FILED

15-0135
2/17/2015 11:07:08 PM
tex-4185598
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

No. __________

In the Supreme Court of Texas

IN RE STATE OF TEXAS,
Relator
On Petition for Writ of Mandamus to
Probate Court No. 1, Travis County, Texas
PETITION FOR WRIT OF MANDAMUS
KEN PAXTON
Attorney General of Texas

SCOTT A. KELLER
Solicitor General

CHARLES E. ROY
First Assistant Attorney General

MICHAEL P. MURPHY
Assistant Solicitor General
State Bar No. 24051097
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-2995
Fax: (512) 474-2697
michaelp.murphy@
texasattorneygeneral.gov
COUNSEL FOR RELATOR

IDENTITY OF PARTIES AND COUNSEL

Relator: State of Texas
Relators Lead Counsel:
Michael P. Murphy
State Bar No. 24051097
Assistant Solicitor General
Michaelp.murphy@texasattorneygeneral.gov
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-2995
Fax: (512) 474-2697

Respondent:
Hon. Guy Herman
Judge of Probate Court No. 1, Travis County, Texas
Probate Court No. 1
1000 Guadalupe, Room 217
Austin, Texas 78701
Tel.: (512) 854-9258
Fax: (512) 854-4418

Real Parties in Interest:

Sonemaly Phrasavath
James Powell
Alice Huseman
Unknown heirs of Stella Marie Powell

Real Parties in Interests Appellate and Trial Counsel

Craig Hopper
Brian T. Thompson
Hopper Mikeska
400 W. 15th Street, Suite 408
Austin, Texas 78701

Michael B. Knisely
Jason S. Scott
Osborne, Helman, Knebel, DeLeery
301 Congress Avenue, Suite 1910
Austin, Texas 78701

COUNSEL FOR SONEMALY

PHRASAVATH

COUNSEL FOR JAMES POWELL

ALICE HUSEMAN

AND

Douglas A. Booth
Law Offices of Douglas A. Booth
3801 S. Capital of Texas Highway,
Suite 255
Austin, Texas 78704
COUNSEL FOR UNKNOWN HEIRS

ii

TABLE OF CONTENTS
Identity of Parties and Counsel ................................................................. i
Index of Authorities.................................................................................. iv
Statement of the Case .............................................................................. vi
Statement of Jurisdiction ........................................................................ vii
Issue Presented ......................................................................................viii
Statement of Facts .................................................................................... 2
Argument ................................................................................................... 4
I.

The Trial Court Abused Its Discretion By Purporting to

Issue an Order With Statewide Application That
Facially Invalidates State Law While Those Issues Are
Pending in This Court. ............................................................ 4

II.

Absent Mandamus Relief, The Courts Unnecessarily

Broad Order Threatens Serious, Imminent Harm. ................ 6

III.

There Is No Adequate Remedy By Appeal Because The

Harm Is Imminent And No Interlocutory Appeal Is
Available. ................................................................................. 8

IV.

The State Has a Justiciable Interest In The Outcome Of

The Underlying Proceedings. .................................................. 9

Prayer ........................................................................................................ 9
Mandamus Certification ....................................................................... 111
Certificate of Service ............................................................................. 122
Certificate of Compliance ...................................................................... 144

iii

INDEX OF AUTHORITIES
Cases
Bally Total Fitness Corp. v. Jackson,
53 S.W.3d 352 (Tex. 2001)................................................................ 8
DeBoer v. Synder,
No. 2:12-cv-10285, 2014 WL 1100794
(E.D. Mich. Mar. 21, 2014) ............................................................... 7
In re Jorden,
249 S.W.3d 416 (Tex. 2008, orig. proceeding) .................................. 4
In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. App.Dallas 2010, pet. filed)....................... 9
In re Prudential Ins. Co. v. Am.,
148 S.W.3d 124 (Tex. 2004).............................................................. 4
Kitchen v. Herbert,
No. 2:13-CV-217, 2013 WL 6834634
(D. Utah Dec. 23, 2013) ................................................................. 6-7
Perry v. Del Rio,
67 S.W.3d 85 (Tex. 2001).................................................................. 9
Terrazas v. Ramirez,
829 S.W.2d 712 (Tex. 1991).............................................................. 9
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992).............................................................. 4
Constitutional Provisions, Statutes and Rules
TEX. CONST. art. I, 32 .......................................................... vi, viii, 1, 3, 5
TEX. CONST. art. IV, 1 ............................................................................. 9

iv

TEX. CONST. art. IV, 22 ........................................................................... 9

