in Re: Brandon Groves McReynolds, an Adult

Affirmed and Opinion Filed October 11, 2016
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-15-01254-CV
IN RE BRANDON GROVES MCREYNOLDS, AN ADULT
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 82,127
OPINION
Before Justices Bridges, Lang-Miers, and Whitehill
Opinion by Justice Whitehill
This appeal requires us to decide whether family code § 2.005(b)(8) authorizes Texas
courts to render sex change orders that judicially change a person’s gender identifier. The trial
court held that it does not. We agree because that statute (i) does not provide a procedure for
Texas trial courts to do so and (ii) has a definite and reasonable alternative meaning on its face.
Accordingly, we affirm the trial court’s order denying appellant’s petition for a sex change order
changing his1 gender identifier.
I. BACKGROUND
Appellant filed an “Original Petition for Change of Gender Identifier” alleging that he
was “transgendered by surgical reconstruction” and asking the trial court “to grant a change of
1
Appellant uses masculine pronouns to refer to himself.
Petitioner’s gender identifier from female to male.” He then asserted that Texas Family Code
§ 2.005(b)(8) authorized the court to award the requested relief. But he admitted that he was not
seeking a marriage license, and he did not say what he intended to do with the sex change order
if it were granted. His appellate brief, however, asserts that he would use a sex change order to
support an application to amend his birth certificate.2
The trial court heard the petition nine days after appellant filed it. The hearing was not
recorded. The court later rendered an order denying appellant’s petition reciting that: “There is
no binding authority which the Court can find which allows the Court to change gender identity
markers.”
Appellant timely appealed.
II. ANALYSIS
A. Issue Presented
Although appellant presents two appellate issues:
(1) “Does a Texas trial court have authority to change gender identity markers,” and
(2) “Did the trial court err by denying Appellant’s Original Petition to Change Gender
Identifier,” his brief asserts a single overarching issue: Did the trial court err by ruling that
family code § 2.005(b)(8) did not authorize the court to render a sex change order changing his
gender identifier?
Appellant supports his issue with essentially three arguments: (i) under applicable
statutory interpretation rules, § 2.005(b)(8) gives Texas courts authority to render sex change
2
Appellant’s petition did not explain what specifically he wanted the trial court to change. He did not explain what a “gender identifier” is.
He did not identify any specific record or legal status he wanted the trial court to order be changed or any recognized specific legal or equitable
relief he wanted the trial court to provide. He did not sue an opposing party. Nor did he ask the trial court to recognize an order from a foreign
jurisdiction. He did not invoke the declaratory judgment statute, nor did he identify any existing dispute or controversy with another person that
might support a declaratory judgment action.
To the extent appellant wants his birth certificate changed, as his appellate brief indicates, there is an administrative procedure for doing so.
See TEX. HEALTH & SAFETY CODE § 191.028. But appellant does not say that he has invoked that procedure and failed. Nor does he explain
why such an effort would be futile or what authority we would have to do something about it if it would be.
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orders, (ii) other Texas trial courts have rendered sex change orders, and (iii) opinions from other
Texas appellate courts support his position.
For the reasons that follow, we disagree with appellant’s arguments and conclude that
§ 2.005(b)(8) does not authorize Texas courts to render sex change orders.
B. Standard of Review
The issue presented turns on statutory construction, so our standard of review is de novo.
See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008).
C. Does family code § 2.005(b)(8) authorize Texas trial courts to render sex change
orders?
1. Statutory Construction Principles
Consistent with our constitutional role, we attempt to ascertain and effect the legislature’s
intent when we construe a statute. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25
(Tex. 2003). Our starting point is the plain and ordinary meaning of the statute’s words. Id. If a
statute’s meaning is unambiguous, we generally enforce it according to its plain meaning. Id.
We take the text’s plain meaning as the sole expression of legislative intent, “unless the
Legislature has supplied a different meaning by definition, a different meaning is apparent from
the context, or applying the plain meaning would lead to absurd results.” Abutahoun v. Dow
Chem. Co., 463 S.W.3d 42, 46 (Tex. 2015).
We read the statute as a whole and interpret it so as to give effect to every part. City of
San Antonio, 111 S.W.3d at 25.
We presume that the legislature knows the existing law when it enacts a statute. Dugger
v. Arredondo, 408 S.W.3d 825, 835 (Tex. 2013).
