. Thomas testified that he did not know that his wife was
formerly male or that she had any type of gender surgery. According to Thomass
testimony, Nikki represented herself as female prior to their marriage. Nikki maintains
that before Thomass deposition, she and Thomas agreed to take the position that she
was female from birth.
According to Nikki, Thomas was fully aware of the genital
reassignment surgery.
Thomas died on July 3, 2010. On July 15, 2010, Nikki filed a petition in the superior
court of San Francisco County, California requesting the issuance of a new birth
certificate reflecting the change of her sex from male to female. On July 20, 2010, the
California court entered an order changing Nikkis sex from male to female. Thereafter,
on August 30, 2010, the State of California issued a birth certificate stating that Nikki is
female.
II. PROCEDURAL HISTORY

As set forth above, Thomass mother, Simona, initiated this suit on July 12, 2010
seeking to have Thomass marriage to Nikki declared void as a same sex marriage. See
TEX. FAM. CODE ANN. 6.204(b). Thomass ex-wife, Heather, subsequently intervened
as next friend on behalf of their two minor children also seeking to have the marriage
declared void. See id. Nikki answered the suit and filed a counterclaim to declare the
marriage valid. The parties then filed opposing motions for summary judgment as follows.
A. Heathers Motion for Summary Judgment
On October 26, 2010, Heather filed a traditional motion for summary judgment,
with attached evidence,3 asserting the following grounds for summary judgment:
(1) The marriage was void pursuant to Article I, Section 32 of the Texas
Constitution, which provides that marriage in this state shall consist only
of the union of one man and one woman. TEX. CONST. art. I, 32(a).
(2) The marriage was void pursuant to Section 6.204(b) of the Texas Family
Code, which provides that a marriage between persons of the same

sex is . . . contrary to the public policy of this state and is void as a matter
of law. TEX. FAM. CODE ANN. 6.204(b).
(3) As a matter of law, no informal marriage could have existed between
Thomas and Nikki because Section 2.401 of the Texas Family Code
provides for informal marriage only between a man and a woman, as
The evidence attached to Heathers motion for summary judgment included the following: (1)
Nikkis original birth certificate stating that Nikki was born male on June 4, 1975 in Carmel, California and
named Justin Graham Purdue; (2) an application for a name change completed by Justin Graham
Purdue, identifying the applicants sex as M or male and stating as the cause for the name change: I,
Justin Purdue, am a woman with male anatomy, working toward a sex change. I have been living and
working as a woman for over one year and seek to make my new name legal and permanent; (3) an order
of the 245th District Court of Harris County granting the name change as of February 2, 1996; (4) an
application for amendment of birth certificate to reflect the court ordered change of name completed by
Nikki and dated April 27, 1996; and (5) Nikkis answers to requests for admissions in the instant suit,
admitting the following: (a) Nikki was born Justin Graham Purdue; (b) the birth certificate of Justin Graham
Purdue lists his sex as male; (c) Justin Graham Purdue was born with a penis; (d) Justin Graham Purdue
was born with testes; (e) Justin Graham Purdue was born without a vagina; (f) Justin Graham Purdue was
born without a uterus; (g) Nikki had a penis on the day of the issuance of the marriage license for Nikki and
Thomas; (h) Nikki had testes on the day of the issuance of the marriage license for Nikki and Thomas; and
(i) Nikki had genital reassignment surgery in October of 2008.
3
decided by the San Antonio Court of Appeals in Littleton v. Prange, 9

S.W.3d 223, 231 (Tex. App.San Antonio 1999, pet. denied). See TEX.
FAM. CODE ANN. 2.401 (West 2006).
See TEX. R. CIV. P. 166a(c).
B. Nikkis Motion for Summary Judgment
On April 21, 2011, Nikki filed a no evidence motion for summary judgment
asserting that she was entitled to judgment as a matter of law because Heather and
Simona could produce no evidence that Thomas and Nikki did not have a valid ceremonial
marriage or, alternatively, a valid informal marriage. See TEX. R. CIV. P. 166a(i).4
C. Heathers Response to Nikkis Motion
On May 13, 2011, Heather filed her response to Nikkis motion for summary
judgment with evidence attached.5 In her response, Heather argued that summary
judgment was not proper because of the following:
(1) It is undisputed that as of the date of the statutory marriage between
Thomas . . . and Nikki . . . , the participants in the ceremony were both

men.
(2) No informal marriage could have existed between Thomas and Nikki
after the genital reassignment surgery in 2008 because Nikki . . . took

no steps to legally change her sex from male to female until July 15,
2010, after Thomass death.
(3) No informal marriage could exist because, under Littleton, a persons
We note that on appeal, Nikki asserts that the motion was incorrectly styled as a no evidence
motion [because] . . . in substance the motion was unmistakably a traditional motion. We also note that
there was no evidence attached to the motion or referenced therein. We disagree with Nikkis assertion
that the motion was a traditional motion. See TEX. R. CIV. P. 166a(c). In form and substance, the motion
was a no evidence motion. See TEX. R. CIV. P. 166a(i).
4
The following exhibits were attached to Heathers response: (1) affidavit of Edward C. Burwell;
(2) Nikkis responses to requests for admissions; (3) certificate of live birth of Justin Graham Purdue; (3)
application for name change for Justin Graham Purdue; (4) order granting the application for name change;
(5) Nikkis application for amendment of birth record to reflect the name change; (6) Nikkis memorandum
of points and authorities in support of her petition for a change of gender; (7) Nikkis amended birth
certificate; and (8) a transcript of the California courts proceedings regarding Nikkis request for a legal
change of gender.
5
gender, while subject to physical manipulation for the purpose of

assuming the appearance of an alternate gender, is nonetheless
governed by the gender of the person at birth, as determined by both
anatomical and genetic examinations of the person. See Littleton, 9
S.W.3d at 224.
D. Simonas Response to Nikkis Motion
On April 21, 2011, Simona filed her response to Nikkis motion for summary
judgment with evidence attached.6 In her response, Simona argued that a no evidence
summary judgment was improper because Nikki had the burden of proof to establish the
existence of an informal marriage. See State v. Mireles, 904 S.W.2d 885, 888 (Tex.
App.Corpus Christi 1995, pet. refd) (The burden of proof is on the one seeking to
establish the existence of such a marriage.); but see TEX. FAM. CODE ANN. 1.101 (West
2006) ([E]very marriage entered into in this state is presumed to be valid unless expressly
made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled
as provided by that chapter.).
E. Simonas Motion for Summary Judgment
Also on April 21, 2011, Simona filed a traditional motion for summary judgment,
with attached evidence,7 asserting the following grounds for summary judgment:
6 The evidence attached to Simonas response was the same evidence attached to her traditional
motion for summary judgment set forth in footnote 7.
The evidence attached to Simonas motion for summary judgment included the following: (1)
certificate of live birth for Justin Graham Purdue dated June 18, 1975; (2) verified pleading of Justin Graham
Purdue in Cause No. 96-07867 in the 245th District Court of Harris County, Texas; (3) order granting name
change in Cause No. 96-07867 in the 245th District Court of Harris County, Texas; (4) amended certificate
of live birth of Justin Graham Purdue dated August 21, 1996; (5) Nikkis memorandum of points and
authorities in support of petition for name change; (6) transcript of hearing on Nikkis petition for change of
gender dated July 20, 2010; (7) Nikkis certificate of live birth; (8) marriage license for Thomas and Nikki;
(8) Houston Independent School District records for Justin Graham Purdue; (9) Cypress-Fairbanks
Independent School District records for Justin Graham Purdue; (10) Aldine Independent School District
records for Justin Graham Purdue; (11) medical records of Justin Graham Purdue aka Nikki Purdue aka
Nikki Araguz aka Nikki Mata from Gulf Coast Medical Center; (12) medical records of Justin Graham
Purdue aka Nikki Purdue aka Nikki Araguz aka Nikki Mata from Dr. Juan Garza, Dr. Esther Perez, Houston
Area Community Services; (13) medical records of Justin Graham Purdue aka Nikki Purdue aka Nikki
7
(1) The purported marriage between Thomas and Nikki was void because
at the time of their marriage, both Thomas and Nikki were males. See
TEX. FAM. CODE ANN. 6.204(b).
(2) No informal marriage could exist between Thomas and Nikki after the
date of Nikkis operation (October 7, 2008) based on Littleton. See

Littleton, 9 S.W.3d at 230.
(3) The purported marriage is void based on judicial estoppel because Nikki
previously claimed that she was a male in a separate court proceeding.

See TEX. R. CIV. P. 166a(c).
F. Nikkis Response to Heather and Simonas Motions
On May 13, 2011, Nikki filed her response to Heather and Simonas motions for
summary judgment with evidence attached.8 In her response, Nikki argued that summary
judgment was improper based on the following grounds:
(1) Littleton was overruled by the 2009 amendment to section 2.005 of the
Texas Family Code, which added an original or certified copy of a court

order relating to the applicants name change or sex change to the list
of acceptable proof of identity and age for purposes of obtaining a
marriage license. See TEX. FAM. CODE ANN. 2.005(b)(8) (West Supp.
2013).
(2) Nikkis gender has always been female, as evidenced by the birth
certificate issued by the State of California on August 30, 2010 stating

that she is female and the corresponding judgment of the California
Araguz aka Nikki Mata from Dr. Marci Bowers; (14) medical records of Justin Graham Purdue aka Nikki
Purdue aka Nikki Araguz aka Nikki Mata from Mount Saint Rafael Hospital; (15) Nikkis responses to
Simonas requests for admissions; (16) Nikkis responses to Simonas written interrogatories; (17) excerpts
of Nikkis deposition in Cause No. 44,575 in the 329th Judicial District Court of Wharton County, Texas;
(18) excerpts of Nikkis deposition in Cause No. 42,122 in the 329th Judicial District Court of Wharton
County, Texas; (19) excerpts of Thomass deposition in Cause No. 42,122 in the 329th Judicial District
Court of Wharton County, Texas; and (20) Thomass certificate of live birth.
The evidence attached to Nikkis response included the following: (1) affidavit of Jim Paulsen;
(2) affidavit of Collier Cole, Ph.D.; (3) Nikkis birth certificate; (4) Texas Family Code Section 2.005; (5)
Nikkis affidavit; (6) Simonas exhibit F; (7) Nikkis jail records stating that she is F or female; (8) Thomas
and Nikkis application for a marriage license; (9) 00112 of Houston Community Service medical records;
(10) excerpts from the California health and safety code; (11) Steve Chelottis affidavit; (12) marriage
license for Thomas and Nikki; (13) Nikkis Texas drivers license; (14) marriage compact of Nikki and
Thomas; (15) California court order for change in Nikkis birth certificate; and (16) Dr. Bowers medical
report.
8
court, to which the court must give full faith and credit by ruling that the
other two birth certificates issued by the State of California in 1975 and
1996, respectively, and her discovery answers are a nullity that cannot
be proper summary judgment evidence. See U.S. CONST. art. IV, 1.9
(3) Nikki was female at the time of the ceremonial marriage because
according to the World Professional Association for Transgender Health

(WPATH) standards of care, she successfully transitioned to the
female sex years before she met Thomas.10
(4) Nikki was female prior to her genital reassignment surgery, as evidenced
by her medical records prepared by Marci Bowers, M.D.11

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

(6) Simona did not plead judicial estoppel.
(7) The Equal Protection clause of the Fourteenth Amendment to the United
States Constitution requires Texas to recognize a post-operative

transgendered individuals current sex. See U.S. CONST. amend. XIV,
1.
G. The Trial Courts Ruling
On May 26, 2011, the trial court granted Heather and Simonas traditional motions
for summary judgment and denied Nikkis no evidence motion for summary judgment.
In connection with this assertion, Nikki relies on section 103430(d) of the California Health and
Safety Code, which states in relevant part that [n]o reference shall be made in the new birth certificate [for
a registrant whose sex has been surgically altered] . . . that it is not the original birth certificate of the
registrant. CAL. HEALH & SAFETY CODE 103430(d).
10
Nikki relies on the affidavit of Collier Cole, Ph.D., a Texas licensed clinical psychologist and full
professor in the University of Texas Medical Branch, Galvestons Department of Psychiatry and Behavioral
Sciences, who states that because Nikki pursued this transition in accordance with the standards of care
of the World Professional Association for Transgender Health, [he] regard[s] her medically and
psychologically as female. He also states that [s]urgery per se is not the definitive point that makes
someone female. According to Dr. Cole, it is completion of real life experiences which documents such
she had this condition at birth, recognized such as she grew up, and took the steps to resolve this issue.
11
Nikki relies on the medical records prepared by Marci Bowers, M.D. in connection with her
genital reassignment surgery or neocolporrhaphy.
The records indicate a preoperative and
postoperative diagnosis of gender dysphoria, male to female transexualism. The records describe Nikki
as a 33 year old, phenotypic female, who has followed the WPATH Standards of Care. Based on a
physical examination, Dr. Bowers described Nikki as a [p]leasant thin woman in no apparent distress.
See TEX. R. CIV. P. 166a(c), (i). The trial courts judgment declares that Thomas was not
married on the date of his death and that any purported marriage between Thomas and
Nikki was void as a matter of law. The remaining issues pertaining to the estate were
severed from this cause, and the trial courts judgment became final and appealable.
III. ISSUES ON APPEAL
On appeal, Nikki argues that the trial court erred in granting summary judgment for
the following reasons:
(1) Thomas and Nikkis marriage was valid because the uncontroverted
summary judgment evidence established that Nikki was female.