TEX. CIV. PRAC. & REM. CODE 51.014(a) ................................................. 8
TEX. FAM. CODE 2.401 ......................................................... vi, viii, 1, 3, 5
TEX. FAM. CODE 6.204(b) ..................................................... vi, viii, 1, 3, 5
TEX. GOVT CODE 22.002(a) ................................................................... vii
TEX. GOVT CODE 402.010........................................................................ 9
TEX. GOVT CODE 402.021........................................................................ 9
TEX. R. APP. P. 52.1 .................................................................................. vii
Other Authorities
Kathleen Gray & Gina Damron, Federal Appeals Court
Extends Freeze on Michigan Gay Marriages,
DETROIT FREE PRESS (March 25, 2014) ............................................ 7
Order, In re Marriage of A.L.F.L. and K.L.L., No. 04-1400364-CV (Tex. App.San Antonio, July 8, 2014).......................... 5
Charlie Savage & Jack Healy, U.S. to Recognize 1,300
Marriages Disputed by Utah, N.Y. TIMES
(Jan. 10, 2014) .................................................................................. 7

STATEMENT OF THE CASE

Nature of the Case:

This mandamus proceeding challenges an

unappealable
order
denying
special
exceptions but holding Article I, section 32 of
the Texas Constitution and Texas Family
Code
sections
2.401
and
6.204(b)
unconstitutional.

Respondent:

The Hon. Guy Herman,

Probate Court No. 1, Travis County

Course of
Proceedings And
Respondents
Challenged Action:

This mandamus petition arises out of probate

proceedings. Real Parties in Interest James
Powell, and Alice Huseman filed an
Application for Determination of Heirship
following the death of Stella Marie Powell.
Real Party in Interest Sonemaly Phrasavath
filed a contest to that application and a
counter-application for determination of
heirship based on her claim that she was
Stella Marie Powells common law wife.
James Powell and Huseman filed a motion to
dismiss
and
special
exceptions
to
Phrasavaths contest and application. On
February 17, 2015, the probate court denied
the special exceptions in their entirety and
found that Texas Constitution art. I, 32 and
Texas Family Code sections 2.401 and
6.204(b), which prohibit same-sex marriage,
to be unconstitutional. That same day, the
State of Texas moved to intervene to defend
the constitutionality of its laws.

vi

STATEMENT OF JURISDICTION
The Court has original jurisdiction to issue the requested writ of
mandamus because it seeks relief from an order of a statutory probate
court judge. See TEX. GOVT CODE 22.002(a); TEX. R. APP. P. 52.1.
This petition was not first presented to the court of appeals due to
the extremely time-sensitive nature of this matter and the serious harm
that could arise absent prompt relief. The probate court invalidated
Article I, section 32 of the Texas Constitution and Texas Family Code
sections 2.401 and 6.204(b) without entering a stay. MR Tab F (holding
that Texas marriage laws are unconstitutional insofar as they restrict
marriage in the State of Texas to a union of a man and woman). This
broad ruling may cause same-sex couples to seek marriage licenses across
the State, and district clerks may mistakenly rely on this order to begin
granting such licenses. If that occurred, the harm to the couples, state
officials, and the general public would be difficult if not impossible to
undo.

vii

ISSUE PRESENTED
Article I, section 32 of the Texas Constitution defines marriage in
Texas as only the union of one man and one woman. Texas Family Code
section 6.204(b) declares any marriage between persons of the same sex
void. And Texas Family Code section 2.401 defines a common law
marriage to be between a man and a woman.
Was it an abuse of discretion for the probate court to purport to
facially invalidate these laws as unconstitutional, in an unnecessarily
broad, unappealable interlocutory order, without staying its ruling when
this Court is currently considering this constitutional question?

viii

No. __________

In the Supreme Court of Texas

IN RE STATE OF TEXAS,
Relator
On Petition for Writ of Mandamus to
Probate Court No. 1, Travis County, Texas
PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE SUPREME COURT OF TEXAS:
Pursuant to Rule 52 of the Texas Rules of Appellate Procedure,
the State of Texas seeks relief from the probate courts order purporting
to facially invalidate Article I, section 32 of the Texas Constitution and
Texas Family Code sections 2.401 and 6.204 (hereinafter, Texas marriage
law).