2. Construction of Family Code § 2.005(b)(8)
Section 2.005 is part of a broader statutory scheme governing the issuance of marriage
licenses. See generally TEX. FAM. CODE §§ 2.001–.014 (constituting Subchapter A, “Application
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for Marriage License,” within Chapter 2, “The Marriage Relationship”). Section 2.005(a) directs
the county clerks to require marriage license applicants to prove their identity and age. Section
2.005(b) contains 19 subsections listing the various documents that can be used for these
purposes. Section 2.005(b)(8) provides that “a court order relating to the applicant’s name
change or sex change” is one of those documents.
Specifically, § 2.005 provides as follows:
(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
applicant’s name change or sex change . . . .
Id. § 2.005.
Appellant argues that § 2.005(b)(8)’s reference to a sex change order implies that such
orders are remedies that Texas courts can render. For support, he relies on the premise that the
legislature is never presumed to do a useless act and, thus, a Texas court must be able to render
such an order. See Sneed v. Webre, 465 S.W.3d 169, 182 (Tex. 2015). He also cites the Code
Construction Act for the principles that “the entire statute is intended to be effective” and “a
result feasible of execution is intended.” See TEX. GOV’T CODE § 311.021(2), (4).
We disagree with appellant’s interpretation because (i) the legislature provided no
procedures governing a request for a sex change order and (ii) the statute has a definite and
reasonable meaning as written.
Specifically, reading § 2.005 as a whole and giving it its plain meaning, we conclude that
§ 2.005(a) directs the county clerks to require marriage license applicants to prove their age and
identity, and § 2.005(b) is an exclusive list of documents that an applicant can use for these
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purposes. It does not, however, purport to address a Texas trial court’s authority to render sex
change orders.
If the legislature intended to create a new justiciable right of action for a sex change
order, it would say so. For example, the statute would define the elements to be proved by a
petitioner, and it would spell out any special procedures it deemed necessary to govern such
actions. Had the legislature intended to create that statutory right, it would not have left it to the
judicial branch to define the right’s substantive elements and procedures.
Furthermore, § 2.005’s history and the larger context of the family code reinforce our
conclusion. Section 2.005(b)(8) was adopted in 2009. See Act of May 27, 2009, 81st Leg., R.S.,
ch. 978, § 2, 2009 Tex. Gen. Laws 2571, 2571. At that time, the family code already authorized
courts to render name change orders under the standards and procedures spelled out in Chapter
45, entitled “Change of Name.” See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex.
Gen. Laws 113, 120–22. Various sections within Chapter 45 govern venue, pleadings, citation,
the matters to be proved, and the order itself. See, e.g., FAM. §§ 45.001–.004, 45.101–.103. In
sum, Chapter 45 both defines the substance of the right to a name change and tells the judiciary
how to adjudicate that right.
By contrast, there is no statutory scheme expressly authorizing sex change orders or
establishing procedures for obtaining such an order. See In re Estate of Araguz, 443 S.W.3d 233,
245 (Tex. App.—Corpus Christi 2014, pet. denied) (“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 change.”). We presume that, when the legislature adopted
§ 2.005(b)(8), it knew there was already a statutory procedure for judicial name change orders
and no statutory procedure for judicial sex change orders. See Dugger, 408 S.W.3d at 835. The
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legislature’s decision not to establish a scheme for sex change orders comparable to Chapter 45
suggests a lack of legislative intent to grant Texas courts the authority to make such orders.
Contrary to appellant’s suggestion, our interpretation of § 2.005(b)(8) does not render its
reference to sex change orders useless, ineffective, or not feasible of execution. Specifically,
holding that § 2.005(b)(8) does not authorize Texas courts to render sex change orders does not
mean that such orders cannot exist elsewhere. Other states (or countries) may have procedures
for sex change orders. See, e.g., OR. REV. STAT. § 33.460(2) (“The court may order a legal
change of sex and enter the judgment in the same manner as that provided for change of name of
a person . . . .”); In re Heilig, 816 A.2d 68, 85–86 (Md. 2003) (holding that Maryland trial court
had jurisdiction to rule on a petition for sex change). Thus, § 2.005(b) means that sex change
orders from jurisdictions that provide for such orders are proper means for establishing a
marriage license applicant’s age or identity. By interpreting § 2.005(b)(8) to mean that foreign
sex change orders are acceptable proof of identity and age for marriage license applicants, we
both give it a meaning consistent with its plain language and avoid making its “sex change”
language superfluous.
3. Sex Change Orders in Texas Trial Courts
Appellant next observes that some Texas trial courts have issued sex change orders, as
evidenced by appellate court opinions mentioning that fact. See, e.g., In re N.I.V.S., No. 04-14-
00108-CV, 2015 WL 1120913, at *1 (Tex. App.—San Antonio Mar. 11, 2015, no pet.) (mem.
op.) (“On January 3, 2014, Villarreal obtained a court order changing his identity from female to
male.”) (footnote omitted); Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App.—San Antonio
1999, pet. denied) (noting that a trial court had granted a transsexual’s petition to amend sex
identification information on original birth certificate); see also In re Sandoval, No. 04-15-
00244-CV, 2016 WL 353010, at *1 & n.4 (Tex. App.—San Antonio Jan. 27, 2016, orig.
