Gary David Bray and Texas Division, Sons of Confederate Veterans, Inc., and David Steven Littlefield v. Gregory L. Fenves, in His Capacity as the President of the University of Texas at Austin

ACCEPTED
06-15-00075-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/28/2015 11:30:07 PM
DEBBIE AUTREY
CLERK
No. 06-15-00075-CV
_______________________________________________
FILED IN
6th COURT OF APPEALS
IN THE TEXARKANA, TEXAS
12/29/2015 8:53:00 AM
SIXTH COURT OF APPEALS DEBBIE AUTREY
Clerk
at TEXARKANA
_______________________________________________
GARY DAVID BRAY, et al.,
v.
GREGORY L. FENVES
Appealed from the 53rd District Court of
Travis County, Texas
___________________________________________
APPELLANTS’ REPLY BRIEF
___________________________________________
/s/C.L. Ray /s/Kirk David Lyons
Texas Bar No. 00000034 Texas Bar No. 12743500
604 Beardsley Lane, Suite 100 Southern Legal Resource Center
Austin, Texas 78746 P.O. Box 1235
Tel. (512) 328-9238 Tel. (828) 669-5189
Fax (512) 857-0606 Fax (828) 669-5191
clray4523@hotmail.com kdl@slrc-csa.org
ATTORNEYS FOR PLAINTIFFS
December 28, 2015
APPELLANTS’ REPLY BRIEF
Page 1 of 37
TABLE OF CONTENTS
INDEX OF AUTHORITIES……………………………………………3
SUMMARY OF THE ARGUMENT………………………………......5
ARGUMENT……………………………………………………………..8
I. The District Court Has a Presumption of Jurisdiction
that Has Not Been Rebutted and Has Been
Affirmatively Exercised, Affording the District Court
Jurisdiction…………………………………………………..8
II. Plaintiffs Have Jurisdiction, Because the Trial Court
Failed to Adequately Consider that Plaintiffs Bray
and Littlefield Have Individual Standing…………….11
III. Plaintiffs Have Taxpayer Standing, Because
Defendant Violated Federal and State Law in
Removing the Monuments………………………………14
A. Defendant’s Removal of the Monuments Violated
the Terms of the Littlefield Bequest……………14
B. Defendant’s Removal of the Davis and Wilson
Monuments Violated the Veterans Memorial
Preservation and Recognition Act (18 U.S.C. §
1369)…………………………………………………17
C. Defendant’s Removal of the Davis and Wilson
Monuments Violated the Texas Government
Code, Sections 2261.501 and 2261.5011………19
IV. Plaintiffs Have Jurisdiction, Because the Trial Court
Failed Adequately to Consider that the Sons of
Confederate Veterans Has Associational Standing…23
V. Federal Precedents Relative to the Purpose and Effect
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of Monuments Can Be Construed to Provide that
Defendant’s Removal of the Monuments Was Unlawful
and Affords Jurisdiction to the Trial Court…………..25
PRAYERS...……………………………………………………………..35
CERTIFICATES………………………………………………………..37
INDEX OF AUTHORITIES
CASES
Abbott v. G.G.E., 463 S.W.3d 633
(Tex. App.—Austin Apr. 30, 2015)………………………..12-13
American Humanist Association v. Maryland-National Capitol
Park and Planning Commission,
No. DKC-14-0550 (D. Md. Nov. 30, 2015)……………….25, 26
City of Dallas v. Wright, 36 S.W.2d 973 (Tex. 1931)……………..10
Dealers Electrical Supply Co. v. Scoggins Construction Co., Inc.,
292 S.W.3d 650 (Tex. 2009)……………………………………19
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)………9
Dutcher v. Owens, 647 S.W.2d 948 (Tex. 1983)………………...…19
La Sara Grain v. First Nat’l Bank of Mercedes,
673 S.W.2d 558 (Tex. 1984)……………………………………19
Lemon v. Kurtzman, 403 U.S. 602 (1971)………………………….25
Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009)…..27
Powers v. First Nat’l Bank of Corsicana,
137 S.W.2d 839 (Tex. Civ. App. 1940)………………………..18
APPELLANTS’ REPLY BRIEF
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Powers v. First Nat’l Bank of Corsicana,
161 S.W.2d 273 (Tex. 1942)……………………………………18
Rodeheaver v. Alridge,
601 S.W.2d 51 (Tex. Civ. App.—Houston [1st Dist.] 1980,
writ ref’d n.r.e.)…………………………………………………20
Salazar v. Buono, 559 U.S. 700 (2010)……………………………...27
Sweeney v. Jefferson. 212 S.W.3d 556
(Tex. App.—Austin 2006, no pet.)…………………..8, 9, 10, 11
Texas Ass’n of Business v. Texas Air Control Board,
852 S.W.2d 440 (Tex. 1993)……………………………………23
Texas State Bd. of Chiropractic Examiners v. Abbot,
391 S.W.3d 343 (Tex. App.—Austin 2013, no pet.)…………19
Utah Highway Patrol Association v. American Atheists, Inc.,
132 S. Ct. 12 (2011)………………………………………………27
Van Orden v. Perry, 545 U.S. 677 (2005)…………………25, 27, 33
STATUTES
Texas Government Code § 2166.501………………….7, 9, 10, 20, 35
Texas Government Code § 2166.5011………………..7, 9, 10, 21, 35
U.S. Code, 18 U.S.C. § 1369,Veterans Memorial Preservation
And Recognition Act…………………………………….7, 17, 35
U.S. Code, 38 U.S.C. § 1501(3),
Regarding Confederate Veterans……………………………..17
RULES
Texas Rule of Appellate Procedure 38.3, Reply Brief………………5
APPELLANTS’ REPLY BRIEF
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Texas Rule of Appellate Procedure 38.6(c), Time to File Briefs….5
OTHER AUTHORITIES
4 William V. Dorsaneo III,
Texas Litigation Guide § 4.05[2]………………………….19, 20
Texas House Concurrent Resolution 38, 77th Leg. (2001)………33
SUMMARY OF THE ARGUMENT
Appellants/Plaintiffs timely submit this reply brief in
conformity with Rules 38.3 and 38.6(c). Tex. R. App. Pro.