(2) Thomas and Nikkis marriage was validated by the 2009 amendments
to the Texas Family Code.

(3) Thomas and Nikkis marriage was valid under the United States and
Texas Constitutions, considering that

a. The California judgment and birth certificate identifying Nikkis sex as
female are entitled to full faith and credit in Texas, and

b. The trial courts judgment invalidating the marriage violates Nikkis
rights under the Texas Equal Rights Amendment and the Fourteenth
Amendment to the United States Constitution.
(4) Thomas and Nikkis marriage would be valid in most jurisdictions.
(5) The Littleton decision is not controlling.
(6) The judgment cannot be affirmed based on judicial estoppel.
(7) Even if Thomas and Nikkis marriage were incorrectly deemed a same
sex marriage, Texas courts cannot constitutionally declare it void on

that basis.
IV. STANDARD OF REVIEW
We review a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (citing Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). We review the evidence presented in
10
the motion and response in the light most favorable to the party against whom the
summary judgment was rendered, crediting evidence favorable to that party if reasonable
jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id.
(citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer &
Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)). The party moving for traditional
summary judgment bears the burden of showing no genuine issue of material fact exists
and it is entitled to judgment as a matter of law. Id. (citing TEX. R. CIV. P. 166a(c); Knott,
128 S.W.3d at 216). When both sides move for summary judgment and the trial court
grants one motion and denies the other, we review the summary judgment evidence
presented by both sides and determine all questions presented. Id. (citing Commrs
Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)). In such a situation, we
render the judgment as the trial court should have rendered. Id. (citing Agan, 940 S.W.2d
at 81).
In this case, the parties filed competing motions for summary judgment in which
each litigant asserted that there were no genuine issues of material fact; however, the
Texas Supreme Court has explained as follows:
When both sides file motions for summary judgment, each litigant in support
of his own motion necessarily takes the position that there is no genuine
issue of fact in the case and that he is entitled to judgment as a matter of
law. While it does not necessarily follow that when both sides file motions
for summary judgment there is no genuine fact issue in the case, it does
indicate that the legal controversy is one which generally turns upon an
interpretation of some rule of law and both sides are prepared to present
their respective contentions with reference thereto.
Ackermann v. Vordenbaum, 403 S.W.2d 362, 36465 (Tex. 1966); see also Coker v.
Coker, 650 S.W.2d 391, 392 (Tex. 1983) (reversing summary judgment and remanding
for trial even though both sides moved for summary judgment and asserted settlement
11
agreement was unambiguous).

V. APPLICABLE LAW
The Texas Constitution defines a marriage as the union of one man and one
woman. See TEX. CONST. art. I, 32(a). Furthermore, the Texas Family Code provides
that [a] marriage between persons of the same sex or a civil union is contrary to the
public policy of this state and is void in this state. TEX. FAM. CODE ANN. 6.204(b).
Consistent with the foregoing, the Texas Family Code states that [a] license may not be
issued for the marriage of persons of the same sex, id. 2.001(b) (West 2006), and it
also provides that an informal marriage may exist only between a man and woman. Id.
2.401(a).
[I]n order to provide stability for those entering into the marriage [relationship] in
good faith . . . it is the policy of this state to preserve and uphold each marriage against
claims of invalidity unless a strong reason exists for holding the marriage void or
voidable. Id. 1.101 (West 2006). The presumption in favor of the validity of a marriage
. . . is one of the strongest, if, indeed, not the strongest, known to law. Tex. Employers
Ins. Assn v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). The presumption is, in itself,
evidence, and may even outweigh positive evidence to the contrary. Id. The strength
of the presumption increases with the lapse of time, acknowledgments by the parties to
the marriage, and the birth of children. Id. Thus, the well-established rule [is] that, when
a marriage has been duly established its legality will be presumed, and the burden of
proving the contrary is upon the one attacking its legality. Id. However, because same
sex marriages are expressly made void by Chapter 6 [of the Texas Family Code], they
are not presumed to be valid. TEX. FAM. CODE ANN. 1.001.
12
VI. DISCUSSION
Over the course of the last decades, States with same-sex prohibitions have
moved toward abolishing them. Lawrence v. Texas, 539 U.S. 558, 570 (2003). Twelve
states and the District of Columbia have decided that same-sex couples should have the
right to marry and so live with pride in themselves and their union and in a status of
equality with all other married persons. United States v. Windsor, 133 S.Ct. 2675, 2689
(2013). In 2013, the United States Supreme Court struck down the provision of the
Defense of Marriage Act (DOMA) that prohibited the federal government from
recognizing same sex marriages. See id. at 2696 (The federal statute is invalid, for no
legitimate purpose overcomes the purpose and effect to disparage and to injure those
whom the State, by its marriage laws, sought to protect in personhood and dignity.) (citing
1 U.S.C. 7). To date, these developments have not affected the law banning same sex
marriages in Texas. See Tex. FAM. CODE ANN. 6.204(b).
The dispute in this case is whether Thomas and Nikki had a same sex marriage in
contravention of Texas law. See TEX. CONST. art. I, 32(a); TEX. FAM. CODE ANN.
6.204(b). The resolution of the dispute will require a determination of Nikkis sex, an issue
on which the parties strongly disagree.12 In granting the summary judgment, the trial court
declared that the marriage was void under Texas law. See TEX. FAM. CODE ANN.
6.204(b). In doing so, it necessarily found that Nikki was a man at the time of Thomass
death such that the marriage was between two men in violation of the Texas Constitution
Heathers brief states that [t]he determination of . . . [Nikkis] gender is the only issue in this
case. Likewise, Simonas brief states that the [t]he validity of the marriage before this Court revolves
around a central issue: Is Nikki Araguz male?
12
13
and the Texas Family Code. See TEX. CONST. art. I, 32(a); TEX. FAM. CODE ANN.
6.204(b). We conclude that this was an error because, on the record before us, the
question of Nikkis sex is a disputed issue of material fact that precludes summary
judgment.
See Tex. Commerce Bank v. Grizzle, 96 S.W.3d 240, 252 (Tex. 2002)
(Summary judgment is appropriate only when there are no disputed issues of material
fact and the moving party is entitled to judgment as a matter of law.).
A. Was Summary Judgment Proper Based on Littleton?
As set forth above, Heather and Simona asserted that summary judgment was
proper based on the Littleton decision by the San Antonio Court of Appeals. See Littleton,
9 S.W.3d at 224. Therefore, we will address whether the trial courts summary judgment
must be upheld based on Littleton.
Littleton involved a final summary judgment rendered against an individual named
Christie Lee Littleton who was born with male sex organs, was later diagnosed with
gender dysphoria, and underwent medical treatment for the condition, which culminated
in a complete sex reassignment such that she became medically a woman. Id. at 224
25. Nevertheless, the trial court ruled that Christies subsequent marriage to Jonathan
Mark Littleton was void as a same sex marriage based on Christies original birth
certificate stating that she was male. Id. at 225.
Christie appealed to the Fourth Court of Appeals in San Antonio, which was unable
to reach a unanimous decision. Two of the three justices who heard the case agreed to
affirm the trial courts judgment on the basis that Christie was not a surviving spouse
under the Texas wrongful death statute. Id. at 23132. Chief Justice Hardberger wrote
an opinion, designated as the majority opinion; however, the other two panel members
14
did not join his opinion, but instead wrote separately. Id. at 22334. Justice Angelini
wrote a concurring opinion, id. at 23132, and Justice Lopez wrote a dissenting opinion.
Id. at 23234.
The central theme of Chief Justice Hardbergers opinion was that Texas law does
not recognize any individuals as having successfully changed their sex. Id. at 230. In
her concurring opinion, Justice Angelini was careful to limit her discussion to the preoperative distinction between Christie Lee Littleton and a typical male.
Id. at 232.
Although Justice Angelini did not purport to express a position on the issue of whether
Texas law recognizes that an individual may change his or her sex, her concurring opinion
focuses on Christies pre-operative condition and fails to address Christies post-operative
condition, thus implying that Texas law does not recognize the possibility of a sex change.
See id. at 23132.
Heather and Simona relied extensively, if not exclusively, on the Littleton decision
as authority for their motions for summary judgment. Yet, even if Littleton was correct at
the time it was decided in 1999, it is possible that the legal landscape has changed since
then. And in fact, it has.
In 2009, the legislature amended the family code to add a court order related to an
applicants sex change as a form of acceptable proof to establish an applicants identity
and age, and thus, eligibility, to obtain a marriage license. See TEX. FAM. CODE ANN.
2.005(b)(8). The parties dispute the meaning of the amendment. Nikki cites it as her
primary authority, while Heather and Simona dismiss it as being, in essence, meaningless
surplusage that did not have the effect of legitimizing any individuals sex change under
Texas law. We disagree with Heather and Simona on this point.
15
A statute is presumed to have been enacted by the legislature with complete

knowledge of the existing law and with reference to it. Acker v. Tex. Water Comm'n, 790
S.W.2d 299, 300 (Tex. 1990). Furthermore, the legislature is never presumed to do a
useless act. Hunter v. Fort Worth Cap. Corp., 620 S.W.2d 547, 551 (Tex. 1981). Courts
will not read statutory language to be pointless if it is reasonably susceptible of another
construction. City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995) (citing
Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987)).
The Texas Code Construction Act provides in relevant part:
In enacting a statute, it is presumed that:
(a) compliance with the constitutions of this state and the United
States is intended;
(b) the entire statute is intended to be effective;
(c) a just and reasonable result is intended;
(d) a result feasible of execution is intended; and
(e) public interest is favored over any private interest.
TEX. GOVT CODE ANN. 311.021 (West 2013) (emphasis added). The Act also provides
as follows:
(a) Words and phrases shall be read in context and construed according to
the rules of grammar and common usage.

(b) Words and phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed

accordingly.
Id. 311.011 (West 2013); Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d
644, 651 (Tex. 2006) (Ordinarily, the truest manifestation of what legislators intended is
what lawmakers enacted, the literal text they voted on.).
16
Read in the context of the constitutional definition of the marriage relationship, the
statutory term same sex marriage means a marriage between two men or a marriage
between two women. See TEX. CONST. art. I, 32(a); TEX. FAM. CODE ANN. 6.204(b).
The term sex change is also used in the marriage statute, but it is not defined. See TEX.
FAM. CODE ANN. 2.005(b)(8). Therefore, we give the term its ordinary meaning.
Owens Corning v. Carter, 997 S.W.2d 560, 57273 (Tex. 1999) (When interpreting a
statute, we begin with the words of the statute itself, giving words their ordinary meaning.)
(citing In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex. 1998)).
Here, the legislature has clearly used the words sex change in a way that
establishes that a person who has had a sex change is eligible to marry a person of the
opposite sex such that the marriage is between one man and one woman, as set forth in
the Texas Constitution. See TEX. CONST. art. I, 32(a). The statute provides in relevant
part as follows:
PROOF OF IDENTITY AND AGE.
(a) The county clerk shall require proof of the identity and age of each
applicant [for a marriage license].