The unnecessary and overly broad ruling could create the

impression that the order was intended to have the statewide effect of
striking down Texas marriage law. The ruling was an abuse of discretion
because of its unnecessary overbreadth and its failure to defer to this
Courts resolution of serious constitutional issues that are currently
under review in this Court. See In the Matter of the Marriage of J.B. &

H.B., No. 11-0024; State v. Naylor, No. 11-0114; In re State of Texas, No.
11-0222.
As a result of the probate courts ruling, the state of the law in Texas
has been needlessly cast into doubt. Immediate relief from this Court is
necessary to avoid the legal chaos that would follow if the probate courts
broadly worded ruling is mistakenly interpreted as authorization for the
creation or recognition of same-sex marriages in Travis County or
throughout the State. Recent events in Utah and Michigan demonstrate
the gravity, reach, and imminence of this harm absent mandamus relief.
There is also no adequate remedy by appeal, given the looming
harm and inability of the parties to file an interlocutory appeal or stay
the effect of the order. The Court should grant the petition for writ of
mandamus and order the trial court to vacate or stay its ruling that Texas
marriage law is unconstitutional pending final appellate resolution of the
issue.
STATEMENT OF FACTS
Stella Marie Powell resided in Travis County and died intestate in
June 2014. MR Tab A at 1-2. Two of her surviving siblings filed an
heirship proceeding in statutory probate court in Travis County, seeking

a determination of heirship and distribution of property because Powell

was not married and had no children.

MR Tab A at 2.

Sonemaly

Phrasavath filed a contest to the application for heirship, claiming she

had a common law or informal marital relationship with Powell. MR
Tab B at 1. Phrasavath sought a fifty percent share of Powells separate
real property, and all of Powells community property and separate
personal property. MR Tab B at 2. The siblings filed special exceptions
and a motion to dismiss, contending that the Article I, section 32 of the
Texas Constitution and sections 2.401 and 6.204 of the Texas Family
Code prohibit the recognition of same-sex marriage. MR Tab C at 3.
Following a hearing on February 17, 2015, the probate court denied the
siblings motion to dismiss and also held that:
Texas Family Code 2.401, Texas Family Code 6.204(b), and
Article I, 32 of the Texas Constitution are unconstitutional
insofar as they restrict marriage in the State of Texas to a
union of a man and woman and prohibit the creation or
recognition of marriage to same-sex couples, because such
restrictions and prohibitions violate the Due Process Clause
and the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.

MR Tab F at 1. The order contains no language staying the constitutional

ruling, nor does it expressly limit its scope to the particular case at hand.
MR Tab F at 1.
ARGUMENT
Mandamus relief is available where (1) a court abuses its discretion
and (2) there is no adequate remedy by appeal. In re Prudential Ins.
Co. v. Am., 148 S.W.3d 124, 135-36 & n.47 (Tex. 2004) (citing Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992)). A trial court has no discretion
in determining what the law is or in applying the law to the facts, even if
the law is somewhat unsettled. In re Jorden, 249 S.W.3d 416, 424 (Tex.
2008, orig. proceeding) (footnote omitted). Accordingly, an error of law
constitutes a clear abuse of discretion. Id.; Prudential, 148 S.W.3d at
135.
I.

THE TRIAL COURT ABUSED ITS DISCRETION BY PURPORTING TO

ISSUE AN ORDER WITH STATEWIDE APPLICATION THAT FACIALLY
INVALIDATES STATE LAW WHILE THOSE ISSUES ARE PENDING IN
THIS COURT.
The trial court committed a clear abuse of discretion because it

broadly declared state law unconstitutional without staying the effect of

its ruling while this issue is pending in this Court. A courts failure to
stay a constitutional ruling while that issue is pending in this Court is a