All jurisdictional issues have already been decided by the
Austin Third Court of Appeals in Sweeney v. Jefferson, 212
S.W.3d 556 (Tex. App.—Austin 2006, no pet.). District courts are
courts of general jurisdiction. As courts of general jurisdiction,
district courts enjoy a presumption of subject-matter jurisdiction
unless a contrary showing is made. The Texas Supreme Court, as
the Sweeney court noted, has determined that once a court has
obtained jurisdiction over a cause of action as incidental to its
general jurisdiction, the court may exercise any power necessary
to administer justice to preserve the subject matter of the
litigation and make its judgment effective. And this Court, like
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the trial court, derives its jurisdiction from the exercise by the
trial court of its jurisdiction—specifically, the denial of Plaintiffs’
application for temporary injunction. Notwithstanding Plaintiffs’
efforts to point out error, the trial court erred by sustaining the
plea to the jurisdiction and went on to exercise jurisdiction by
denying the preliminary injunction. Plaintiffs filed a motion to
void the trial court’s denial of the preliminary injunction, which
was overruled by operation of law and which was again, an
exercise of jurisdiction. The trial court had a fair opportunity to
void its order denying the temporary injunction, and thereby
affirming that it did not have subject-matter jurisdiction. At this
juncture, the trial court has now exercised its jurisdiction in this
matter and no language in the Monument Protection Act divests
the Court of jurisdiction.
Plaintiffs submit that Sweeney, supra, is on all fours and
dispositive of the instant matter. However, should this Court
consider other points, Plaintiffs would begin by correcting a
significant and material misstatement by Defendant regarding
Plaintiff’s position as to the legitimate placement of the Jefferson
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Davis monument. In his brief, Defendant submits that all
Plaintiffs agree that the University’s removal of monuments to
the Briscoe Center is a sufficiently prominent position: “It is a
place where [the monument] needs to be. . . .” Defendant’s
Response Brief at 15, FN 8. Nothing could be further from the
truth. Defendant misrepresents the record by selectively citing
from it. The entire citation from the reporter’s record quotes
Plaintiffs’ attorney Kirk Lyons as follows: “[The Briscoe Center]
is a place where it needs to be, but from an artistic and structural
point of view, you are dealing with fire to move those statues.
They need to be restored right where they are and we will offer
testimony as to exactly how and why that should be done. They
don’t need to go anywhere.” (RR 2:26-27). Plaintiffs have never
agreed that the Briscoe Center is a proper site for the South Mall
monuments, and Defendant’s material misrepresentation of the
reporter’s record cannot be considered inadvertent.
Next, with reference to the statutes involved, the
University’s removal of the monuments was not merely improper;
the removal was illegal. Plaintiffs will show that the monument
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removal was illegal under the Federal Veterans Memorial
Recognition and Protection Act (18 U.S.C. § 1369); the Texas
Monument Protection Act §§ 2166.501 and 2166.5011; and under
an analysis that determines whether a memorial is a veterans’
memorial and, therefore, warrants protection under Texas or
federal law.
Since the University unlawfully removed the Davis and
Wilson monuments and expended public funds in doing so, the
trial court acquired jurisdiction in this matter under the taxpayer
exception to standing. The trial court also acquired individual
and associational standing.
ARGUMENT
I. THE DISTRICT COURT HAS A PRESUMPTION OF
JURISDICTION THAT HAS NOT BEEN
ADEQUATELY REBUTTED AND HAS BEEN
AFFIRMATIVELY EXERCISED AFFORDING THE
DISTRICT COURT JURISDICTION.
