      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00024-CV



   Central Texas Nudists; Robert A. Morton, Jr.; and Christine A. Morton, Individually
           and as next friend of Robert A. Morton, III, Rebecca E. Morton, and
                     Charles G. Morton, Minor Children, Appellants

                                                v.

             County of Travis and Lower Colorado River Authority, Appellees




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
     NO. 95-11383, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING




               The question presented is whether county park rules that ban children’s access to a

clothing-optional park violate the United States and Texas Constitutions. See U.S. Const. amend.

I, XIV; Tex. Const. art. I, §§ 3, 8, 19, 27. Central Texas Nudists, Robert A. Morton, Jr., and

Christine A. Morton, individually and as next friend of Robert A. Morton, III, Rebecca E. Morton,

and Charles G. Morton, minor children (collectively, “appellants”) filed suit against Travis County

and the Lower Colorado River Authority, seeking a declaratory judgment and permanent injunctive

relief. This appeal arises from a judgment denying appellants’ motion for summary judgment and

granting the motions for summary judgment of Travis County and the Lower Colorado River

Authority. We affirm the district court’s judgment.



                                             FACTS
                 McGregor Park1 is a public park owned by the Lower Colorado River Authority and

situated on Lake Travis in Travis County. The county has managed McGregor Park since the 1980s

when it leased the park from the Lower Colorado River Authority. In 1995, Travis County

promulgated two park rules for McGregor Park, which were adopted by the Commissioners Court

of Travis County. Recognizing that nude sunbathing occurs in the park, the Commissioners (1)

restricted access to the park to persons over the age of eighteen and (2) directed:


          Any authorization or consent to the nude display of children and the nude display of
          adults with children present under the age of eighteen in this park will be treated as
          a violation of the law and park rules. Violators and parties to such violations will be
          investigated and prosecuted if possible.


Because appellants are “naturists” who believe that engaging in nude social activities with their

children instills values of body acceptance and other naturist values, they contend that these new rules

infringe on their constitutional rights of, inter alia, freedom of expression and privacy, by prohibiting

their children from accompanying them to the park.

                 After considering each party’s motion for summary judgment, the district court

granted the motions filed by Travis County and the Lower Colorado River Authority and denied

appellants’ motion.

                                      STANDARD OF REVIEW

                 Because the propriety of a ruling on a motion for summary judgment and the

constitutionality of a rule raise questions of law, we review these matters de novo. Texas Med. Liab.

Trust v. Zurich Ins. Co., 945 S.W.2d 839, 842 (Tex. App.—Austin 1997, writ denied); Armbrister



   1
       McGregor Park is also known locally as Hippie Hollow.

                                                    2
v. Morales, 943 S.W.2d 202, 205 (Tex. App.—Austin 1997, no writ) (citing Barber v. Colorado

Indep. Sch. Dist., 901 S.W.2d 447, 450 (Tex. 1995)). The proper inquiry on appeal is whether the

defendant, in seeking summary judgment, fulfilled its initial burden of establishing that no genuine

issue of material fact exists and that judgment should be granted as a matter of law. City of Houston

v. Clear Creek Basin Auth., 589 S.W.2d 671, 675-79 (Tex. 1979). Evidence is viewed in the light

most favorable to the non-movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.

1985). Similarly, all reasonable inferences are indulged and any doubts resolved in favor of the non-

movant. Id. at 549.

               When each party has filed a motion for summary judgment and the district court has

granted one motion while denying another, we review the summary judgment proof presented by each

party, determine all questions presented, and “render such judgment as the trial court should have

rendered.” Commissioners Court v. Agan, 940 S.W.2d 77, 80 (Tex. 1997). “[W]hen there are

multiple grounds for summary judgment and the order does not specify the ground on which the

summary judgment was granted, the appealing party must negate all grounds on appeal.” State Farm

Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d 374, 381 (Tex. 1993); accord Carr v. Brasher, 776

S.W.2d 567, 569 (Tex. 1989). If the appellant fails to negate each ground on which the judgment

may have been rendered, we must uphold the summary judgment. See Carr, 776 S.W.2d at 569.

               In this case, each party filed a motion for summary judgment and the district court

granted appellees’ motions. Because the trial court did not specify the grounds on which it rendered

judgment, we must affirm the judgment if any of the grounds advanced in the motions are

meritorious.