clear abuse of discretion. See Order, In re Marriage of A.L.F.L. and

K.L.L., No. 04-14-00364-CV (Tex. App.San Antonio, July 8, 2014)
(staying a trial court ruling that Texas marriage law is unconstitutional
because the issues to be presented in this appeal are similar to those
issues pending before the Texas Supreme Court, i.e., the constitutionality
of Texas marriage law under article I, section 32 of the Texas
Constitution and section 6.204 of the Texas Family Code).
The constitutional issues addressed in the probate courts order are
the same issues under review by this Court in In re Marriage of J.B and
H.B, No. 11-0024, Naylor v. Daly, No. 11-0114, and In re State of Texas,
No. 11-0222, all of which are fully briefed and were argued on November
5, 2013. These cases address whether article I, section 32 of the Texas
Constitution and Texas Family Code section 6.204 violate the federal
constitution.1 Due to the nearly identical constitutional issues in play,
the probate court clearly abused its discretion by failing to stay its ruling.
The courts constitutional ruling must be vacated or stayed to allow this
Court to decide these issues on a statewide basis.

Although these cases do not concern Texas Family Code section 2.401, an
adjudication of the constitutionality of Article I, section 32 of the Texas Constitution
and Texas Family Code section 6.204 will also resolve the validity of section 2.401.

II.

ABSENT MANDAMUS RELIEF, THE COURTS UNNECESSARILY

BROAD ORDER THREATENS SERIOUS, IMMINENT HARM.
The probate courts order, if left undisturbed, threatens to produce

a host of legal and practical problems that undermine the public interest
in predictable and clear legal rules. While the probate courts jurisdiction
extends only to the parties before it, the broad sweep of the courts order
may lead other parties, courts, and county clerks to mistakenly believe
that Texass marriage laws have been invalidated for all purposes,
clearing the way for the creation and recognition of same-sex marriages
in Travis County or throughout the State.
Innumerable practical problems may arise if the trial courts ruling
is ultimately reversed but same-sex couples have mistakenly been
permitted to marry based on the courts needlessly broad constitutional
ruling. And unless this Court or the U.S. Supreme Court ultimately find
a constitutional violation, any marriages created on the basis of the
probate courts ruling will cease to exist if the States definition of
marriage is upheld.
These problems are real, not theoretical. In Utah, for example,
same-sex couples married within hours of a district courts decision to
enjoin application of Utahs same-sex marriage ban. Kitchen v. Herbert,
6

No. 2:13-CV-217, 2013 WL 6834634, at *1 (D. Utah Dec. 23, 2013). The
district court and the Tenth Circuit denied Utahs stay motions, but the
Supreme Court granted a stay, restoring the enforceability of Utahs
marriage law during the appeal. But even after that decision was stayed
by the Supreme Court, the federal government has chosen to recognize
the same-sex marriages entered into while the order was in place,
creating legal uncertainty and practical confusion about the status of
those marriages. Charlie Savage & Jack Healy, U.S. to Recognize 1,300
Marriages Disputed by Utah, N.Y. TIMES (Jan. 10, 2014), available at
http://nyti.ms/1E490so.
Similar problems arose in Michigan when a federal court struck
down Michigans marriage law, but refused to stay the effect of its
judgment. See DeBoer v. Synder, No. 2:12-cv-10285, 2014 WL 1100794
(E.D. Mich. Mar. 21, 2014). The Sixth Circuit granted a stay less than
one day later, restoring the validity of state marriage law, but in the
interim 321 same-sex couples obtained marriage licenses and at least 299
couples were married. Kathleen Gray & Gina Damron, Federal Appeals
Court Extends Freeze on Michigan Gay Marriages, DETROIT FREE PRESS
(March 25, 2014), available at http://on.freep.com/17PJonj.

III. THERE IS NO ADEQUATE REMEDY BY APPEAL BECAUSE THE HARM

IS IMMINENT AND NO INTERLOCUTORY APPEAL IS AVAILABLE.
There is no adequate remedy by appeal from the probate courts
order because the harm from the order could occur at any time and no
interlocutory appeal is available.

The probate courts order is

interlocutory and is not immediately appealable by the parties. See TEX.