The issues in this cause have already been decided in
Sweeney v. Jefferson, 212 S.W.3d 556 (Tex. App.—Austin 2006,
no pet.). This decision is dispositive of the instant matter,
because the clear parallels of fact and law between the two cases
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are nearly identical. Sweeney involved removal of memorial
plaques from the Texas Supreme Court Building. In reversing
the 53rd District Court, the Austin Third Court of Appeals found
that the trial court erroneously denied subject-matter jurisdiction
to the Texas Division, Sons of Confederate Veterans, Inc. who
sought declaratory judgment and a temporary injunction against
the Texas Building and Procurement Commission for violation of
the Texas Government Code §§ 2166.501 and 2166.5011 by
unlawfully removing memorial plaques from the Texas Supreme
Court. Id. at 557-60. While the facts vary a bit, the issues before
this Court are indistinguishable from those before the Sweeney
court.
Texas districts courts are courts of general jurisdiction.
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000);
Sweeney, 212 S.W.3d at 562. “As courts of general jurisdiction,
Texas district courts enjoy a presumption of subject-matter
jurisdiction unless a contrary showing is made.” Sweeney, 212
S.W.3d at 562 (citing Dubai, 12 S.W.3d at 75).
APPELLANTS’ REPLY BRIEF
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As noted in Sweeney, sections 2166.501 and 2166.5011 of
the Monument Protection Act are silent as to the district court’s
jurisdiction in this matter, i.e., whether the removal of the
veterans’ monuments was illegal or not or whether a remedy is
available for violation of the statute. Sweeney, 212 S.W.3d at
564.
A court, once having obtained jurisdiction of a cause of
action as incidental to its general jurisdiction, may
exercise any power, or grant any writ, including the
writ of injunction, necessary to administer justice
between the parties to preserve the subject matter of
the litigation, and make its judgment effective.
Sweeney, 212 S.W.3d at 564.
Since sections 2166.501 and 2166.5011 do not divest the
district court of jurisdiction, Defendant does not challenge the
truth of Plaintiffs’ jurisdictional arguments under 2166.501 and
2166.5011, but instead relies solely on his contention that the
sections are inapplicable. No other rebuttals to the presumption
of jurisdiction are in the record, and accordingly, the district court
has acquired jurisdiction to decide this matter.
The Texas Supreme Court has determined that once a court
has obtained jurisdiction of a cause of action as incidental to its
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general jurisdiction, the court may exercise any power necessary
to administer justice to preserve the subject matter of the
litigation and make its judgment effective. City of Dallas v.
Wright, 36 S.W.2d 973, 975 (Tex. 1931); Sweeney, 212 S.W.3d at
564. It is undisputed that the trial court did in fact exercise its
power of jurisdiction by denying Plaintiffs’ application for
temporary injunction. (CR 280). As set out in the introduction
above, Plaintiffs apprised the trial court of its error. The trial
court, however, denied Plaintiffs’ motion to void the trial court’s
order on the preliminary injunction by function of law, (CR 280),
thereby affirming the trial court’s exercise of jurisdiction. Had
the trial court voided the order denying the temporary injunction,
the trial court would have been affirming that it did not have
subject-matter jurisdiction. Because the trial court has exercised
its incidental jurisdiction in this matter and refused to deny its
exercise of incidental jurisdiction, the trial court has acquired
general jurisdiction in this matter. Sweeney, 212 S.W.3d at 564.
II. PLAINTIFFS HAVE JURISDICTION, BECAUSE THE
TRIAL COURT FAILED TO CONSIDER
ADEQUATELY THAT PLAINTIFFS BRAY AND
LITTLEFIELD HAVE INDIVIDUAL STANDING.
APPELLANTS’ REPLY BRIEF
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In addition, Defendant erroneously argues that Plaintiffs
Bray and Littlefield have not suffered a personal injury.
Defendant’s Brief at 6. Defendant alleges that Plaintiffs do not
plead “facts that sufficiently distinguish them from the general
public as to the damage alleged.” Id. at 7. This is wholly
inaccurate. Bray and Littlefield are descendants of Confederate
veterans and are members of the Texas Division, Sons of
Confederate Veterans, Inc. (SCV). Bray’s and Littlefield’s
personal affiliations with this Civil War commemorative
organization works to preserve historic memory and events that
are distinguished from those of the general populace. The SCV
has only about 2,800 members in Texas of a general population of
about 27 million. SCV members comprise a mere 0.01% of the
Texas population. Only 2800 people in Texas have distinguished
themselves from the general population to contribute to this
historic project to commemorate and honor their own personal
family stories through re-enacting historic events, remembering
significant persons, and preserving monuments. The SCV works
to ensure the maintenance of graves and cenotaphs of American
APPELLANTS’ REPLY BRIEF
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war dead that the general populace does not know about, does not
care about, and often misconstrues. Bray and Littlefield have not
merely suffered personal injuries, due to the University’s removal
of the Davis monument to the Civil War, but more accurately
unique injuries due to their own direct family participation in
historic events that the Davis monument commemorates. This
personal, actual injury is concrete and particularized and
establishes the first prong of the Abbott test for individual
standing. Abbott v. G.G.E., et al., 463 S.W.3d 633 (Tex. App.—
Austin Apr. 30, 2015).