(b) The proof must be established by . . .
(8) an original or certified copy of a court order relating to the

applicants name change or sex change . . . .
See TEX. FAM. CODE ANN. 2.005(a), (b)(8) (emphasis added).
The statute clearly contemplates a court of competent jurisdiction issuing an order
recognizing and essentially certifying an individuals change of sex, much like a name
change. However, unlike a name change, which is governed by Chapter 45 of the Texas
Family Code, there is no corresponding chapter of the family code governing a sex
17
change. See id. 45.001.006 (West 2002). There are no rules or standards set forth
in the statute, and the legislative history is silent with respect to this provision of the
statute. To date, there have been two failed attempts to delete the words sex change
from the statute. See Tex. S.B. 723, 82d Leg., R.S. (proposing to remove the words or
sex change from section 2.005(b)); Tex. H.B. 3098, 82d Leg., R.S. (same). However,
the statutes future is not at issue in this case. Today, we deal with the statute as it was
enacted by Texas lawmakers and signed into law by the governor.
For our purposes, the key words in the statute are identity and sex change. See
TEX. FAM. CODE ANN. 2.005(a), (b)(8). Identity refers to the applicant as an individual,
and the term sex change refers to the applicant changing his or her sex. See id.
Reading the statutory provision as a whole, it states that an applicant who has had a sex
change may use a court order related to that sex change as proof of identity and thus
eligibility to obtain a marriage license. See id. Reading the statute to conform with the
definition of a marriage in the Texas Constitution and the statutory ban on same sex
marriages, which are crystal clear in their meaning and effect, we hold that under Texas
law a valid marriage could exist between Nikki and Thomas only if Nikki was a woman
during their marriage such that there was a marriage between one man and one woman,
as set forth in the Texas Constitution. See TEX. CONST. art. I, 32(a). Otherwise, it was
a same sex marriage banned by Texas law. See TEX. FAM. CODE ANN. 6.204(b).
In sum, we hold that Texas law recognizes that an individual who has had a sex
change is eligible to marry a person of the opposite sex. See id. 2.005(a), (b)(8). For
these reasons, we conclude that the trial courts summary judgment in this case cannot
be affirmed based on Littleton because Littleton has been legislatively overruled. See id.
18
B. Is There a Fact Issue Precluding Summary Judgment?

In their respective motions, Heather and Simona argued that Nikki is a man based
on the uncontroverted summary judgment evidence that she was born with male sex
organs, had male sex organs at the time of her ceremonial marriage to Thomas, and was
originally designated as male on her California birth certificate.
In response, Nikki objected to the evidence of her original birth certificate on the
basis that it is now a legal nullity because the State of California subsequently issued a
new birth certificate stating that she is female, which Nikki produced as summary
judgment evidence. Nikki also presented the expert report of Dr. Cole stating that
sexuality per se is a complex phenomenon which involves a number of underlying
factors.13 According to Dr. Coles affidavit, the factors that should be taken into account
when identifying someone as male or female include chromosomes, hormones, sexual
anatomy, gender identity, sexual orientation, and sexual expression. Dr. Cole notes that
while sexual anatomy at birth is typically the basis for determining an individuals sex,
13 Simona made several objections to the affidavit of Dr. Cole. On March 24, 2011, the trial court
signed an order overruling all the objections. Simona has not appealed that ruling. However, in her
appellate brief, she contends that this Court should exclude the affidavit of Dr. Cole from consideration
because (1) the affidavit fails to state that the facts contained herein are true and (2) the documents
referred to in the affidavit were not attached. In response to the first contention, Nikki requested and
obtained an order from the trial court stating that Nikki out of an abundance of caution, has revised the
timely filed affidavit of Collier Cole, Ph.D. to state that the facts and opinions stated in this affidavit are
within my personal knowledge, are true and correct . . . at the onset of his affidavit. Attached to the order
is Dr. Coles affidavit stating that the facts are true and correct. We also note that both affidavits (the
original and revised) stated that the facts and opinions were within Dr. Coles personal knowledge and both
were subscribed to and sworn before a notary public. Accordingly, we will not exclude the affidavits from
consideration on this basis. See Fed. Fin. Co. v. Delgado, 1 S.W.3d 181, 184 (Tex. App.Corpus Christi
1999, no pet.) ([W]here the affidavit does not specifically recite that the facts set forth there are true, but
does set out that it is based on personal knowledge and is subscribed to and sworn before a notary public,
it is not defective if, when considered in its entirety, its obvious effect is that the affiant is representing that
the facts stated therein are true and correct.). In response to the second contention, we note that the
revised affidavit by Dr. Cole, which the trial court permitted, had the documents referred to in the affidavit
attached to the affidavit. See TEX. R. CIV. P. 166a(f) (Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith.). Accordingly, we will not exclude
the affidavit from consideration in this appeal.
19
this is sometimes done incorrectly.

Dr. Coles affidavit states in relevant part as follows:
With respect to gender dysphoria it is the factor of gender identity which is
the primary focus. By definition gender identity is that personal private
sense of being male or female. Of note, there also exist certain conditions
where individuals may be born with chromosomal anomalies (such as XXY)
or anatomical anomalies (such as intersex condition), in such cases it is
recommended today that physicians not intervene until an individual is of
age and has accepted clearly his or her gender identity. Then, as in the
case of gender dysphoria, surgical and medical procedures can be brought
to bear, to line up that persons body to fit the mind and thereby complete
treatment and resolve the underlying issue.
Many individuals with gender dysphoria will recognize such themselves
early in life and move forward with pursuing treatment intervention on their
own. Others will go to professionals who can assist them in this regard.
With increased awareness of this condition following the Christine
Jorgenson case in 1952 many centers around the country began developing
programs. However, it was not until 1980 that the Harry Benjamin
International Gender Dysphoria Association was created and established
the first Standards of Care, these are now in the sixth edition and can be
found on the website of the World Professional Association for Transgender
Health (WPATH.org). As in other areas of medicine once a condition
becomes more understood protocols or standards are developed to assist
people seeking help for a particular condition as well as to aid treating
professionals working with them. In this case the major technique used to
confirm a diagnosis of gender dysphoria is the real life experience.
Essentially this is a period of time, a minimum of one year, where the
individual begins living in the desired gender role. It is during this period of
time that an individual will undergo hormone therapy to become more male
or female in appearance, will begin living and working in that gender role,
will deal with family and relationships, and then move towards making legal
changes in terms of ones name and gender designation on routine
identification through the courts. After a successful transition an individual
may pursue gender reassignment surgery to redesign the genitals in the
desired fashion. . . .
Many individuals cannot afford surgery and so will continue to live without
such. It should be noted that this does not make them any less gender
dysphoric than someone who does complete surgery. It is completion of
the real life experiences itself which marks the point of change. Afterwards
the individual, either one who has had surgery or one [who] has not, can
pursue legal steps to change the birth certificate in the desired direction.
Overall this method of treatment (i.e., The Standards of Care) is recognized
20
and accepted by contemporary and medical entities (e.g., Texas

Department of Health, the Endocrine Society of the U.S.).
After providing the foregoing explanation of gender dysphoria and the accepted
standards of care for the condition, Dr. Cole offers the following information concerning
Nikki:
With respect to Nikki Araguz . . . I was provided a number of medical records
to review before I interviewed her. These records dated back to the early
1990s and revealed much about her transition process. (A listing of these
documents can be found in the attachment with this statement.) They
suggest that Ms. Araguz had been following the aforementioned steps of
the real life experience, including living as female, undergoing feminizing
hormone therapy, and experiencing satisfying relationships with family and
others. In addition to her records, I had a face-to-face interview with her in
early January. She was born in Carmel, California, and raised primarily in
Houston, Texas. From an early age she recalls longstanding feelings of
being female, an observation often seen as noted above. Indeed, she
reports wearing female clothes essentially all of her life. She often was
perceived by others as female until they were corrected. This would
suggest a strong female sexual identity.
At age 18 her physician started her on feminizing hormone therapy. (No
evidence of chromosome testing was reported.) From there she continued
living as female in the real world. Her family was supportive of her gender
dysphoria, she had both friendly and intimate relationships over the years,
and she was successful in various work endeavors, where she always
presented herself as female. At age 21 she successfully changed her name
legally in the Houston courts. None of the records reviewed indicate any
psychiatric problems related to her gender dysphoria or living as female. In
my professional opinion she had successfully completed the real life
experience in the late 1990s as described in the Standards of Care. She
then began saving money to pursue sex reassignment surgery which was
completed in October 2008. In summary, Ms. Araguz successfully
completed the current medically-accepted steps for treating the condition of
gender dysphoria as described above. She essentially had been living as
a female from an early age. Then, she began seeing a physician to initiate
her feminizing hormone therapy which remains ongoing at this time. Also,
she successfully dealt with family members and others in her life and also
worked in the real world as a female. Eventually she was fortunate to
complete sex reassignment surgery. However, as noted above many such
individuals do not complete surgery for financial reasons. Surgery per se is
not the definitive point that makes someone female. Rather, it is completion
of the real life experience which documents . . . [that] she had this condition
21
at birth, recognized such as she grew up, and took the steps to resolve this
issue. And, she pursued the transition in accordance with The Standards
of Care of the World Professional Association for Transgender Health; I
regard her medically and psychologically as female.
We conclude that Dr. Coles affidavit is sufficient to raise a fact issue regarding
Nikkis sex. According to Dr. Cole, sexuality is a complex phenomenon, particularly
when a persons body . . . [does not] fit the mind. The uncontroverted evidence
established that Nikki suffers from a medical condition known as gender dysphoria,
discussed at length in Dr. Coles affidavit, the symptoms, diagnosis, and treatment of
which are matters beyond the ken of most jurors and jurists. Alexander v. Turtur &
Assocs., Inc., 146 S.W.3d 113, 119 (Tex. 2004). Because the issue is beyond our
common understanding, expert testimony is necessary. Id. at 11920; Haddock v.
Arnspiger, 793 S.W.2d 948, 954 (Tex. 1990) (holding, after reviewing the evidence, that
an expert was needed because the nature of the case was beyond the common
knowledge of laymen). We believe that [e]xpert testimony is necessary . . . [because]
the . . . [condition of gender dysphoria and its treatment are] of such a nature as not to be
within the experience of the layman. Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982).
Similar to when the Texas Supreme Court held that the diagnosis of skull fractures is not
within the experience of the ordinary layman, see id., we hold that the condition of gender
dysphoriaincluding its symptoms, diagnosis, and treatmentare issues of fact not
within our common knowledge and therefore require expert testimony. See Volkswagen
of Am., Inc. v. Ramirez, 159 S.W.3d 897, 90405 (Tex. 2004) (The answer is not within
common knowledge and requires expert testimony.).
The only expert testimony in the summary judgment record is Dr. Coles affidavit.
Heather and Simona failed to submit any expert testimony in support of their motions.
22
Although their evidence established that Nikki was born with male sex organs and had
male sex organs on the date of her ceremonial marriage to Thomas, there is no evidence
to controvert Dr. Coles expert testimony regarding Nikkis medical condition (i.e., gender
dysphoria), its treatment, or his expert opinion that Nikki is medically and psychologically
female as a result of her compliance with the standards of care adopted by the World
Professional Association for Transgender Health. Dr. Coles expert testimony accounts
for Nikkis male sex organs at birth and at the time of her ceremonial marriage to Thomas,
which are uncontroverted facts that cannot be disregarded, and places them in context
such that a reasonable juror crediting Dr. Coles testimony would be able to find Nikkis
sex to be female. Accordingly, we conclude that Nikki raised a genuine issue of material
fact regarding her sex. See TEX. R. CIV. P. 166a(c).
C. Was Summary Judgment Proper Based on Judicial Estoppel?
The only remaining basis for upholding the trial courts summary judgment is
Simonas assertion of judicial estoppel. The doctrine of judicial estoppel precludes a
party from adopting a position inconsistent with one that it maintained successfully in an
earlier proceeding. Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex.
2008). In response to Simonas motion for summary judgment, Nikki argued that Simona
had not pled judicial estoppel and therefore could not assert it for the first time in her
motion for summary judgment. See TEX. R. CIV. P. 94 (listing estoppel as an affirmative
defense that must be specifically pled). We agree. Accordingly, we conclude that the
trial court could not have properly granted summary judgment based on Simonas
assertion of judicial estoppel.
23
D. Is Nikki Entitled to Rendition of Judgment?