                                                 3
                                           DISCUSSION

               In their first issue, appellants challenge the constitutionality of the two Travis County

park rules, contending that they are facially invalid. See U.S. Const. amend. I, XIV; Tex. Const. art.

I, §§ 3, 8, 19, 27. 2 Constitutional claims must be examined by looking at the rights of the class of

people who are being excluded from a particular activity. City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985). Here, both rules exclude individuals under eighteen years of age from

entering McGregor Park.

               Appellants assert that the park rules violate naturist families’ right to equal protection

under the United States Constitution. U.S. Const. amend. XIV. Appellants argue that by prohibiting

minor children from entering the park, even when accompanied by their parents, the rules distinguish

between classes of individuals on the basis of whether minor children accompany them to McGregor

Park.

               The Equal Protection Clause requires that all similarly situated persons be treated

alike. Id. Courts perform an equal protection inquiry “if the challenged government action classifies

or distinguishes between two or more relevant groups.” Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir.




  2
        Appellants assert arguments based on their rights to equal protection, privacy, substantive due
process, and freedom of expression and of association under the Texas Constitution. See Tex. Const.
art. I, §§ 3, 8, 19, 27. With respect to their privacy and substantive due process arguments,
appellants direct our attention to several Texas cases, which acknowledge a parent’s fundamental
right to direct the upbringing of a child. See, e.g., In re Doe 5, 19 S.W.3d 346, 376 (Tex. 2000)
(Hecht, J., dissenting); Patterson v. Planned Parenthood, 971 S.W.2d 439, 447 (Tex. 1998)
(Gonzalez, J., concurring); In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994); Wiley v. Spartlan,
543 S.W.2d 349, 352 (Tex. 1976). Our review of these opinions, however, reveals no discussion
implicating the Texas Constitution. We decline to address the issues raised by appellant under the
Texas Constitution because appellants’ briefs have not provided argument or citations to authorities
to support these arguments. See Tex. R. App. P. 38.1(h).

                                                   4
1993). Because the rules treat two groups of individuals differently, we must subject both rules to

an equal protection inquiry.

                  The first step of this inquiry requires us to determine what burden of justification must

be satisfied by looking at the interests affected. Zablocki v. Redhail, 434 U.S. 374, 383 (1978).

When a law affects individuals in a suspect classification differently or implicates a fundamental right,

the law must be examined under a strict scrutiny analysis. Plyler v. Doe, 457 U.S. 202, 216-17

(1982); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40 (1973). Appellants do not argue

that these rules treat persons in a suspect classification differently. For the strict scrutiny test to apply

here, we must conclude that these rules implicate a fundamental right.

                  Appellants first assert that the park rules interfere with their fundamental right to direct

the upbringing of their children. See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v.

Nebraska, 262 U.S. 390 (1923). Appellants characterize the rights at issue as involving an

individual’s personal choice in matters of family life. See Griswold v. Connecticut, 381 U.S. 479,

482-84 (1965). Appellants further contend that a parent’s right to raise a child free of state

interference is within the constitutional protection of privacy secured by the Fourteenth Amendment.

See id. at 484.

                  Appellants also direct our attention to the Supreme Court’s recent opinion in Troxel

v. Granville, asserting that it supports their position. Troxel v. Granville, 530 U.S. 57, 120 S. Ct.

2054 (2000). In Troxel, the Court considered a state statute that permitted any person, including a

grandparent, to petition for visitation rights at any time. Id. at 2057. The Court affirmed the state

supreme court’s holdings that “‘parents have a right to limit visitation of their children with third

persons’” and that “between parents and judges, ‘the parents should be the ones to choose whether


                                                      5
to expose their children to certain people or ideas.’” Id. at 2059 (quoting In re Smith, 969 P.2d 21,

31 (Wash. 1998), aff’d sub nom, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000)). We read

Troxel as affirming a parent’s right to direct the upbringing of a child. Id. at 2059-60 (“[T]he Due

Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make

decisions concerning care, custody, and control of their children.”).

               But these parental rights are not absolute. See, e.g., Ingraham v. Wright, 430 U.S.

651 (1977) (no parental right to demand approval before corporal punishment is inflicted by public

school teachers and administrators); Planned Parenthood v. Danforth, 428 U.S. 52 (1976) (no

parental right to veto a minor’s decision to terminate a pregnancy); Runyon v. McCrary, 427 U.S.