Bray’s and Littlefield’s personal injuries are fairly
traceable to Defendant’s unlawful conduct, because the
University illegally removed the Davis and Wilson monuments,
as will be shown below and has been shown in Plaintiff’s Brief,
completing the second prong of the test for individual standing.
Id. Plaintiffs’ injuries are likely to be redressed by the requested
relief, sufficing the third prong of the test for individual injury.
Id. The trial court failed to adequately consider Plaintiffs’
individual standing in the matter, which provides the trial court
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with jurisdiction.
III. PLAINTIFFS HAVE TAX-PAYER STANDING
BECAUSE DEFENDANT VIOLATED FEDERAL
AND STATE LAW IN REMOVING THE
MONUMENTS.
A. Defendant’s Removal of the Monuments Violated
the Terms of the Littlefield Bequest.
Defendant erroneously argues that President Fenves had
“full authority to remove, relocate, or alter the statues in
question.” Defendant’s Brief at 8. Defendant provides a
disingenuous construction of Maj. Littlefield’s Will that proposes
“the President of the University is authorized to change the
location of the statues, so long as they are given prominence
wherever they are located.” Id. at 9. The testator’s intent was
never to retain authority in the University President in
perpetuity as to the location of the monuments, and such
allegation is not merely spurious, but also purposefully
misleading.
Maj. Littlefield’s Will expressly provided for the veterans
monuments to be placed on the University’s South Mall and no
where else. The Will states: “The arrangement given here is
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suggested to the committee as being the best; however, they are
authorized to change it or the design suggested if they wish,
giving prominence however to the statues of the men named
above.” (CR 212).
The testator authorized changes to the arrangement or the
design of the monuments, not to the site of the monuments. The
phrase “place of prominence” refers to a prominent place within
the design. The Will makes provision of a grand arch, which was
modified into the Littlefield Fountain and the accompanying
veterans’ monuments. Id. Thus, Maj. Littlefield provided
authorization to modify the arrangement of the monuments on
the same site that everyone involved in the project had always
and only contemplated. For instance, the design of the arch was
changed into a fountain, but the placement was on the same site
as the arch. The University recently moved one outdoor
monument to an indoor location a mile and a half away from all
other monuments in the complex. The second monument was
removed with no plans for its return or other use. The
University’s assertion that it can dismember monuments of a
APPELLANTS’ REPLY BRIEF
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single complex and scatter them categorically extinguishes the
testator’s intent in his Will.
Moreover, the testator gave authorization to a design
committee. Id. The three-member committee was expressly
named: Will C. Hogg of Houston, Texas; H.A. Wroe of Austin,
Texas; and whoever was the President of the University of Texas
at the season of construction and final placement. The testator
does not give authorization to the University of Texas, nor to the
President alone, nor in perpetuity. The design committee
accomplished its purpose and wound down its business, having
placed the monument complex in its current location in
perpetuity.
The University admits in pre-litigation documents that the
only place the testator intended the monuments to be placed was
on the South Mall. (CR 179-81). No other location was ever
contemplated by anyone involved in the design, construction,
and placement of the monuments. Id. The testator’s and donor’s
intent as expressed in his Will, the sculptor’s design as expressed
in his plans, and the architect’s placement as expressed and
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realized in the present landscape of monuments from the Main
Building to the Littlefield Fountain point to the fact that these
veterans’ monuments were always and only intended to be
placed prominently on the University’s South Mall and nowhere
else. (CR 179).
Even if Defendant did have authority to remove the
monuments, such authority in the Littlefield Will does not
exempt Defendant from the requirements of federal and Texas
law that protects veterans’ monuments.
B. Defendant’s Removal of the Davis and Wilson
Monuments Violated the Veterans Memorial
Preservation and Recognition Act (18 U.S.C. § 1369).
The Davis and Wilson monuments were dedicated to
American veterans, as provided under 38 U.S.C. § 1501(3).
Defendant’s removal of the Davis and Wilson monuments
violated the Veterans Memorial Preservation and Recognition
Act:
(a) Whoever, in a circumstance described in subsection
(b), willfully injures or destroys, or attempts to injure
or destroy, any structure, plaque, statue, or other
monument on public property commemorating the
service of any person or persons in the armed forces of
the United States shall be fined under this title,
APPELLANTS’ REPLY BRIEF
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imprisoned not more than 10 years, or both.
(b) A circumstance described in this subsection is that
(1) in committing the offense described in
subsection (a), the defendant travels or causes to
travel in interstate or foreign commerce, or uses
the mail or an instrumentality of interstate or
foreign commerce. . . .
18 U.S.C. § 1369.
Defendant willfully injured the Davis and Wilson
monuments by illegally removing the monuments from public
view on the University’s South Mall. Defendant unlawfully
removed the monuments from public view. The monuments
commemorated the service of two persons in the Armed Forces of
the United States, the Commanders-in-Chief of American Armies.