CIV. PRAC. & REM. CODE 51.014(a); Bally Total Fitness Corp. v. Jackson,
53 S.W.3d 352, 355 (Tex. 2001) (explaining that section 51.014 should be
strictly construed as a narrow exception to the general rule that only
final judgments and orders are appealable (quotation marks omitted)).
Therefore, the parties could not seek immediate appellate relief, even if
they wanted to. The State has intervened in the case, but cannot appeal
the denial of a motion that occurred before it became a party. Any motion
for reconsideration of the courts order would take time, all the while
leaving the probate courts rulingand the uncertainty it createsin
place.

And because the harm is imminent, any later interlocutory

appellate remedy would be inadequate.

IV.

THE STATE HAS A JUSTICIABLE INTEREST IN THE OUTCOME OF

THE UNDERLYING PROCEEDINGS.
The State has a justiciable interest in the underlying case because

Texas law has been challenged and the State has a strong and wellrecognized interest in defending the validity of Texas law.2 See, e.g.,
Terrazas v. Ramirez, 829 S.W.2d 712, 721-22 (Tex. 1991) (recognizing the
Attorney Generals legitimate role in representing the State in a lawsuit
challenging the constitutionality of a Texas statute); In re Marriage of
J.B. & H.B., 326 S.W.3d 654, 661 (Tex. App.Dallas 2010, pet. filed)
(noting the States important right to be heard on the constitutionality
of its statutes); TEX. GOVT CODE 402.010, .021. As the chief legal
officer of the State, the Attorney General represents the State in civil
litigation, and has broad discretionary power in carrying out his
responsibility to represent the State. Perry v. Del Rio, 67 S.W.3d 85, 92
(Tex. 2001) (citing TEX. CONST. art. IV, 1, 22; TEX. GOVT CODE
402.021).
PRAYER
The Court should grant the petition for writ of mandamus.

The State intervened in the underlying case earlier today. Plea in Intervention,
Estate of Stella Marie Powell, No. C-1-PB-14-001695 (February 17, 2015).

Respectfully submitted.

KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
SCOTT A. KELLER
Solicitor General
/s/ Michael P. Murphy
MICHAEL P. MURPHY
Assistant Solicitor General
State Bar No. 24051097
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-2995
Fax: (512) 474-2697
michaelp.murphy@texasattorneygeneral.gov
COUNSEL FOR RELATOR

10

MANDAMUS CERTIFICATION
Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that
I have reviewed this petition and that every factual statement in the
petition is supported by competent evidence included in the appendix or
record. Pursuant to Rule 52.3(k)(l)(A), I certify that every document
contained in the appendix is a true and correct copy
/s/ Michael P. Murphy
Michael P. Murphy
Counsel for Relator

11

CERTIFICATE OF SERVICE
I certify that on February 17, 2015, the foregoing document was
served via File & ServeXpress or electronic mail upon counsel for real
parties in interest. A courtesy copy was also sent to counsel for real
parties in interest by electronic mail.
Craig Hopper
Brian T. Thompson
Hopper Mikeska
400 W. 15th Street, Suite 408
Austin, Texas 78701
512.615.6195
bthompson@hoppermikeska.com
Michael B. Knisely
Jason S. Scott
Osborne, Helman, Knebel, DeLeery
301 Congress Avenue, Suite 1910
Austin, Texas 78701
512.542.2042
mbknisely@ohkslaw.com
jsscott@ohkslaw.com
Douglas A. Booth
Law Offices of Douglas A. Booth
3801 S. Capital of Texas Highway, Suite 255
Austin, Texas 78704
dbooth@dboothlaw.com

12

The Respondent was served a copy by email and by U.S. Mail, sent
February 18, 2015.
Hon. Guy Herman
Judge of Probate Court No. 1, Travis County, Texas
Probate Court No. 1
1000 Guadalupe, Room 217
Austin, Texas 78701
Tel.: (512) 854-9258
Fax: (512) 854-4418
RESPONDENT

/s/ Michael P. Murphy

Michael P. Murphy
Counsel for Relator

13

CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this
brief contains 1759 words, excluding the portions of the brief exempted
by Rule 9.4(i)(1).