160 (1976) (no parental right to educate children in private segregated academies); Kite v. Marshall,

661 F.2d 1027 (5th Cir. 1981) (no parental right to send children to summer athletic camps). In Kite

v. Marshall, the Fifth Circuit expressly acknowledged that “parental authority falls short of being

constitutionally absolute.” Kite, 661 F.2d at 1029. The court further opined that these cases

exemplify circumstances in which “the Supreme Court refrained from clothing parental judgment with

a constitutional mantle.” Id.

               While we agree with appellants’ contentions that the Fourteenth Amendment

encompasses a general right to direct the upbringing of children, we do not agree that these park rules

impede that right. Neither rule prohibits appellants from raising their children according to the

naturist philosophy. Rather, the rules impose a restriction on where the practice of this philosophy

may occur by establishing an age restriction for admittance to McGregor Park that applies to all

families, whether naturist or not. Consequently, we reject appellants’ arguments based on the rights

to privacy and to substantive due process. We now consider appellants’ arguments that the rules


                                                  6
implicate a fundamental right under the First Amendment, namely, the rights to freedom of

association and of expression.

                Appellants claim that both park rules infringe upon their right to associate with their

children. Appellants also assert that “the associational rights of parents and children are among those

intimate relationships which are protected by the First Amendment.”

                We recognize that appellants have a right to enter into and maintain certain intimate

human relationships. See, e.g., Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984)

(discussing two distinct lines of cases recognizing a right to associate, one related to certain intimate

human relationships and another “for the purpose of engaging in those activities protected by the First

Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion”);

Zablocki, 434 U.S. at 383-86 (marriage); Smith v. Organization of Foster Families, 431 U.S. 816,

844 (1977) (the raising and education of children); Moore v. East Cleveland, 431 U.S. 494, 503-04

(1977) (cohabitation with one’s relatives). However, we fail to see how either park rule infringes on

this right. The rules do not affect the ability of the Mortons or other naturist parents to associate with

their children, but regulate only where such associations may occur. These rules are analogous to the

ordinance in City of Dallas v. Stanglin which barred minors from certain dance halls. City of Dallas

v. Stanglin, 490 U.S. 19, 21 n.2 (1989).

                Appellants further assert that the park rules violate their right to expressive association

as recognized by the Supreme Court in Roberts v. United States Jaycees. Roberts, 468 U.S. at 617-

18. In that case, the Court acknowledged a right to associate for the purpose of engaging in those




                                                    7
activities protected by the First Amendment. Id. The issue, then, is whether the First Amendment

encompasses appellants’ activities at McGregor Park.

                  Appellants argue that their conduct at McGregor Park constitutes an expressive

activity and that the park rules violate their right to freedom of expression by impeding their ability

to engage in this conduct as a family. Appellants characterize their nude recreational and social

activities at McGregor Park as instilling values in their children in a safe public setting. On the record

before us, we find that appellants’ First Amendment right to expressive association does not

encompass their activities at the park.

                  The Supreme Court has acknowledged that nudity itself is not expressive conduct and

is not constitutionally protected. Erznoznick v. City of Jacksonville, 422 U.S. 205, 211 n.7 (1975)

(“Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part

of the whole work. In this respect, such nudity is distinguishable from the kind of public nudity

traditionally subject to indecent exposure statutes.” (internal citations omitted)); Barnes v. Glen

Theatre, Inc., 501 U.S. 560, 581 (1991) (Souter, J., concurring) (“[Nudity per se] is a condition, not

an activity . . . .”).

                  Appellants maintain that their naturist conduct at McGregor Park is entitled to First

Amendment protection because it constitutes more than “mere nudity.” At oral argument, appellants

directed our attention to the Supreme Court’s recent opinion in Boy Scouts of America v. Dale. Boy

Scouts of Am. v. Dale, __ U.S. __ , 120 S. Ct. 2446, 2452 (2000). In Dale, the Supreme Court

reviewed a decision by the New Jersey Supreme Court, which held that the state’s public

accommodations law required the Boy Scouts to admit Dale, an avowed homosexual, as an adult




                                                    8
member. Id. at 2449. The Court held that “applying New Jersey’s public accommodations law in

this way violates the Boy Scouts’ First Amendment right of expressive association.” Id.