In unlawfully removing the monuments, Defendant used
the mail or other instrumentality of interstate commerce,
including but not limited to e-mail or other forms of electronic
communication, to communicate with and enter into a contract
with Jerome Patrick Sheehy of Vault Fine Art Services, who
removed the veterans’ monuments. (RR 2:95-97).
Defendant violated the Veterans Memorial Preservation
and Recognition Act by entering into a contract via the mail or
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other instrumentality of interstate commerce and injured the
Davis and Wilson monument by removing them. This violation of
federal law, paid for with the expenditure of public funds, gave
the trial court jurisdiction by means of the taxpayer exception to
standing.
The Court’s consideration of the Veterans Memorial
Preservation and Recognition Act is an issue of first impression.
C. Defendant’s Removal of the Davis and Wilson
Monuments Violated the Texas Government Code,
Sections 2166.501 and 2166.5011.
Statutes related to the same general subject matter and
with the same general object or purpose are in pari materia.
Texas State Bd. of Chiropractic Examiners v. Abbot, 391 S.W.3d
343, 348-50 (Tex. App.—Austin 2013, no pet.); see also 4 William
V. Dorsaneo III, Texas Litigation Guide § 4.05[2]. Whenever
possible, statutes in pari materia should be construed in the
same light in order to give full effect to their legislative intent.
Dealers Electrical Supply Co. v. Scoggins Construction Co., Inc.,
292 S.W.3d 650, 658 (Tex. 2009). Courts are also governed in
pari materia in construing subsections of the same legislative
APPELLANTS’ REPLY BRIEF
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act. Dutcher v. Owens, 647 S.W.2d 948, 949-51 (Tex. 1983).
Even where statutes are not in pari materia, courts will
generally construe statutes on the same subject matter to
harmonize them. La Sara Grain v. First Nat’l Bank of Mercedes,
673 S.W.2d 558, 565 (Tex. 1984).
Where both general and specific statutes cover the same
subject matter, the specific statute is a special law that
constitutes only a part of the legislative jurisdiction and is
probably covered by the general statute. Rodeheaver v. Alridge,
601 S .W.2d 51, 54 (Tex. Civ. App.—Houston [1st Dist.] 1980,
writ ref’d n.r.e.). Specific rules for the construction of general
and specific statutes apply. 4 Dorsaneo § 4.05[2].
Here, the subsections of the Monument Protection Act are
not examples of conflicting general and specific statutes, but
examples of complementary statutes, whose construction should
be harmonized. Subsection 501 concerns the identification, and
subsection 5011 concerns the identification and protection of
veterans’ monuments. Since no conflict, but overlap between
subsections exists, the Court should harmonize the two
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subsections and construe them as a whole.
The subsection 2166.501, on Monuments and Memorials,
defines veterans’ monuments as:
(a) A monument or memorial for Texas heroes of the
Confederate States of America or the Texas War for
Independence or to commemorate another event or
person of historical significance to Texans and this
state may be erected on land owned or acquired by the
state or, if a suitable contract can be made for
permanent preservation of the monument or memorial,
on private property or land owned by the federal
government or other states.
The second subsection, 2166.5011, Removal, Relocation, or
Alteration of a Monument or Memorial, defines veterans’
monuments as:
a) In this section, "monument or memorial" means a
permanent monument, memorial, or other
designation, including a statue, portrait, plaque, seal,
symbol, building name, or street name, that:
(1) is located on state property; and
(2) honors a citizen of this state for military or war-
related service.
(b) Notwithstanding any other provision of this code,
a monument or memorial may be removed, relocated,
or altered only:
(1) by the legislature;
(2) by the Texas Historical Commission;
(3) by the State Preservation Board; or
(4) as provided by Subsection (c).
Using the rule of statutory construction of in pari materia
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and harmonizing the two adjacent subsections, the definition of a
monument should reasonably be:
A permanent monument, memorial, or other designation,
including a statue, portrait, plaque, seal, symbol, building name,
or street name that: (1) is located on federal, state, or private
property, and (2) honors a citizen of this state for military or
war-related service, or a person of historic significance to Texans
and this state, including but not limited to (1) Texas heroes of
the Confederate States of America, (2) the Texas War for
Independence, or (3) to any other event of historic significance to
Texans and this state.
Using this harmonization of subsections, when Defendant
removed the monuments without authorization from a
competent state agency with authority to remove monuments,
violated the Texas Monument Protection Act. The Davis
monument was a permanent monument or statue, located on
state property that honored a person of historic significance to
Texans and this state. The Wilson monument was a permanent
monument or statue, located on state property that honored a
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person of historic significance to Texans and this state.
Defendant’s expenditure of government funds to remove
the monuments without proper statutory authority violated the
Monument Protection Act and provided the trial court with
jurisdiction in this matter.
Defendant ignored the terms of the Littlefield Bequest in
removing the Davis and Wilson monuments; Defendant entered
into a contract through an instrumentality of interstate
commerce, expending public funds to do so, and violated federal
law designed to protect veterans’ monuments and Texas law to
protect veterans’ and historic monuments. Defendant’s illegal
expenditure of public funds in violation of law gives Plaintiffs’
taxpayer standing in this matter as an exception to the general
rule to show a particularized injury for standing.