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proceeding [mand. pending]) (mem. op.) (mentioning same order that was mentioned in the In re
N.I.V.S. opinion). Appellant argues that we should therefore hold that § 2.005(b)(8) authorizes
trial courts to render sex change orders “to avoid forum shopping and inconsistent trial-level
outcomes.”
We disagree. Texas trial court decisions have no precedential effect. See In re
Expunction, 465 S.W.3d 283, 288 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (“The doctrine
of stare decisis requires us to treat as binding the precedents of higher courts, as well as our own
precedents . . . .”) (emphasis added). The fact that two Texas trial courts have issued sex change
orders carries no weight when we decide whether this Texas trial court correctly decided that
§ 2.005(b)(8) does not authorize such orders.
4. Appellate Decisions
Finally, we address the four appellate decisions appellant relies on. For the reasons
discussed below, these opinions do not change our conclusion that § 2.005(b)(8) should not be
interpreted as appellant suggests.
a. Littleton
Littleton was a wrongful death case. 9 S.W.3d at 225. Plaintiff Christie Littleton had
been born “a physically healthy male” but later underwent sex reassignment surgery. Id. at 224.
Littleton then married a man in Kentucky, and Littleton’s spouse died a few years later. Id. at
225. Littleton sued Dr. Prange for wrongful death, and Prange won summary judgment by
arguing that Littleton was still legally a man, Littleton’s marriage was therefore invalid, and
Littleton thus was not a wrongful death beneficiary entitled to sue. Id. at 225. The court of
appeals affirmed, holding that Littleton was legally a man despite the sex reassignment surgery
Littleton had undergone and despite a court order Littleton obtained during the wrongful death
litigation amending Littleton’s birth certificate as to name and sex. Id. at 231.
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Littleton does not support appellant’s position. Indeed, as previously noted, § 2.005(b)(8)
was not adopted until 2009—ten years after Littleton was decided. Although Littleton discusses
the health and safety code provision authorizing proceedings to amend a birth certificate,
appellant does not rely on that statute in this appeal—he relies solely on family code
§ 2.005(b)(8) as authority for Texas courts to issue sex change orders. Littleton is simply not on
point.
b. Sandoval and N.I.V.S.
The Sandoval and N.I.V.S. cases involve the same parties and arise from the same facts.
Diana Villarreal was born female but always identified as male. In re N.I.V.S., 2015 WL
1120913, at *1. Villarreal began a romantic relationship with Sandra Sandoval in 1994. Id.
Sandoval adopted two infants in 2002, and she and Villarreal raised the children as a family until
2011 when Sandoval and Villarreal separated. Id. Villarreal then filed suit to adjudicate
parentage and filed a voluntary statement of paternity. Id. While suit was pending, Villarreal
obtained a court order “changing his identity from female to male.” Id. (footnote omitted).
Sandoval filed a plea to the jurisdiction challenging Villarreal’s standing. Id. The trial
court granted the plea, and Villarreal appealed. Id. at *1–2. The court of appeals affirmed. As
pertinent to this case, the court rejected Villarreal’s arguments that he could establish standing
under family code provisions giving standing to “a man whose paternity of the child is to be
adjudicated” and to “a man alleging himself to be the father of a child.” Id. at *3–5. Standing
must exist when the plaintiff files suit, and because Villarreal did not obtain the sex change order
until later, he was not then a “man” within the meaning of those standing provisions. Id. The
court specifically said, “Because it is not necessary to the disposition of this appeal, we do not
comment on the effect, if any, of such a[ sex change] order.” Id. at *4 n.4. N.I.V.S. thus does not
support appellant’s position in the present case.
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Five days after the N.I.V.S. opinion, Villarreal filed a new suit to adjudicate parentage.
Sandoval, 2016 WL 353010, at *2. He asserted that he had standing as “a man alleging himself
to be the father of the minor children.” Id. Sandoval filed a plea to the jurisdiction challenging
Villarreal’s standing, and the trial court denied the plea. Id. Sandoval sought mandamus relief.
The court of appeals granted mandamus relief. The court first noted that the family
code’s standing provisions required Villarreal to be “a man whose paternity of the child is to be
adjudicated.” Id. at *3 (citing FAM. § 160.602(a)(3)). The court then concluded that a man
alleging “paternity” must assert that he is the biological father of the children, which Villarreal
did not contend. Id. at *4. Thus, he lacked standing. Id.