Finally, Nikki requests that we render a judgment in her favor; however, we deny
the request because Nikkis no evidence motion for summary judgment does not support
rendition of a judgment. See TEX. R. CIV. P. 166a(i). In reaching this conclusion, we have
considered only the evidence that Heather and Simona produced in response to Nikkis
no evidence motion for summary judgment. See id. As noted above, Nikkis motion was
in form and substance a no evidence motion for summary judgment. See id. It did not
reference any evidence, such as Dr. Coles report, which was attached only to Nikkis
response to Heather and Simonas traditional motions for summary judgment. Therefore,
the issue on appeal is whether Heather and Simona produced some evidence sufficient
to raise a genuine issue of material fact as to Nikkis sex being male. See Merriman v.
XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013) (No-evidence summary judgments
are reviewed under the same legal sufficiency standard as directed verdicts.).
As set forth above, the summary judgment evidence produced by Heather and
Simona does not include any expert testimony. Although we have concluded that the
expert testimony offered by Nikki was sufficient to defeat Heather and Simonas traditional
motions for summary judgment and expressed our belief that expert testimony is
necessary regarding the symptoms, diagnosis, and treatment of gender dysphoria, the
issue here is simply whether Heather and Simona produced some evidence to raise a
fact issue about Nikki being male during the marriage. See Western Investments, Inc. v.
Urena, 162 S.W.3d 547, 550 (Tex. 2005) (Unless the respondent produces summary
judgment evidence raising a genuine issue of material fact, the court must grant the
motion.). Heather and Simonas evidence showed that Nikki had male sex organs during
24
the marriage. In our view, 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. This inference could be
drawn without the assistance of expert testimony.
Accordingly, the evidence was
sufficient to defeat Nikkis no evidence motion for summary judgment. See TEX. R. CIV.
P. 166a(i). We conclude that the trial court properly denied Nikkis motion.
VII. CONCLUSION
For the reasons set forth above, we sustain Nikkis first, fifth, and sixth issues
challenging the trial courts summary judgment in favor of Heather and Simona.
Specifically, we sustain Nikkis first issue because Nikki produced sufficient evidence to
raise a genuine issue of material fact with regard to her sex. We sustain Nikkis fifth issue
because we conclude that Littleton is not controlling because it was subsequently
overruled by the legislature. We sustain Nikkis sixth issue because summary judgment
cannot be upheld based on judicial estoppel. Although Nikki requests that we render a
judgment in her favor based on these issues, we conclude that such relief is inappropriate
because (1) a genuine issue of material fact exists with regard to Nikkis sex and (2)
Heather and Simona produced sufficient evidence to overcome Nikkis no evidence
motion for summary judgment. Accordingly, we render the judgment the trial court should
have rendered, which is a judgment denying Nikki, Heather, and Simonas motions for
summary judgment. See Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848.
We do not reach Nikkis second, third, or fourth issues because the issues would
not entitle Nikki to any additional relief beyond reversal of the trial courts summary
judgment. See TEX. R. APP. P. 47.1. Finally, because we conclude that there is a genuine
25
issue of material fact regarding Nikkis sex, we do not reach Nikkis seventh issue
challenging the constitutionality of the Texas ban on same sex marriages. See TEX. R.
CIV. P. 166a(c); TEX. R. APP. P. 47.1.
We reverse the trial courts judgment and remand the case for further proceedings
consistent with this opinion.
___________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
13th day of February, 2014.
26
TAB 3
Court of Appeals Judgment (In re Estate of Araguz,
No. 13-11-00490-CV, 2014 WL 576085, *1 (Tex.
App.Corpus Christi Feb. 13, 2014)
THE THIRTEENTH COURT OF APPEALS

13-11-00490-CV
IN THE ESTATE OF THOMAS TREVINO ARAGUZ III, DECEASED
On Appeal from the
329th District Court of Wharton County, Texas
Trial Cause No. 44,575
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the judgment of the trial court should be REVERSED and the cause
REMANDED to the trial court.
The Court orders the judgment of the trial court
REVERSED and REMANDED for further proceedings consistent with its opinion. Costs
of the appeal are adjudged against appellee.
We further order this decision certified below for observance.
February 13, 2014
TAB 4
Court of Appeals Notice Denying Appellants Motion
for Rehearing, dated April 15, 2014
OFFICIAL NOTICE
13TH COURT OF APPEALS
100 E CANO ST 5TH FLOOR
EDINBURG TX 78539
FILE COPY
April 15, 2014

Case No. 13-11-00490-CV
Style: IN THE ESTATE OF THOMAS TREVINO ARAGUZ III, DECEASED
Appellants motion for rehearing in the above cause was this day
DENIED by this Court.
T.C. Case# 44,575
MAIL TO:
DORIAN E. RAMIREZ, CLERK
HON. CHAD P. ELLIS

ELLIS & IRWIN, P.C.
302 JACKSON STREET
RICHMOND, TX 77469
OFFICIAL NOTICE
EDINBURG TX 78539
FILE COPY
April 15, 2014

Case No. 13-11-00490-CV
T.C. Case# 44,575
HON. NATALIE VAN HOUTEN ARMOUR

6810 FM 1960 WEST
HOUSTON, TX 77069
MAIL TO:
OFFICIAL NOTICE
EDINBURG TX 78539
FILE COPY
April 15, 2014

Case No. 13-11-00490-CV
T.C. Case# 44,575
MAIL TO:
HON. KENT GEOFFREY RUTTER

HAYNES AND BOONE, LLP
1221 MCKINNEY STREET, SUITE 2100
HOUSTON, TX 77010-2007
OFFICIAL NOTICE
EDINBURG TX 78539
FILE COPY
April 15, 2014

Case No. 13-11-00490-CV
T.C. Case# 44,575
MAIL TO:
HON. KEVIN P. PARKER

THE LANIER LAW FIRM
6810 FM 1960 W
HOUSTON, TX 77069
OFFICIAL NOTICE
EDINBURG TX 78539
FILE COPY
April 15, 2014

Case No. 13-11-00490-CV
T.C. Case# 44,575
MAIL TO:
HON. W. MARK LANIER

THE LANIER LAW FIRM
6810 F.M. 1960 WEST
HOUSTON, TX 77069
TAB 5
2.005. Proof of Identity and Age, TX FAMILY 2.005

!"# !$
% "#
!$& !"# !$
%'!$ $$' "#('
) *& ++,
*& ++, - .#
/'01$%)&++2

(a) The county clerk shall require proof of the identity and age of each applicant.
(b) The proof must be established by:
(1) a driver's license or identification card issued by this state, another state, or a Canadian province that is current or has
expired not more than two years preceding the date the identification is submitted to the county clerk in connection with
an application for a license;
(2) a United States passport;
(3) a current passport issued by a foreign country or a consular document issued by a state or national government;
(4) an unexpired Certificate of United States Citizenship, Certificate of Naturalization, United States Citizen Identification
Card, Permanent Resident Card, Temporary Resident Card, Employment Authorization Card, or other document issued by the
federal Department of Homeland Security or the United States Department of State including an identification photograph;
(5) an unexpired military identification card for active duty, reserve, or retired personnel with an identification photograph;
(6) an original or certified copy of a birth certificate issued by a bureau of vital statistics for a state or a foreign government;
(7) an original or certified copy of a Consular Report of Birth Abroad or Certificate of Birth Abroad issued by the United
States Department of State;
(8) an original or certified copy of a court order relating to the applicant's name change or sex change;
(9) school records from a secondary school or institution of higher education;
2014 Thomson Reuters. No claim to original U.S. Government Works.
2.005. Proof of Identity and Age, TX FAMILY 2.005
(10) an insurance policy continuously valid for the two years preceding the date of the application for a license;
(11) a motor vehicle certificate of title;
(12) military records, including documentation of release or discharge from active duty or a draft record;
(13) an unexpired military dependent identification card;
(14) an original or certified copy of the applicant's marriage license or divorce decree;
(15) a voter registration certificate;
(16) a pilot's license issued by the Federal Aviation Administration or another authorized agency of the United States;
(17) a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(18) a temporary driving permit or a temporary identification card issued by the Department of Public Safety; or
(19) an offender identification card issued by the Texas Department of Criminal Justice.
(c) A person commits an offense if the person knowingly provides false, fraudulent, or otherwise inaccurate proof of an
applicant's identity or age under this section. An offense under this subsection is a Class A misdemeanor.
Credits
Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg., ch. 268, 4.06, eff. Sept.
1, 2005; Acts 2009, 81st Leg., ch. 978, 2, eff. Sept. 1, 2009.
Notes of Decisions (4)

V. T. C. A., Family Code 2.005, TX FAMILY 2.005
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document
TAB 6
TEX. CONST. art. I, 32
32. Marriage; union of one man and one woman, TX CONST Art. 1, 32

!"#$!! %

# ##&'()
'()#*%+ , - ,
. /01 /,2&)334

Sec. 32. (a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
Credits
Adopted Nov. 8, 2005.
Editors' Notes
VALIDITY
<For validity of this section, see De Leon v. Perry (W.D. Tex. 2014) 2014 WL 715741. >

Vernon's Ann. Texas Const. Art. 1, 32, TX CONST Art. 1, 32
End of Document
TAB 7
6.204. Recognition of Same-Sex Marriage or Civil Union, TX FAMILY 6.204

!"# !$
% & "#
!$' & "#
%(!$ &(#"#
) *' +,*' +,- ( # "# ./
0(.1$%)+,,2

(a) In this section, civil union means any relationship status other than marriage that:
(1) is intended as an alternative to marriage or applies primarily to cohabitating persons; and
(2) grants to the parties of the relationship legal protections, benefits, or responsibilities granted to the spouses of a marriage.
(b) A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in
this state.
(c) The state or an agency or political subdivision of the state may not give effect to a:
(1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same
sex or a civil union in this state or in any other jurisdiction; or
(2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the
same sex or a civil union in this state or in any other jurisdiction.
Credits
Added by Acts 2003, 78th Leg., ch. 124, 1, eff. Sept. 1, 2003.
Editors' Notes
VALIDITY
<For validity of this section, see De Leon v. Perry (W.D. Tex. 2014) 2014 WL 715741.>
6.204. Recognition of Same-Sex Marriage or Civil Union, TX FAMILY 6.204

End of Document
TAB 8
Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San
Antonio 1999, pet. denied)
Littleton v. Prange, 9 S.W.3d 223 (1999)
certificate to reflect her altered status as a

woman. V.T.C.A., Family Code 2.001(b);
V.T.C.A., Health & Safety Code 191.028;
V.T.C.A., Civil Practice & Remedies Code
71.004, 71.021; KRS 402.020(1)(d).

!"
#
$

"% & '(
#
)'(*+",
" -.//---0-/1 2
11 Cases that cite this headnote

[2]
!340
Transsexual, who was born a man but underwent sex

reassignment surgery, brought medical malpractice action
under Wrongful Death and Survival Statute, in her capacity as
surviving spouse of a male patient. The 288th Judicial District
Court, Bexar County, Frank Montalvo, J., entered summary
judgment for doctor. Transsexual appealed. The Court of
Appeals, Hardberger, C.J., held as a matter of first impression
that ceremonial marriage between a man and a transsexual
born as a man, but surgically and chemically altered to have
the physical characteristics of a woman, was not valid, and
thus, transsexual lacked standing to bring claim as man's
surviving spouse under wrongful death and survival statutes.
In an appeal from a summary judgment, the

appellate court must determine whether the
movant has shown that no genuine issue of
material facts exists and that the movant is
entitled to judgment as a matter of law.
[3]
Angelini, J., filed concurring opinion.
Lopez, J., filed dissenting opinion.