IV. PLAINTIFFS HAVE JURISDICTION, BECAUSE
THE TRIAL COURT FAILED TO CONSIDER
ADEQUATELY THAT THE SONS OF
CONFEDERATE VETERANS, INC., HAS
ASSOCIATIONAL STANDING.
Defendant erroneously contends that this Court should use
the test used in Texas Association of Business v. Texas Air
APPELLANTS’ REPLY BRIEF
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Control Board in the instant matter. 852 S.W.2d 440, 447 (Tex.
1993). Defendant’s Brief at 9. Texas Association of Business
(TAB) is distinguished from this matter, because TAB concerned
a business association, charged with civil penalties, sought a
declaratory judgment challenging the enabling statutes of two
state agencies as conflicting with the open courts and jury trial
provisions of the Texas Constitution. Here, in contrast, we have a
non-profit organization attempting to enjoin a state institution of
higher education from violating state and federal law and then
seeking declaratory judgment of these violations. The general
test for associational standing is appropriate here, because the
purpose and interests of the SCV are the same as those of Bray
and Littlefield. Defendant’s attempt to utilize a test for standing
from a precedent is irrelevant absent Defendant’s showing that
his proposed test is applicable to the instant matter. The facts
from Texas Association of Business require the use of a standing
analysis materially distinguishable from the facts in the instant
matter.
SCV and Defendant have a real controversy as to the
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placement of the veterans’ monuments that will be actually
determined by the Court’s declaratory judgment as to whether
the monuments were illegally removed. These two elements of
the general associational standing test were met, which afforded
the trial court jurisdiction.
V. FEDERAL PRECEDENTS RELATIVE TO THE
PURPOSE AND EFFECT OF MONUMENTS CAN
BE CONSTRUED TO PROVIDE THAT’S REMOVAL
OF THE MONUMENTS WAS UNLAWFUL AND
AFFORDs JURISDICTION TO THE TRIAL COURT.
In Van Orden v. Perry, the U.S. Supreme Court handed
down an opinion affirming the constitutionality of the Ten
Commandments monument at the Texas Capitol in Austin. 545
U.S. 677, 697-98 (2005). The court used the legal-judgment test
to determine whether a passive monument violates the
Establishment Clause of the federal Constitution. Id. at 700. A
court “must take account of context and consequences measured
in light of [the] purposes” of the Establishment Clause. Id. (J.
Rehnquist). Subsequent courts have applied the Van Orden test,
the Lemon test, Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971),
or a hybrid of both. American Humanist Association v.
APPELLANTS’ REPLY BRIEF
Page 25 of 37
Maryland-National Capitol Park and Planning Commission, No.
DKC-14-0550 (D. Md. Nov. 30, 2015).
The very recent case of American Humanist was handed
down on November 30, 2015, after plaintiffs filed their brief.
American Humanist provides the most thorough analysis of a
veterans’ monument using both Van Orden and Lemon tests to
determine whether a veterans’ monument had a religious purpose
or effect. Plaintiffs applied to amend their brief subsequent to
filing, because plaintiffs felt a duty to the court to inform as to
this pertinent case.
The monument at issue in American Humanist was a 20-
foot-high cross, placed at a major highway intersection. Id. The
monument was placed by the American Legion, a prominent
veterans’ organization and had been present since 1919. Id. The
monument was placed on city property. Id. The monument was
dedicated to the slain American soldiers of World War I, the
Secretary of the Navy was the keynote speaker at the
monument’s dedication, and the monument has been used to
commemorate veterans ever since the dedication. Id. The
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monument has been marked with express wording that the
monument was dedicated to veterans and soldiers. Id. Other
monuments in the park with the memorial cross were also
dedicated and used to commemorate veterans. Id.
The American Humanist Association brought suit against
the public landowner of the park and cross in 2014.1 Id. The
association alleged that the cross had a predominant purpose and
primary effect that endorsed religion rather than promoted the
commemoration of veterans and war dead. The issue as to what
the purpose and effect of an expressly constructed veterans’
monument is pertinent to the instant matter.
Plaintiffs have reviewed other U.S. Supreme Court cases
that have followed Van Orden’s test for passive monuments,
1 Title to the land was at some point transferred to the state. Id.
2 Most of the inscriptions on the monument complex are not in the record.
3 The citation certainly applies to the seventeen monuments and twenty-one
historical monuments on the Capitol grounds; however, plaintiffs suggest
that because the University South Mall was physically aligned with the
dome of the Texas Capitol, the free space along University Avenue, the
Littlefield Fountain, the other South Mall veterans’ monuments, and the
Texas Tower, the University aesthetically and culturally aligned itself and
the Littlefield monuments as an extension of the commemorative effect of
the Capitol monuments that compose Texas identity. Just such a
commemorative extension was created on the National Mall in Washington,
D.C., when Washington planners built the Lincoln Memorial and extended
the Mall by one mile to the Memorial. Indeed, the building of the Littlefield
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including: Utah Highway Patrol Association v. American
Atheists, Inc., 132 S. Ct. 12 (2011) (whether memorial crosses
along Utah highways for state troopers killed in the line of duty
impermissibly endorsed religion); Salazar v. Buono, 559 U.S. 700
(2010) (whether a cross on a mountain park impermissibly
endorsed religion); Pleasant Grove City, Utah v. Summum, 555
U.S. 460 (2009) (whether a city could permissibly exclude a
monument to Summum from a park with other monuments).