/s/ Michael P. Murphy

Michael P. Murphy
Counsel for Relator

14

APPENDIX AND RECORD

VERIFICATION
THE STATE OF TEXAS

s
s

COUNTY OF TRAVIS

Before me, the undersigned notary, on this day personally appeared Michael
P. Murphy, a person whose identity is known to me. After I administered an oath to
him, upon his oath he said the following:
"lVIy name is Michael P. Murphy. I am over twenty-one (21) years of age, of
sound mind, and am capable of making this affidavit. The facts stated in this affidavit
are within my personal knowledge and are true and correct. I am an attorney with
the Office of the Solicitor General, Office qf the Texas Attorney General, representing
Relator The State of Texas. I am licensed to practice in the State of Texas, and
prepared., with co-counsel, the Petition for Writ of Mandamus and mandamus record
and appe ndix, attached as the Appendix to the Petition. All of the documents in the
ies of the documents identified or true and
attached Appendix are true and correct
this action, as those documents exist in our
correct copies of the documents filed
t,

files or were transferred to me by

7th day of Feb

Signed

,2Q16.

Murphy, Affiant

SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this

15
17th day of Fe

Notary

in and for the State of

My commission expires:

le

LO

SYLVIA HERNANDEZ
Notrry Publlc
STATE OF TEXAS
Commlsslon Erp, APRIL 1, 2017

Not4ry wlteut Bon d

INDEX TO MANDAMUS APPENDIX AND RECORD

TAB
Application for Determination of Heirship and Issuance of Letters of
Independent Administration......................................................................... A
Contest to Applicants James Powell and Alice Husemans Application for
Determination of Heirship and Issuance of Letters of Independent
Administration and Counter-Application to Determine Heirship, for
Appointment of Dependent Administrator and Issuance of Letters of
Administration. ..................................................................................... B
Applicants James Powell and Alice Husemans Special Exceptions to,
and Motion to Dismiss, Sonemaly Phrasavaths Contest to
Applicants James Powell and Alice Husemans Application for
Determination of Heirship and Issuance of Letters of Independent
Administration and Counter-Application to Determine Heirship,
for Appointment of Dependent Administrator and Issuance of Letters
of Administration. .................................................................................. C
Sonemaly Phrasavaths Response to Special Exceptions and Motion to
Dismiss and Motion for Continuance. .................................................. D
Sonemaly Phrasavaths Supplemental Response to Special Exceptions and
Motion to Dismiss and Motion for Continuance. .................................. E
Order on Special Exceptions and Motion to Dismiss. .................................. F

Tab A

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

Tab B

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

Tab C

Filed: 10/15/2014 10:43:13 AM

Dana DeBeauvoir
Travis County Clerk
C-1-PB-14-001695
Debbie Mendez

Tab D

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
O

IA

IC

FF

N
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IA

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FF

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Tab E

IA

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Tab F

No. C-1-PB-14-001695
ESTATE OF
STELLA MARIE POWELL,
DECEASED

IN THE PROBATE COURT

NUMBER 1
TRAVIS COUNTY, TE~S(:~~-:,.:r.

ORDER ON SPECIAL EXCEPTIONS AND MOTION TO DISMiss

'f<Jtz~~~~:~;;', :,,

On this day, the Court considered Applicants James Powell and Alice Huseman's Speeiaf;.~5.~;:{-/;>
'
"'~t_~l(\_
!;;F
Exceptions to, and Motion to Dismiss, Sonemaly Phrasavath's (1) Contest to Applicants'
Application for Determination of Heirship and Issuance of Letters of Ipdependent
Administration and (2) Counter-application to Determine Heirship, for Appointment of
Dependent Administrator and Issuance of Letters of Administration (collectively, the "Special
Exceptions and Motion to Dismiss"). Having considered the Special Exceptions and Motion to
Dismiss, the response and supplemental response filed by Sonemaly Phrasavath, the arguments
of counsel, and all other papers on file in this matter, the Court hereby DENIES the Special
Exceptions in their entirety.

In denying the Special Exceptions, the Court fmds that Texas Family Code 2.401;
Texas Family Code 6.204(b), and Article I, 32 of the Texas Constitution are unconstitutional
insofar as they restrict marriage in the State of Texas to a union of a man and woman and
prohibit the creation or recognition of marriage to same-sex couples, because such restrictions
and prohibitions violate the Due Process Clause and the Equal Protection Clause of the
Fourteenth Amendment to the Unites States Constitution.

Signed on February

a,

2015.

-.