[4]
[1]
Husband and Wife

Personal injuries to husband
Marriage
Effect of Informal or Invalid Marriage or
Union
Ceremonial marriage between a man and a
transsexual born as a man, but surgically
and chemically altered to have the physical
characteristics of a woman, was not valid,
and thus, transsexual lacked standing as man's
surviving spouse to bring claim under wrongful
death and survival statutes, even though
transsexual and man were married for seven
years, and she officially changed her birth
Judgment
Presumptions and burden of proof
In determining whether a material fact issue
exists to preclude summary judgment, evidence
favoring the nonmovant is taken as true, and
all reasonable inferences are indulged in favor
of the nonmovant; any doubt is resolved in the
nonmovant's favor.
Affirmed.
West Headnotes (4)
Appeal and Error

Extent of Review Dependent on Nature of
Decision Appealed from
Health
Birth certificates
Term inaccurate in statute permitting
amendment to birth certificate if proved by
satisfactory evidence to be inaccurate means
inaccurate as of the time the certificate was
recorded, that is, at the time of birth. V.T.C.A.,
Health & Safety Code 191.028.
Attorneys and Law Firms

*223 Dale Hicks, Jon A. Hyde, Maloney & Maloney, P.C.,
San Antonio, for Appellant.
Thomas F. Nye, Linda C. Breck, Brin & Brin, P.C., Corpus

Christi, for Appellee.
Sitting: PHIL HARDBERGER, Chief Justice, ALMA L.
LPEZ, Justice, KAREN ANGELINI, Justice.
Opinion
OPINION
Opinion by: PHIL HARDBERGER, Chief Justice.
This case involves the most basic of questions. When is a man
a man, and when is a woman a woman? Every schoolchild,
even of tender years, is confident he or she can tell the
difference, especially if the person is wearing no clothes.
These *224 are observations that each of us makes early in
life and, in most cases, continue to have more than a passing
interest in for the rest of our lives. It is one of the more
pleasant mysteries.
The deeper philosophical (and now legal) question is: can
a physician change the gender of a person with a scalpel,
drugs and counseling, or is a person's gender immutably fixed
by our Creator at birth? The answer to that question has
definite legal implications that present themselves in this case
involving a person named Christie Lee Littleton.
FACTUAL BACKGROUND
A complete stipulation of the facts was made by the parties
in this case.
Christie is a transsexual. She was born in San Antonio in
1952, a physically healthy male, and named after her father,
Lee Cavazos. At birth, she was named Lee Cavazos, Jr.
(Throughout this opinion Christie will be referred to as She.
This is for grammatical simplicity's sake, and out of respect
for the litigant, who wishes to be called Christie, and
referred to as she. It has no legal implications.)
At birth, Christie had the normal male genitalia: penis,
scrotum and testicles. Problems with her sexual identity
developed early though. Christie testified that she considered
herself female from the time she was three or four years
old, the contrary physical evidence notwithstanding. Her
distressed parents took her to a physician, who prescribed
male hormones. These were taken, but were ineffective.
Christie sought successfully to be excused from sports

and physical education because of her embarrassment over
changing clothes in front of the other boys.
By the time she was 17 years old, Christie was searching for
a physician who would perform sex reassignment surgery.
At 23, she enrolled in a program at the University of Texas
Health Science Center that would lead to a sex reassignment
operation. For four years Christie underwent psychological
and psychiatric treatment by a number of physicians, some of
whom testified in this case.
On August 31, 1977, Christie's name was legally changed
to Christie Lee Cavazos. Under doctor's orders, Christie also
began receiving various treatments and female hormones.
Between November of 1979 and February of 1980, Christie
underwent three surgical procedures, which culminated in
a complete sex reassignment. Christie's penis, scrotum and
testicles were surgically removed, and a vagina and labia
were constructed. Christie additionally underwent breast
construction surgery.
Dr. Donald Greer, a board certified plastic surgeon, served
as a member of the gender dysphoria team at UTHSC in
San Antonio, Texas during the time in question. Dr. Paul
Mohl, a board certified psychiatrist, also served as a member
of the same gender dysphoria team. Both participated in the
evaluation and treatment of Christie. The gender dysphoria
team was a mutli-disciplinary team that met regularly to
interview and care for transsexual patients.
The parties stipulated that Dr. Greer and Dr. Mohl
would testify that their background, training, education and
experience is consistent with that reflected in their curriculum
vitaes, which were attached to their respective affidavits in
Christie's response to the motions for summary judgment.
In addition, Dr. Greer and Dr. Mohl would testify that
the definition of a transsexual is someone whose physical
anatomy does not correspond to their sense of being or
their sense of gender, and that medical science has not been
able to identify the exact cause of this condition, but it is
in medical probability a combination of neuro-biological,
genetic and neonatal environmental factors. Dr. Greer and
Dr. Mohl would further testify that in arriving at a diagnosis
of transsexualism in Christie, the program at UTHSC was
guided by the guidelines established by the Johns Hopkins
Group and that, *225 based on these guidelines, Christie was
diagnosed psychologically and psychiatrically as a genuine
male to female transsexual. Dr. Greer and Dr. Mohl also
would testify that true male to female transsexuals are, in their

opinion, psychologically and psychiatrically female before
and after the sex reassignment surgery, and that Christie is a
true male to female transsexual.
On or about November 5, 1979, Dr. Greer served as a
principal member of the surgical team that performed the sex
reassignment surgery on Christie. In Dr. Greer's opinion, the
anatomical and genital features of Christie, following that
surgery, are such that she has the capacity to function sexually
as a female. Both Dr. Greer and Dr. Mohl would testify
that, in their opinions, following the successful completion
of Christie's participation in UTHSC's gender dysphoria
program, Christie is medically a woman.
Christie married a man by the name of Jonathon Mark
Littleton in Kentucky in 1989, and she lived with him until
his death in 1996. Christie filed a medical malpractice suit
under the Texas Wrongful Death and Survival Statute in her
capacity as Jonathon's surviving spouse. The sued doctor,
appellee here, filed a motion for summary judgment. The
motion challenged Christie's status as a proper wrongful death
beneficiary, asserting that Christie is a man and cannot be the
surviving spouse of another man.
The trial court agreed and granted the summary judgment.
The summary judgment notes that the trial court considered
the summary judgment evidence, the stipulation, and the
argument of counsel. In addition to the stipulation, Christie's
affidavit was attached to her response to the motion for
summary judgment. In her affidavit, Christie states that
Jonathon was fully aware of her background and the fact that
she had undergone sex reassignment surgery.
THE LEGAL ISSUE

[1] Can there be a valid marriage between a man and a
person born as a man, but surgically altered to have the
physical characteristics of a woman?
OVERVIEW OF ISSUE
This is a case of first impression in Texas. The underlying
statutory law is simple enough. Texas (and Kentucky, for
that matter), like most other states, does not permit marriages
between persons of the same sex. See TEX. FAM.CODE
ANN. 2.001(b) (Vernon 1998); KY.REV.STAT. ANN.
402.020(1)(d) (BanksBaldwin 1999). In order to have

standing to sue under the wrongful death and survival statues,
Christie must be Jonathon's surviving spouse. TEX. CIV.
PRAC. & REM.CODE ANN. 71.004, 71.021 (Vernon
1977). The defendant's summary judgment burden was to
prove she is not the surviving spouse. Referring to the
statutory law, though, does not resolve the issue. This court,
as did the trial court below, must answer this question: Is
Christie a man or a woman? There is no dispute that Christie
and Jonathon went through a ceremonial marriage ritual. If
Christie is a woman, she may bring this action. If Christie is
a man, she may not.
Christie is medically termed a transsexual, a term not often
heard on the streets of Texas, nor in its courtrooms. If we look
at other states or even other countries to see how they treat
marriages of transsexuals, we get little help. Only a handful
of other states, or foreign countries, have even considered
the case of the transsexual. The opposition to same-sex
marriages, on the other hand, is very wide spread. Only one
state has ever ruled in favor of same-sex marriage: Hawaii,
in the case of Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44
(1993). All other cases soundly reject the concept of samesex marriages. See, e.g., Dean v. District of Columbia, 653
A.2d 307 (D.C.1995); Jones v. Hallahan, 501 S.W.2d 588
(Ky.1973); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185
(1971), aff'd, *226 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d
65 (1972); Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187
(1974). Congress has even passed the Defense of Marriage
Act (DOMA), just in case a state decides to recognize samesex marriages.
DOMA defines marriage for federal purposes as a legal
union between one man and one woman, and provides that
no state shall be required to give effect to any public act,
record, or judicial proceeding of any other state respecting a
relationship between persons of the same sex that is treated
as a marriage under the laws of such other State ... or a
right or claim arising from such relationship. Defense of
Marriage Act, Pub.L. No. 104109, 2(a), 110 Stat. 2419
(1996) (codified as amended at 28 U.S.C.A. 1738C (West
Supp.1997). So even if one state were to recognize same-sex
marriages it would not need to be recognized in any other
state, and probably would not be. Marriage is tightly defined
in the United States: a legal union between one man and one
woman. See id. 3(a).
Public antipathy toward same-sex marriages notwithstanding,
the question remains: is a transsexual still the same sex
after a sex-reassignment operation as before the operation?

A transsexual, such as Christie, does not consider herself a
homosexual because she does not consider herself a man. Her
self-identity, from childhood, has been as a woman. Since her
various operations, she does not have the outward physical
characteristics of a man either. Through the intervention of
surgery and drugs, Christie appears to be a woman. In her
mind, she has corrected her physical features to line up with
her true gender.
Although transgenderism is often conflated with
homosexuality,
the
characteristic,
which
defines
transgenderism, is not sexual orientation, but sexual
identity. Transgenderism describes people who experience
a separation between their gender and their biological/
anatomical sex. Mary Coombs, Sexual DisOrientation:
Transgendered People and SameSex Marriage, 8 UCLA
WOMEN'S L.J. 219, 237 (1998).
Nor should a transsexual be confused with a transvestite,
who is simply a man who attains some sexual satisfaction
from wearing women's clothes. Christie does not consider
herself a man wearing women's clothes; she considers herself
a woman wearing women's clothes. She has been surgically
and chemically altered to be a woman. She has officially
changed her name and her birth certificate to reflect her new
status. But the question remains whether the law will take
note of these changes and treat her as if she had been born a
female. To answer this question, we consider the law of those
jurisdictions who have previously decided it.
CASE LAW
The English case of Corbett v. Corbett, 2 All E.R. 33, 1970
WL 29661 (P.1970), appears to be the first case to consider
the issue, and is routinely cited in later cases, including those
cases from the United States. April Ashley, like Christie
Littleton, was born a male, and like Christie, had undergone a
sex-reassignment operation. Id. at 3536. April later married
Arthur Corbett. Id. at 39. Arthur subsequently asked for a
nullification of the marriage based upon the fact that April
was a man, and the marriage had never been consummated. Id.
at 34. April resisted the nullification of her marriage, asserting
that the reason the marriage had not been consummated was
the fault of her husband, not her. Id. at 3435. She said she
was ready, willing, and able to consummate the marriage. Id.
Arthur testified that he was mesmerised by April upon

meeting her, and he dated her for three years before their
marriage. Id. at 37. He said that she looked like a woman,
dressed like a woman and acted like a woman. Id. at 38.
Arthur and April eventually married, but they were never
successful in having sexual relations. *227 Id. at 39. Several
doctors testified in the case, as they did in the current case.
See id. at 41.
Based upon the doctors' testimony, the court came up with
four criteria for assessing the sexual identity of an individual.
These are:
(1) Chromosomal factors;
(2) Gonadal factors (i.e., presence or absence of testes or
ovaries);
(3) Genital factors (including internal sex organs); and
(4) Psychological factors.
Id. at 44.
Chromosomes are the structures on which the genes are
carried which, in turn, are the mechanism by which hereditary
characteristics are transmitted from parents to off-spring. See
id. at 44. An individual normally has 23 pairs of chromosomes
in his or her body cells; one of each pair being derived from
each parent. See id. One pair of chromosomes is known to
determine an individual's sex. See id. The English court stated
that [T]he biological sexual constitution of an individual
is fixed at birth (at the latest), and cannot be changed,
either by the natural development of organs of the opposite
sex, or by medical or surgical means. The respondent's
operation, therefore, cannot affect her true sex. Id. at 47.
The court then reasoned that since marriage is essentially
a relationship between man and woman, the validity of the
marriage depends on whether April is, or is not, a woman.
Id. at 48. The court held that the criteria for answering this
question must be biological and, having so held, found that
April, a transsexual, is not a woman for the purposes of
marriage but is a biological male and has been so since
birth, and, therefore, the marriage between Arthur and April
was void. Id. at 4849. The court specifically rejected the
contention that individuals could assign their own sex by
their own volition, or by means of an operation. Id. at 49. In
short, once a man, always a man.
The year after Corbett was decided in England, a case
involving the validity of a marriage in which one of the
partners was transsexual appeared in a United States court.