The veterans’ monuments at the University of Texas at
Austin and their commemorative expression of veterans’
sacrifices can be identified under modified Van Orden and Lemon
tests. These federal determinations of the purpose and effect of
veterans’ monuments would most likely construe the University’s
removal of the veterans’ monuments as violations of law that
have conferred jurisdiction on the trial court.
A monument on public land is a veterans' monument, if it
was erected with the predominant purpose of commemorating one
or more, named or unnamed, American or Texas veterans and the
monument has the primary effect of commemorating such
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American or Texas veterans.
The predominant purpose of a monument shall be
determined by considering the circumstances of construction and
design of the monument; payment for land, materials, and work
of the monument; the monument's express purpose, as evidenced
by inscriptions on or near the monument itself; and
contemporaneous reports of the construction and dedication of the
monument.
The primary effect of the monument shall be determined by
whether an informed, reasonable observer would view the
monument as commemorating American or Texas veterans. An
informed, reasonable observer is aware of the purpose, context,
and history of the events giving rise to the commemoration
expressed through the monument. The issue is not whether any
person might be offended by the monument, nor whether some
people might be offended, but rather what would the informed,
reasonable person think about the monument.
The primary effect of the monument is determined by the
prima facie writing or engravings on or near the monument,
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whether the monument expressly memorializes service members,
whether the monument is placed singly or in a complex with
other monuments or structures as a whole and what the complex
expresses, what uses the monument—and its complex if placed
within one—has been put, and how long the monument has stood.
The predominant purpose of the University monuments was
to commemorate American and Texas veterans. The Davis
monument is undisputed to be a monument to a Confederate
veteran. In an act of national reconciliation, Congress declared
that Confederate veterans are American veterans. 38 U.S.C. §
1501(3). Jefferson Davis, as Commander-in-Chief of the
Confederate Armies, is an American veteran of the Civil War and
an American veteran and hero of the Mexican War. Woodrow
Wilson, as Commander-in-Chief of the American Armies in World
War I, is also an American veteran.
The construction of the monuments was funded and
designed by a private benefactor of the University of Texas,
George Washington Littlefield, who had as his primary, express
purpose to commemorate American history, but especially the
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American Civil War. (CR 210-12, 235). The University admits
that Maj. Littlefield created the monuments in order for
“students to honor in a solemn place those who had hitherto
served and died in the nation’s wars.”. . . (CR 180). In addition to
the monuments, Maj. Littlefield bequeathed the funds for the
purchase of scholarly materials on the history of the South, the
endowment of a scholarly chair in American history, and the
publication of a volume on American history. Id. All these
individual bequests are provided for in a single paragraph of Maj.
Littlefield’s Will, paragraph no. 1 of the thirty-six paragraphs in
the Will. Id. The circumstances of the design and construction of
the monument support the claim that the Jefferson Davis and
Woodrow Wilson monuments were established to commemorate
American veterans of the Civil War and World War I.
Maj. Littlefield donated the funds for the design and
construction of the monuments, and he did so expressly to
commemorate American and Texas veterans. (CR 210-12, 235).
Inscriptions on the pedestals of the monuments expressly
commemorate Jefferson Davis and Woodrow Wilson as
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commanders-in-chief of American Armies in the Civil War and
World War I, respectively. (CR 176). Further inscriptions
commemorate Davis and Wilson for their service to the United
States and the nations of the world.
Contemporaneous reports of the construction and
dedication of the monuments are not in the record.
The evidence on the record supports plaintiffs’ claim that
the Davis and Wilson monuments’ primary purpose is to
commemorate American veterans of the Civil War and World
War I.
The primary effect of the monuments has been to
commemorate American and Texas veterans. An informed,
reasonable observer would view the monuments as
commemorating American and Texas veterans. The prima facie
inscriptions on the monuments commemorate American and
Texas veterans. One of the inscriptions around the Littlefield
Foundation reads:
To the men and women of the Confederacy who fought
with valor and suffered with fortitude that states’ rights
be maintained and who, not dismayed by defeat nor
discouraged by misrule, builded [sic] from the ruins of a
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devastating war a greater south. And the men and
women of the nation who gave of their possessions and
of their lives that free government be made secure to
the people of the earth this memorial is dedicated.2
(CR 181).
Inscriptions on monument pedestals above the fountain
further commemorate individual veterans, (CR 179): Robert E.
Lee, Commander of the Army of Northern Virginia; and General
Albert Sidney Johnston, Commander of the Army of Tennessee.