As to Villarreal’s sex change order, the Sandoval court said:
The Order Granting Change of Identity was not challenged in the
proceeding in which it was obtained. While the clear language of the Family
Code recognizes such an order as sufficient to provide proof of [Villarreal]’s
identity and age for the purpose of obtaining a marriage license, we conclude that
it is not sufficient to confer statutory standing to maintain a suit to adjudicate
parentage under subsection 160.602(a)(3). The Order Granting Change of
Identity is a recognized form of proof of [Villarreal]’s identity and age for the
purpose of obtaining a marriage license. It may also be sufficient to acknowledge
[Villarreal]’s legal status as a man.
Id. at *3. To the extent the Sandoval court said that a Texas court’s sex change order can be used
for § 2.005 purposes, that statement is dicta because no application for a marriage license was
involved in the Sandoval case. To the extent the Sandoval court implied that § 2.005(b)(8)
authorizes Texas trial courts to render sex change orders, that too would be dicta and we disagree
based on the statutory analysis set forth above.
c. Estate of Araguz
The Estate of Araguz case also does not change our analysis. In that case, Nikki Purdue,
who was biologically male, ceremonially married another man, Thomas Araguz, in Texas in
2008. 443 S.W.3d at 236. Purdue later underwent genital reassignment surgery. Id. Then
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Araguz died. Id. at 237. Probate litigation arose in which Araguz’s mother and ex-wife
contested the validity of his marriage to Purdue. Id. The trial court granted summary judgment
against Purdue, ruling that Araguz and Purdue’s marriage was a void same-sex marriage. Id. at
241. The court of appeals reversed, holding that there was a genuine fact issue as to Purdue’s
sex. Id. at 248–49. For support, the court relied principally on a doctor’s affidavit testimony that
Purdue was female when the ceremonial marriage took place. Id. at 248–49.
There was no Texas sex change order involved in the Estate of Araguz case. The court
used § 2.005(b)(8) to deal with a different problem: the San Antonio Court of Appeals’ opinion
in Littleton v. Prange. In Littleton, the court held that a marriage between a man and a person
who had been born male but undergone sex reassignment surgery was a void same-sex marriage
because both participants were legally male. 9 S.W.3d at 231. If the Estate of Araguz court had
followed Littleton, it would have had to affirm the summary judgment against Purdue. Instead,
the court concluded that § 2.005(b)(8) “legislatively overruled” Littleton and allows a person
who has had a “sex change” to marry a person of the opposite sex. 443 S.W.3d at 244–45.
Given the foregoing, it is apparent that Estate of Araguz did not decide whether
§ 2.005(b)(8) authorizes Texas courts to render sex change orders. Nevertheless, appellant
focuses on the court’s statement that § 2.005(b)(8) “clearly contemplates a court of competent
jurisdiction issuing an order recognizing and essentially certifying an individual’s change of sex,
much like a name change.” Id. at 245. But appellant does not address the next two sentences in
the opinion:
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 change. [citations omitted] 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.
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Id. As we have discussed, the existence of Chapter 45 and the absence of rules or standards for a
sex change order weigh against interpreting § 2.005(b)(8) to authorize Texas courts to render sex
change orders.
We further note that our holding does not conflict with Estate of Araguz. The Estate of
Araguz opinion says only that § 2.005(b)(8) contemplates “a court of competent jurisdiction
issuing” a sex change order; the court was not asked whether Texas courts have that jurisdiction,
and it did not purport to decide that question. This appeal squarely presents the question, and we
resolve it against appellant.
4. Conclusion
Based on fundamental statutory interpretation principles, we conclude that § 2.005(b)(8)
does not authorize Texas courts to render sex change orders. See In re Rocher, No. 14-15-
00462-CV, 2016 WL 4131626, at *2 (Tex. App.—Houston [14th Dist.] Aug. 2, 2016, no pet.)
(mem. op.) (concluding that § 2.005 did not authorize trial court to change petitioner’s “gender
designation”). The appellate decisions relied on by appellant do not persuade us otherwise.
We overrule appellant’s issues.
III. DISPOSITION
For the foregoing reasons, we affirm the trial court’s judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
151254F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN RE BRANDON GROVES On Appeal from the 196th Judicial District
MCREYNOLDS, AN ADULT Court, Hunt County, Texas
Trial Court Cause No. 82,127.
No. 05-15-01254-CV Opinion delivered by Justice Whitehill.
Justices Bridges and Lang-Miers
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered October 11, 2016.
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