This was the case of Anonymous v. Anonymous, 67 Misc.2d
982, 325 N.Y.S.2d 499 (N.Y.Sup.Ct.1971).
Id. J.T. supported M.T. for over two years; however, in 1974,
J.T. left the home, and his support of M.T. ceased. Id. The
lawsuit for maintenance and support followed.
This New York case had a connection with Texas. The

marriage ceremony of the transsexual occurred in Belton,
while the plaintiff was stationed at Fort Hood. Id. at 499.
The purpose of the suit was to declare that no marriage could
legally have taken place. Id. The court pointed out that this
was not an annulment of a marriage because a marriage
contract must be between a man and a woman. Id. at 501. If
the ceremony itself was a nullity, there would be no marriage
to annul, but the court would simply declare that no marriage
could legally have taken place. Id. The court had no difficulty
in doing so, holding: The law makes no provision for a
marriage between persons of the same sex. Marriage is and
always has been a contract between a man and a woman. Id.
at 500.
The doctor who had performed the sex-reassignment

operation testified. Id. at 20506. He described a transsexual
as a person who has a great discrepancy between the physical
genital anatomy and the person's sense of self-identity as a
male or as a female. Id. at 205. The doctor defined gender
identity as a sense, a total sense of self as being masculine or
female; it pervades one's entire concept of one's place in life,
of one's place in society and in point of fact the actual facts
of the anatomy are really secondary. Id. The doctor said that
after the operation his patient had no uterus or cervix, but her
vagina had a good cosmetic appearance and was the same
as a normal female vagina after a hysterectomy. Id. at 206.
Factually, the New York case was less complicated than

Corbett, and the instant case, because there had been no
sexual change operation, and the wife still had normal
male organs. Id. at 499. The plaintiff made this unpleasant
discovery on his wedding night. Id. The husband in
Anonymous was unaware that he was marrying a transsexual.
Id. In both Corbett and the instant case, the husband was fully
aware of the true state of affairs, and accepted it. In fact, in the
instant case, Christie and her husband were married for seven
years, and, according to the testimony, had normal sexual
relations. This is a much longer period of time than any of the
other reported cases.
The next reported transsexual case came from New Jersey.
This is the only United States case to uphold the validity of
a transsexual marriage. In M.T. v. J.T., 140 N.J.Super. 77,
355 A.2d 204, 205 (1976), a transsexual wife brought an
action *228 for support and maintenance growing out of her
marriage. The husband interposed a defense that his wife was
male, and that their marriage was void (and therefore he owed
nothing). Id. M.T., the wife, testified she was born a male, but
she always considered herself a female. Id. M.T. dated men
all her life. Id. After M.T. met her husband-to-be, J.T., they
decided that M.T. would have an operation so she could be
physically a woman. Id.
In 1971, M.T. had an operation where her male organs were
removed and a vagina was constructed. Id. J.T. paid for the
operation, and the couple were married the next year. Id. M.T.
and J.T. lived as husband and wife and had sexual intercourse.
The trial court, in ruling for M.T. by finding the marriage

valid, stated:
It is the opinion of the court that if
the psychological choice of a person is
medically sound, not a mere whim, and
irreversible sex reassignment surgery
has been performed, society has no
right to prohibit the transsexual from
leading a normal life. Are we to look
upon this person as an exhibit in a
circus side show? What harm has said
person done to society? The entire
area of transsexualism is repugnant
to the nature of many persons within
our society. However, this should not
govern the legal acceptance of a fact.
Id. at 207. The appellate court affirmed, holding:
If such sex reassignment surgery
is successful and the postoperative
transsexual is, by virtue of medical
treatment, thereby possessed of the full
capacity to function sexually as male
or female, as the case may be, we
perceive no legal barrier, cognizable
social taboo, or reason grounded in
public policy to prevent the persons'
identification at least for purposes of
marriage to the sex finally indicated.
Id. at 21011.
Ohio is the last state that has considered this issue. See In re
Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (Ohio Probate
Ct.1987). Ladrach was a declaratory judgment action brought
to determine whether a male who became a post-operative
female was permitted to marry a male. Id. at 82930. The
court decided she may not. Id. at 832.
Like Christie, Elaine Ladrach started life as a male. Id. at
830. Eventually, she had the transsexual operation which
removed the penis, scrotum and testes and constructed a
vagina. Id. The doctor who performed the operation testified
that Elaine now had a normal female external genitalia. Id.
He admitted, however, that it would be highly unlikely that
a chromosomal test would show Elaine to be a female. Id.
The court cited a New York Academy of Medicine study of
transsexuals that concluded: ... male to female transsexuals
are still chromosomally males while ostensibly females. Id.
at 831. The court stated that a person's sex is determined at
birth by an anatomical examination by the birth attendant,
which was done at Elaine's birth. Id. at 832. No allegation had
been made that Elaine's *229 birth attendant was in error.
Id. The court reasoned that the determination of a person's
sex and marital status are legal issues, and, as such, the court
must look to the statutes to determine whether the marriage
was permissible. Id. The court concluded:
This court is charged with the
responsibility of interpreting the
statutes of this state and judicial
interpretations of these statutes. Since
the case at bar is apparently one of
first impression in Ohio, it is this
court's opinion that the legislature
should change the statutes, if it is to
be the public policy of the state of
Ohio to issue marriage licenses to postoperative transsexuals.
Id. The court denied the marriage license application. Id.
OTHER AUTHORITIES
In an unreported case, a court in New Zealand was
convinced that a fully transitioned transsexual should be
permitted to marry as a member of his new sex because the
alternative would be more disturbing. See Mary Coombs,
Sexual DisOrientation: Transgendered People and Same
Sex Marriage, 8 UCLA WOMEN'S L.J. 219, 250 & n.
137 (1998) (citing M. v. M. (unreported) 30 May 1991,

S.Ct. of NZ). That is, if a post-operative transsexual female
was deemed a male, she could marry a woman, in what
would to all outward appearances be a same-sex marriage.
Id. The question would then become whether courts should
approve seemingly heterosexual marriages between a postoperative transsexual female and a genetic male, rather than
an apparent same-sex marriage between a post-operative
transsexual female and a genetic female. Id.
The appellee cites K. v. Health Division of Human Resources,
277 Or. 371, 560 P.2d 1070 (1977), in his brief. That case
dealt with whether a post-operative transsexual male could
alter his birth certificate to change the designated gender. Id.
The court held that the issue was a matter of public policy
to be decided by the Oregon legislature. Id. at 376, 560 P.2d
1070. The legislature did respond to the issue, and Oregon
now has a statutory provision that enables a person whose
sex has been changed by surgical procedure to amend his or
her birth certificate. OR. REV. STAT. 432.235(4) (West
1999). Other states have similar statutory provisions or have
interpreted their statutes to permit such an amendment to a
birth certificate. See In re Ladrach, 513 N.E.2d at 832 (noting
fifteen states have permitted a post-operative change of sex
designation on birth records).
DISCUSSION
Christie challenges the trial court's summary judgment on
four issues: (1) Prange did not carry his summary judgment
burden of proving, as a matter of law, that Christie's marriage
was between persons of the same sex; there is no summary
judgment evidence that Christie was male at the time of her
ceremonial marriage to Jonathon Littleton, the deceased; (2)
Prange did not carry his burden of proving, as a matter of law,
that Christie was male at the time of her ceremonial marriage
to Jonathon Littleton, the deceased; sex at birth is not the test
for determining the sex of a true post-operative transsexual for
purposes of marriage; (3) Prange did not carry his summary
judgment burden of proving, as a matter of law, that Christie's
marriage is void; there is no summary judgment evidence that
rebuts the presumption of validity of marriage; and (4) the
summary judgment should be reversed because, at the very
least, Christie produced summary judgment evidence raising
a genuine issue of material fact that precludes summary
judgment.
[2] [3] In an appeal from a summary judgment, we must

determine whether the movant has shown that no genuine
issue of material facts exists and that the movant is entitled
to judgment as a matter of law. Nixon v. Mr. Property
Management Co., 690 S.W.2d 546, 54849 (Tex.1985);
*230 Ray v. O'Neal, 922 S.W.2d 314, 316 (Tex.App.Fort
Worth 1996, writ denied). In determining whether a material
fact issue exists to preclude summary judgment, evidence
favoring the nonmovant is taken as true, and all reasonable
inferences are indulged in favor of the nonmovant. Nixon
v. Mr. Property Management Co., 690 S.W.2d at 54859.
Furthermore, any doubt is resolved in the nonmovant's favor.
Id.
As previously noted, this is a case of first impression in
Texas. It involves important matters of public policy for
the state of Texas. The involvement of juries in the judicial
process provides an important voice of the community, but
we do not ask a jury to answer questions without appropriate
instructions or guidelines. In fact, cases are reversed when
juries have not been provided proper instructions.
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.
The need for legislative guidelines is particularly important
in this case, where the claim being asserted is statutorilybased. The statute defines who may bring the cause of action:
a surviving spouse, and if the legislature intends to recognize
transsexuals as surviving spouses, the statute needs to address
the guidelines by which such recognition is governed. 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, perhaps using the surgical removal of the male
genitalia as the test. As was pointed out by Littleton's counsel,
amputation is a pretty important step. Indeed it is. 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. Our responsibility in this
case is to determine whether, in the absence of legislativelyestablished guidelines, a jury can be called upon to decide
the legality of such marriages. We hold they cannot. In the
absence of any guidelines, it would be improper to launch a
jury forth on these untested and unknown waters.
There are no significant facts that need to be decided. The

parties have supplied them for us. We find the case, at this
stage, presents a pure question of law and must be decided by
this court.
Based on the facts of this case, and the law and studies of
previous cases, we conclude:
(1) Medical science recognizes that there are individuals
whose sexual self-identity is in conflict with their
biological and anatomical sex. Such people are termed
transsexuals.
(2) A transsexual is not a homosexual in the traditional
sense of the word, in that transsexuals believe and
feel they are members of the opposite sex. Nor is a
transsexual a transvestite. Transsexuals do not believe
they are dressing in the opposite sex's clothes. They
believe they are dressing in their own sex's clothes.
(3) Christie Littleton is a transsexual.
(4) Through surgery and hormones, a transsexual male can
be made to look like a woman, including female genitalia
and breasts. Transsexual medical treatment, however,
does not create the internal sexual organs of a women
(except for the vaginal canal). There is no womb, cervix
or ovaries in the post-operative transsexual female.
(5) The male chromosomes do not change with either
hormonal treatment or sex reassignment surgery.
Biologically a post-operative female transsexual is still
a male.
(6) The evidence fully supports that Christie Littleton, born
male, wants and believes herself to be a woman. She has
made every conceivable effort *231 to make herself a
female, including a surgery that would make most males
pale and perspire to contemplate.
(7) Some physicians would consider Christie a female;
other physicians would consider her still a male. Her
female anatomy, however, is all man-made. The body
that Christie inhabits is a male body in all aspects other
than what the physicians have supplied.
We recognize that there are many fine metaphysical
arguments lurking about here involving desire and being,
the essence of life and the power of mind over physics.
But courts are wise not to wander too far into the misty
fields of sociological philosophy. Matters of the heart do not

always fit neatly within the narrowly defined perimeters of
statutes, or even existing social mores. Such matters though
are beyond this court's consideration. Our mandate is, as the
court recognized in Ladrach, to interpret the statutes of the
state and prior judicial decisions. This mandate is deceptively
simplistic in this case: Texas statutes do not allow same-sex
marriages, and prior judicial decisions are few.
[4] Christie was created and born a male. Her original
birth certificate, an official document of Texas, clearly so
states. During the pendency of this suit, Christie amended
the original birth certificate to change the sex and name.
Under section 191.028 of the Texas Health and Safety Code
she was entitled to seek such an amendment if the record
was incomplete or proved by satisfactory evidence to be
inaccurate. TEX. HEALTH & SAFETY CODE ANN.
191.028 (Vernon 1992). The trial court that granted the
petition to amend the birth certificate necessarily construed
the term inaccurate to relate to the present, and having
been presented with the uncontroverted affidavit of an expert
stating that Christie is a female, the trial court deemed this
satisfactory to prove an inaccuracy. However, the trial court's
role in considering the petition was a ministerial one. It
involved no fact-finding or consideration of the deeper public
policy concerns presented. No one claims the information
contained in Christie's original birth certificate was based on
fraud or error. We believe the legislature intended the term
inaccurate in section 191.028 to mean inaccurate as of the
time the certificate was recorded; that is, at the time of birth.
At the time of birth, Christie was a male, both anatomically
and genetically. The facts contained in the original birth
certificate were true and accurate, and the words contained in
the amended certificate are not binding on this court.
There are some things we cannot will into being. They just
are.
CONCLUSION
We hold, as a matter of law, that Christie Littleton is a male.
As a male, Christie cannot be married to another male. Her
marriage to Jonathon was invalid, and she cannot bring a
cause of action as his surviving spouse.
We affirm the summary judgment granted by the trial court.
ANGELINI, J., concurring opinion.