The complex of monuments on the University’s South Mall
includes the buildings surrounding the statues and extends to the
Texas Capitol. From the Texas Tower and UT Main Building, to
the Biblical inscription that “Ye Shall Know the Truth and the
Truth Shall Set You Free,” to the monument to George
Washington, Commander-in-Chief of the Revolutionary Armies,
through the Littlefield veterans’ monuments, the Littlefield
Fountain, and to the Texas Capitol and Capitol monuments, the
entire complex of University and Capitol is placed as a single
complex. The complex comprises the largest museum of free-
standing sculpture in Texas, and the purpose of the UT-Capitol
2 Most of the inscriptions on the monument complex are not in the record.
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Monument Complex is to commemorate the “people, ideals, and
events that compose Texan identity.”3 Van Orden, 545 U.S. at
681; Tex. H. Con. Res. 38, 77th Leg. (2001). The people, ideals,
and events that compose Texas identity as evidenced by the
Capitol monuments extends to the Littlefield veterans’
monuments. The removal or defacing of one of the monuments
impairs the complete expression of the assembled Texas
monuments. If each monument in the Capitol-UT complex is a
page in a book that physically expresses one event in Texas
history, whether tragedy or triumph, the removal of even one
monument is an erasure of Texas history that should not be
countenanced by this Court.
The Littlefield monuments have stood at the University for
3 The citation certainly applies to the seventeen monuments and twenty-one
historical monuments on the Capitol grounds; however, plaintiffs suggest
that because the University South Mall was physically aligned with the
dome of the Texas Capitol, the free space along University Avenue, the
Littlefield Fountain, the other South Mall veterans’ monuments, and the
Texas Tower, the University aesthetically and culturally aligned itself and
the Littlefield monuments as an extension of the commemorative effect of
the Capitol monuments that compose Texas identity. Just such a
commemorative extension was created on the National Mall in Washington,
D.C., when Washington planners built the Lincoln Memorial and extended
the Mall by one mile to the Memorial. Indeed, the building of the Littlefield
Monuments coincided with the construction of veterans’ monuments across
the country.
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eighty-four years. While individuals have expressed dismay at
the presence of the veterans’ monument, the University has
undertaken no action to remove the monuments until Pres.
Fenves recently took office. Indeed, the University elected to
accept the benefits of the Littlefield bequest ninety-five years ago.
The Davis and Wilson monuments have reached the age of
antiquity for monuments in Texas, and their uncontested
acceptance, construction, placement, and longevity support the
theory that the informed, reasonable observer would think that
the monuments’ primary effect is to commemorate American and
Texas veterans.
Since the predominant purpose and primary effect of the
Davis and Wilson monuments is to commemorate American and
Texas veterans, the Court should find that the statues are
protected under §§ 2066.501 and 2066.5011 of the Texas
Government Code.
PRAYERS
1. Plaintiffs request that this Court reverse the trial
court’s grant of the plea to the jurisdiction and
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remand for a trial on the merits;
2. Plaintiffs request that this Court order the trial court
to apply the proposed Veterans’ Monument Protection
analysis to preserve the veterans’ monuments at
issue;
3. Plaintiffs request that this Court find that Defendant
violated the federal Veterans Memorial Preservation
and Recognition Act (18 U.S.C. § 1369) and refer this
finding to the United States Attorney for the Western
District of Texas, Austin Division;
4. Plaintiffs request that this Court order Defendant to
return the Davis and Wilson monuments back to their
original pedestals at the University promptly; and,
5. Plaintiffs ask that the Court award them reasonable
attorney fees, costs of court, and such and further
relief to which plaintiffs are justly entitled to.
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RESPECTFULLY SUBMITTED,
/s/C.L. Ray /s/Kirk David Lyons
Texas Bar No. 00000034 Texas Bar No. 12743500
604 Beardsley Lane, Suite 100 Southern Legal Resource Center
Austin, Texas 78746 P.O. Box 1235
Tel. (512) 328-9238 Tel. (828) 669-5189
Fax (512) 857-0606 Fax (828) 669-5191
clray4523@hotmail.com kdl@slrc-csa.org
ATTORNEYS FOR PLAINTIFFS
December 28, 2015
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer
using Microsoft Word 2011 and contains 5,380 words, as
determined by the computer software’s word-count function,
excluding the sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(3).
/s/C.L. Ray
ATTORNEY FOR PLAINTIFFS
Dated: December 28, 2015
CERTIFICATE OF SERVICE
I certify that a copy of Plaintiffs’ Brief was served on Pres.
Greg L. Fenves, President of the University of Texas at Austin,
through counsel of record, Adam N. Bitter, Office of the Texas
Attorney General, P.O. Box 12548, Austin, Texas 78711, by e-
mail at adam.bitter@texasattorneygeneral.gov and the Court’s
electronic filing system on December 28, 2015.
/s/C.L. Ray
ATTORNEY FOR PLAINTIFFS
APPELLANTS’ REPLY BRIEF
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