LPEZ, J., dissenting opinion.
KAREN ANGELINI, Justice, concurring.
I concur in the judgment. Given the complete absence of
any legislative guidelines for determining whether Texas
law will recognize a marriage between a male-to-female
transsexual and a male, this court is charged with making that
determination. This case involves no disputed fact issues for
a jury to decide, but presents this court with pure issues of law
and public policy.
In his opinion, Chief Justice Hardberger has concluded, based
on an analysis of other cases considering this issue, that Texas
law will not recognize Christie Lee Littleton's marriage to
John Mark Littleton. In doing so, Chief Justice Hardberger
notes his agreement with the Ladrach *232 decision, which
indicates that this is a matter best left to the legislature.
He further notes, in accordance with the Corbett case, that
because we lack statutory guidance at this time, we must
instead be guided by biological factors such as chromosomes,
gonads, and genitalia at birth. According to Chief Justice
Hardberger, such biological considerations are preferable to
psychological factors as tools for making the decision we
must make. In this case, I must agree.
I note, however, that real difficulties ... will occur if these
three criteria [chromosomal, gonadal and genital tests] are not
congruent. Corbett v. Corbett, 2 All E.R. 33, 48 (P.1970).
We must recognize the fact that, even when biological factors
are considered, there are those individuals whose sex may
be ambiguous. See Julie A. Greenberg, Defining Male and
Female: Intersexuality and the Collision Between Law and
Biology, 41 ARIZ. L.REV. 265 (1999). Having recognized
this fact, I express no opinion as to how the law would view
such individuals with regard to marriage. We are, however,
not presented with such a case at this time. See Corbett, 2 All
E.R. at 4849.
The stipulated evidence in the case that is before us
establishes that Christie Lee Littleton was born Lee Edward
Cavazos, Jr., a male. Her doctors described her as a true
transsexual, which is someone whose physical anatomy
does not correspond to their sense of being or their sense
of gender.... 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 Christie

Lee Littleton and a typical male was her psychological sense
of being a female. Under these facts, I agree that Texas law
will not recognize her marriage to a male.
ALMA L. LPEZ, Justice, dissenting.

Although the standard for reviewing a trial court's order for
summary judgment is well-settled in this state, that standard
is not addressed in the majority's opinion. To prevail on a
motion for summary judgment, the movant must show that
no genuine issue of material fact exists and that the movant is
entitled to judgment as a matter of law. Nixon v. Mr. Property
Management Co., 690 S.W.2d 546, 54849 (Tex.1985). In the
instant case, this standard required Dr. Prange to prove that
Christie Littleton was not the surviving spouse of Jonathon
Littleton. To disprove this element of the plaintiff's cause
of action, Dr. Prange produced only Christie's original birth
certificate. This evidence, the majority concludes, is enough
to prove as a matter of law that Christie Littleton is a male and
that, as a result, Christie is not Jonathon's surviving spouse.
must be decided by this court rather than to allow the case to

proceed to trial; that is, whether Christie is male or female.
On its surface, the question of whether a person is male
or female seems simple enough. Complicated with the
issues of surgical alteration, sexual identity, and same-sex
marriage, the answer is not so simple. To answer the question,
the majority assumes that gender is accurately determined
at birth. Consider the basis for such a determination.
Traditionally, an attending physician or mid-wife determines
a newborn's gender at birth after a visual inspection of
the newborn's genitalia. If the child has a penis, scrotum,
and testicles, the attendant declares the child to be male. If
the child does not have a penis, scrotum, and testicles, the
attendant declares the child to be female. This declaration
is then memorialized by a certificate of birth, without an
examination of the child's chromosomes or an inquiry about
how the child feels about its sexual identity. Despite this
simplistic approach, the traditional method of determining
gender does not always result in an accurate record of gender.
While a birth certificate would ordinarily establish a

person's gender conclusively, Christie presented significant
controverting evidence that indicated she was female.
This evidence was so substantial that it raised a genuine
issue of material fact about whether she was Jonathon's
surviving spouse. In an ordinary summary judgment case,
such controverting evidence would prevent this court from
concluding that the movant had met its burden on a motion
for summary judgment. But in this rather extraordinary case,
the majority has determined that there are no significant facts
that need to be determined and concluded that Christie is a
male as a matter of law. Despite this conclusion, there is no
law to serve as the basis of this conclusion.
Texas law recognizes that inaccuracies occur in determining,

or at least recording, gender. By permitting the amendment of
an original birth certificate upon satisfactory evidence, Texas
law allows these inaccuracies to be corrected. TEX. HEALTH
& SAFETY CODE ANN. 191.028 (Vernon 1992). Indeed,
Christie's gender was lawfully corrected by an amended birth
certificate months before the trial court ruled on Dr. Prange's
motion for summary judgment. Notably, the amended birth
certificate reflects the original filing date of April 10, 1952,
the original date of birth, and an issuance date of August, 14,
1998. Retention of the original filing date indicates that the
amended birth certificate has been substituted for the original
birth certificate in the same way an amended pleading is
substituted for an original pleading in a civil lawsuit.
The absence of controlling law precludes a judgment as

a matter of law in this case. Notably, neither federal nor
state law defines how a person's gender is to be determined.
Our state legislature has not determined the guidelines
that should govern the recognition of marriages involving
transsexuals. Particularly material to this case, the legislature
has not addressed whether a transsexual is to be considered
a surviving spouse under the Wrongful Death and Survival
Statutes. In an ordinary *233 case, the absence of such law
would prevent this court from concluding that the movant was
entitled to judgment as a matter of law. In the instant case,
however, the majority relies on the absence of statutory law
to conclude that this case presents a pure question of law that
Under the rules of civil procedure, a document that has been

replaced by an amended document is considered a nullity.
Rule 65 provides that the substituted instrument takes the
place of the original. TEX.R. CIV. P. 65. Although neither
a state statute nor case law address the specific effect of
an amended birth certificate, many cases address the effect
of an amended pleading. See Randle v. NCNB Texas Nat'l
Bank, 812 S.W.2d 381, 384 (Tex.App.Dallas 1991, no
writ) (striking of second amended pleading restored first
amended pleading); Wu v. Walnut Equip. Leasing Co., 909
S.W.2d 273, 278 (Tex.App.Houston [14th Dist.] 1995)
(unless substituted instrument is set aside, the instrument
for which it is substituted is no longer considered part of
the pleading), rev'd on other grounds, 920 S.W.2d 285

(Tex.1996). Under this authority, an amended instrument
changes the original and is substituted for the original.
Although a birth certificate is not a legal pleading, the
document is an official state document. Amendment of the
state document is certainly analogous to an amended legal
pleading. In this case, Christie's amended birth certificate
replaced her original birth certificate. In effect, the amended
birth certificate nullified the original birth certificate. As a
result, summary judgment was issued based on a nullified
document. How then can the majority conclude that Christie
is a male? If Christie's evidence that she was female was
satisfactory enough for the trial court to issue an order to
amend her original birth certificate to change both her name
and her gender, why is it not satisfactory enough to raise a
genuine question of material fact on a motion for summary
judgment?
those issues, however, this court is bound to rely on the

standard of review and the evidence presented by the parties.
Here, the stipulated evidence alone raises a genuine question
about whether Christie is Jonathon's surviving spouse. Every
case need not be precedential. In this case, the court is
required to determine as a matter of law whether Christie is
Jonathon's surviving spouse, not to speculate on the legalities
of public policies not yet addressed by our legislature. Under
a focused review of this case, a birth certificate reflecting
the birth of a male child named Lee Cavazos does not
prove that Christie Littleton is not the surviving spouse of
Jonathan Littleton. Having failed to prove that Christie was
not Jonathon's surviving spouse, Dr. Prange was not entitled
to summary judgment. Because Christie's summary judgment
evidence raises a genuine question of material fact about
whether she is the surviving spouse of Jonathon Littleton, I
respectfully dissent.
*234 Granted the issues raised by this case are best

addressed by the legislature. In the absence of law addressing
End of Document
10
TAB 9
2.001. Marriage License, TX FAMILY 2.001

!"# !$
% "#
!$& !"# !$
%'!$ $$' "#('
) *& ++
*& ++ "#('

(a) A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of
any county of this state.
(b) A license may not be issued for the marriage of persons of the same sex.
Credits
Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.
Editors' Notes
VALIDITY
<For validity of this section, see De Leon v. Perry (W.D. Tex. 2014) 2014 WL 715741.>

End of Document
TAB 10
2.004. Application Form, TX FAMILY 2.004

!"# !$
% "#
!$& !"# !$
%'!$ $$' "#('
) *& ++,
*& ++, $$'
-'./0,)&+1

(a) The county clerk shall furnish the application form as prescribed by the bureau of vital statistics.
(b) The application form must contain:
(1) a heading entitled Application for Marriage License, ____________ County, Texas;
(2) spaces for each applicant's full name, including the woman's maiden surname, address, social security number, if any,
date of birth, and place of birth, including city, county, and state;
(3) a space for indicating the document tendered by each applicant as proof of identity and age;
(4) spaces for indicating whether each applicant has been divorced within the last 30 days;
(5) printed boxes for each applicant to check true or false in response to the following statement: I am not presently
married and the other applicant is not presently married.;
(6) printed boxes for each applicant to check true or false in response to the following statement: The other applicant
is not related to me as:
(A) an ancestor or descendant, by blood or adoption;
(B) a brother or sister, of the whole or half blood or by adoption;
(C) a parent's brother or sister, of the whole or half blood or by adoption;
(D) a son or daughter of a brother or sister, of the whole or half blood or by adoption;
(E) a current or former stepchild or stepparent; or
(F) a son or daughter of a parent's brother or sister, of the whole or half blood or by adoption.;
(7) printed boxes for each applicant to check true or false in response to the following statement: I am not presently
delinquent in the payment of court-ordered child support.;
(8) a printed oath reading: I SOLEMNLY SWEAR (OR AFFIRM) THAT THE INFORMATION I HAVE GIVEN IN THIS
APPLICATION IS CORRECT.;
(9) spaces immediately below the printed oath for the applicants' signatures;
(10) a certificate of the county clerk that:
(A) each applicant made the oath and the date and place that it was made; or
(B) an applicant did not appear personally but the prerequisites for the license have been fulfilled as provided by this
chapter;
(11) spaces for indicating the date of the marriage and the county in which the marriage is performed;
(12) a space for the address to which the applicants desire the completed license to be mailed; and
(13) a printed box for each applicant to check indicating that the applicant wishes to make a voluntary contribution of $5
to promote healthy early childhood by supporting the Texas Home Visiting Program administered by the Office of Early
Childhood Coordination of the Health and Human Services Commission.
(c) An applicant commits an offense if the applicant knowingly provides false information under Subsection (b)(1), (2), (3), or
(4). An offense under this subsection is a Class C misdemeanor.
(d) An applicant commits an offense if the applicant knowingly provides false information under Subsection (b)(5) or (6). An
offense under this subsection is a Class A misdemeanor.
Credits
Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997. Amended by Acts 1997, 75th Leg., ch. 776, 1, eff. Sept. 1,
1997; Acts 2005, 79th Leg., ch. 268, 4.05, eff. Sept. 1, 2005; Acts 2013, 83rd Leg., ch. 820 (S.B. 1836), 1, eff. June 14, 2013.

End of Document
TAB 11
S. Research Ctr., Bill Analysis, Tex. H.B. 3666, 81st
Leg., R.S. (2009)
81(R) HB 3666 - Engrossed version - Bill Analysis
Page 1 of 3
BILL ANALYSIS
Senate Research Center
H.B. 3666
By: Kolkhorst (Wentworth)
Jurisprudence
5/18/2009
Engrossed
AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

H.B. 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. It prohibits the county clerk from issuing a
marriage license to any applicant who has been divorced within the last 30 days either in the State of Texas or
elsewhere. In addition, the bill requires that proper identification be presented by a parent or conservator when
providing consent of marriage for minors.
This bill prohibits clerks from issuing duplicate marriage licenses except in the event that a license issued by a county
clerk is lost, destroyed, or rendered useless. Otherwise, the clerk may only issue a certified copy of a recorded license
upon request. H.B. 3666 adds language to include a certificate of informal marriage in statute. The bill repeals Section
2.011, Family Code, which states that county clerks should record all licenses issued by the clerk and all documents
submitted with an application for license or note a summary of the documents on the application. This is an obsolete
portion of the code as the issue of recording is addressed in Section 2.208, Family Code.
H.B. 3666 amends current law relating to the application for and issuance of a marriage license.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the executive commissioner of the Health and Human Services
Commission in SECTION 5 (Section 2.102, Family Code), SECTION 6 (Section 2.209, Family Code), and SECTION
11 of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 2.002, Family Code, to require each person applying for a license, except as provided by
Section 2.006 (Absent Applicant), to, among other things, submit the person's proof of identity and age as provided by
Section 2.005(b), rather than this chapter.
SECTION 2. Amends Section 2.005(b), Family Code, to require that the proof be established by certain forms of
identification. Deletes existing text requiring that proof be established by a certified copy of the applicant's birth
certificate or by some certificate license, or document issued by this state or another state, the United States, or a
foreign government.
SECTION 3. Amends Section 2.006(b), Family Code, to require the person applying on behalf of an absent applicant
to provide the clerk, notwithstanding Section 132.001 (Use by Inmates in Lieu of Sworn Declaration), Civil Practice
and Remedies Code, the notarized affidavit of the absent applicant as provided by this subchapter; proof of the identity
and age of the absent applicant under Section 2.005(b), rather than as provided by this subchapter; if required because
the absent applicant is a person under 18 years of age, documents establishing that a prior marriage has been dissolved,
rather than the documents establishing parental consent, a court order authorizing the marriage of the absent, underage
applicant, or documents establishing consent by a parent or a person who has legal authority to consent to the marriage,
including certain proof of identity and consent.
SECTION 4. Amends Section 2.009(a), Family Code, to delete existing text prohibiting the county clerk, except as
provided by Subsections (b) and (d), from issuing a license if either applicant indicates that the applicant has been
divorced by a decree of a court of this state.
http://www.legis.state.tx.us/tlodocs/81R/analysis/html/HB03666E.htm
6/27/2014
Page 2 of 3
SECTION 5. Amends Section 2.102, Family Code, by adding Subsections (i) and (j) as follows:
(i) Requires a parent or person who has legal authority to consent to marriage for an underage applicant who
gives consent under this section to provide certain proof of identity and consent.
(j) Requires the executive commissioner of the Health and Human Services Commission (executive
commissioner) to adopt rules detailing acceptable proof of the legal authority to consent to the marriage of an
underage applicant. Requires the executive commissioner to ensure that the rules adequately protect against
fraud and do not create an undue burden on any class of person legally entitled to consent to the marriage of an
underage applicant.
SECTION 6. Amends Section 2.209, Family Code, as follows:
Sec. 2.209. DUPLICATE LICENSE. (a) Requires the county clerk on request to issue a certified copy of a
recorded marriage license. Deletes existing text requiring the county clerk, on the application and proof of
identity of a person whose marriage is recorded in the records of the county clerk, to issue a duplicate marriage
license completed with information as contained in the records.
(b) Requires a county clerk to issue a duplicate license if a marriage license issued by the clerk is lost,
destroyed, or rendered useless. Deletes existing text requiring the county clerk, on the application and
proof of identity of both persons whom a marriage license was issued but not recorded as required by
Section 2.208, to issue a duplicate license if each person submits to the clerk an affidavit stating certain
information.
(c) Requires both parties to the marriage, if one or both parties to a marriage license discover an error on
the recorded marriage license, to execute a notarized affidavit stating the error. Requires the county
clerk to file and record the affidavit as an amendment to the marriage license and provides that the
affidavit is considered part of the marriage license. Requires the clerk to include a copy of the affidavit
with any future certified copy of the marriage license issued by the clerk.
(d) Requires the executive commissioner by rule to prescribe the form of the affidavit under Subsection
(c).
SECTION 7. Amends Section 2.403(a), Family Code, to require the county clerk to require proof of the identity and
age of each party to the declaration of informal marriage to be established by a document listed in Section 2.005(b),
rather than by a certified copy of the party's birth certificate or by some certificate, license, or document issued by this
state or another states, the United States, or a foreign government.
SECTION 8. Amends the heading to Section 2.404, Family Code, to read as follows:
Sec. 2.404. RECORDING OF CERTIFICATE OR DECLARATION OF INFORMAL MARRIAGE.
SECTION 9. Amends Section 2.404, Family Code, by adding Subsection (a-1) and amending Subsections (b)-(d), as
follows:
(a-1) Authorizes the clerk on proper execution of the declaration, to prepare a certificate of informal marriage,
enter on the certificate the names of the persons declaring their informal marriage and the date the certificate or
declaration is issued, and record the time at which the certificate or declaration is issued.
(b) Prohibits the county clerk from certifying the declaration or issue or recording the certificate of informal
marriage if either party fails to supply any information or provide any document required by this subchapter,
either party is under 18 years of age, or either party checks "false" in response to the statement of relationship to
the other party.
(c) Requires the county clerk, on execution of the declaration, to record the declaration or certificate of informal
6/27/2014
Page 3 of 3
marriage, deliver the original of the declaration to the parties, deliver the original of the certificate of informal
marriage to the parties, if a certificate was prepared, and send a copy of the declaration of informal marriage to
the bureau of vital statistics. Deletes existing text requiring the county clerk to record the declaration and all
documents submitted with declaration or note a summary of them on the declaration form.
(d) Provides that an executed declaration or a certificate of informal marriage recorded as provided in this
section is prima facie evidence of the marriage of the parties. Makes a nonsubstantive change.
SECTION 10. Repealer: Section 2.011(Recording), Family Code.
SECTION 11. Requires the executive commissioner as soon as practicable after the effective date of this Act, to adopt
the rules required by Sections 2.102(j) and 2.209(d), Family Code, as added by this Act.
SECTION 12. (a) Makes application of Sections 2.002, 2.005, 2.006, 2.009, and 2.102, Family Code, as amended by
this Act, prospective for a marriage license submitted to a county clerk.
(b) Makes application of Sections 2.209(a) and (b), Family Code, as amended by this Act, prospective for a
duplicate marriage license or certified copy of a marriage license.
(c) Makes application of Section 2.209(c), Family Code, as added by this Act, prospective.
(d) Makes application of Sections 2.403 and 2.404, Family Code, as amended by this Act, prospective for a
declaration or certificate of informal marriage.
SECTION 13: Effective date: September 1, 2009.
6/27/2014
TAB 12
Act of May 27, 2009, 81st Leg., R.S., Ch. 978, 12(a),
2009 Tex. Gen. Laws 2571, 2574
List of 18 Editors and Revisors Notes for 2.005. Proof of Identity and Age
Editors and Revisors Notes (18)
HISTORICAL AND STATUTORY NOTES

2006 Main Volume
Acts 2005, 79th Leg., ch. 268 added subsec. (c).
Section 4.20 of Acts 2005, 79th Leg., ch. 268 provides:
The changes in law made by this article to Sections 2.004 , 2.005 , 2.007 , 2.009 , and 2.102,
Family Code , apply only to an application for a marriage license filed on or after the effective date [Sept. 1,
2005] of this Act. An application filed before the effective date of this Act is governed by the law in effect on the
date the application was filed, and the former law is continued in effect for that purpose.
2014 Electronic Pocket Part Update
2009 Legislation
Acts 2009, 81st Leg., ch. 978 rewrote subsec. (b), which prior thereto read:
The proof must be established by a certified copy of the applicants birth certificate or by some certificate,
license, or document issued by this state or another state, the United States, or a foreign government.
Section 12(a) of Acts 2009, 81st Leg., ch. 978 provides:
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 a marriage license submitted before the effective date of this Act is
governed by the law in effect immediately before that date, and the former law is continued in effect for that
purpose.
2006 Main Volume
Prior Laws:
P.D. 4667.
Rev.Civ.St.1879, art. 2841.
Acts 1911, 32nd Leg., p. 63.
Rev.Civ.St.1925, art. 4605 .
Acts 1959, 56th Leg., 2nd C.S., p. 113, ch. 20, 1.
Acts 1965, 59th Leg., p. 1151, ch. 543, 1.
List of 18 Editors and Revisors Notes for 2.005. Proof of Identity and Age
Vernons Ann.Civ.St. art. 4605, subsec. (b) .

Acts 1969, 61st Leg., p. 2707, ch. 888, 1.
V.T.C.A., Family Code 1.04 .

Delgado V Araguz: Petition For Review Filed On Behalf of Heather Delgado

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Delgado V Araguz: Petition For Review Filed On Behalf of Heather Delgado

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FILED

IN THE SUPREME COURT OF TEXAS

PETITION FOR REVIEW

June 27, 2014

IDENTITY OF PARTIES AND COUNSEL

COUNSEL FOR RESPONDENT NIKKI ARAGUZ

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

UNDER LITTLETON, NIKKI IS IMMUTABLY MALE .................................... 3

THE 2009 AMENDMENTS TO 2.005 DID NOT OVERRULE

Courts are Required to Adhere to Rules of Statutory and

The Courts Construction Disregards Statutory Historical

The Term Identity Does Not Refer to Sexual Identity ........ 9

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

THE 2009 AMENDMENTS CANNOT BE RETROACTIVELY APPLIED

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

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

Acker v. Texas Water Commn,

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

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

STATEMENT OF THE CASE

1CR 146, 259, 267.

THE JUDGMENT OF THE TRIAL COURT

See In re Estate of Araguz, No. 13-11-00490-CV, 2014 WL 576085, *1 (Tex. App.Corpus

See 2014 WL 576085 at *1.

Id. at *1, 7-14.

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 2014 WL 576085 at *7-10.

See id.; Littleton, 9 S.W.3d at 231.

ISSUES PRESENTED FOR REVIEW

TEX. CONST., art I, 32.

August 19, 2008

August 23, 2008

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

UNDER LITTLETON, NIKKI IS IMMUTABLY MALE

persons sex for marriage purpose is immutably determined at birth.28 Littleton is

Id.; see 6.204.

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

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

See 2CR 378; 4CR 927.

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

THE 2009 AMENDMENTS TO 2.005 DID NOT OVERRULE LITTLETON

Courts are Required to Adhere to Rules of Statutory and

In construing a statute, a courts primary role is to ascertain and give effect

City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010).

Tex. Govt Code 311.021 (West 2014).

Tex. Govt Code 311.011 (West 2014).

The Courts Construction Disregards Statutory Historical

TEX. GOVT CODE 311.023 (West 2014).

Littleton, 9 S.W.3d at 230-231.

TEX. FAM. CODE 6.204.

TEX. CONST., art. I, 32.

They merely list

Therefore, the courts holding

TEX. FAM. CODE 2.005.

The Term Identity Does Not Refer to Sexual Identity

2.005 (West 2008).

See 2.005 (West 2014).

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

Rather, it is obvious that the

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

Section 2.005 has Never Purported to Define Marriage