               Appellants sought to analogize their activities at McGregor Park to those engaged in

by the Boy Scouts. While appellants and the Boy Scouts may share a common goal to instill values

in children, the manner in which these values are transmitted is distinguishable. The Boy Scouts, as

an organization, seeks to transfer its values to its members by “having its adult leaders spend time

with the youth members, instructing and engaging them in activities like camping, archery, and

fishing.” Id. at 2452. In contrast, appellants seek to convey their values to their children by engaging

in swimming, sunbathing, and other forms of recreation in the nude at McGregor Park. Of critical

importance to appellants is not the activity itself, but rather, the manner in which the activity is

conducted—in the nude and in public. We therefore find that this case is distinguishable from Boy

Scouts of America v. Dale.

               The protected activity that appellants claim in this case is identical to the one asserted

in South Florida Free Beaches v. City of Miami. South Fla. Free Beaches v. City of Miami, 734

F.2d 608, 608 (11th Cir. 1984). In that case, the plaintiffs argued that nude sunbathing in a public

area is the manner in which they advocate and communicate their philosophy that the human body

is wholesome and that nudity is not indecent to others. Id. at 609. The Eleventh Circuit rejected that

argument and held that nude sunbathing is not protected expression. Id. (“Stripped of constitutional

protection, nude sunbathing is subject to legitimate governmental proscriptions. Thus, we hold that

the [F]irst [A]mendment does not clothe these plaintiffs with a constitutional right to sunbathe in the

nude.”); accord Williams v. Kleppe, 539 F.2d 803, 806 n.9 (1st Cir. 1976) (sanctioning a ban on nude

sunbathing by stating, “[N]o rights of free speech can be said to have been involved here”). Likewise,


                                                   9
in Hang On, Inc. v. City of Arlington, the Fifth Circuit recognized, “‘[N]udity is protected as speech

only when combined with some mode of expression which itself is entitled to [F]irst [A]mendment

protection.’” Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1254 (5th Cir. 1995) (quoting South

Fla. Free Beaches, 734 F.2d at 610).

               Here, as in South Florida Free Beaches, appellants also seek to garner First

Amendment protection for their efforts to communicate their values that the human body is

wholesome and that nudity is not indecent to others.           Because the facts of this case are

indistinguishable from South Florida Free Beaches, we reach the same conclusion. For the reasons

stated in South Florida Free Beaches and Hang On, we decline to hold that nude sunbathing is

protected expression. Accordingly, we reject appellants’ First Amendment argument based on the

right to freedom of expression. In doing so, we also reject appellants’ argument that the park rules

impinge on their right to expressive association. Consequently, we conclude that the park rules do

not implicate a fundamental right under the United States Constitution.

               Having concluded that the strict scrutiny test does not apply here, we must now

identify whether an intermediate scrutiny or rational basis analysis is appropriate. On its face, the

government action in this case distinguishes between individuals based solely on age. Age distinctions

are subject to the rational relationship test. Gregory v. Ashcroft, 501 U.S. 452, 470-71 (1991)

(referencing Vance v. Bradley, 440 U.S. 93, 97 (1979); Massachusetts Bd. of Ret. v. Murgia, 427

U.S. 307, 314 (1976)).

               An analysis under the rational relationship test is deferential to the government.

Gregory, 501 U.S. at 470-71 (“In cases where a classification burdens neither a suspect group nor

a fundamental interest, ‘courts are quite reluctant to overturn governmental action on the ground that


                                                 10
it denies equal protection of the laws.’” (citation omitted)); Kite, 661 F.2d at 1030 (“A state action

viewed under the rational basis banner is presumed to be valid.”). The government must prove only

that the laws bear “some rational relationship to a legitimate state purpose.” Rodriguez, 411 U.S.

at 44; accord Gregory, 501 U.S. at 471. In examining a city ordinance imposing an age restriction

on admission to certain dance halls, the Supreme Court stated,


        [A] State does not violate the Equal Protection Clause merely because the
        classifications made by its laws are imperfect. If the classification has some
        ‘reasonable basis,’ it does not offend the Constitution simply because the classification
        ‘is not made with mathematical nicety or because in practice it results in some
        inequality.’


Stanglin, 490 U.S. at 26-27 (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)) (citations

omitted). We must now determine whether the park rules are justified by a legitimate state purpose.

                Appellants concede in their brief that they do not challenge Travis County’s “right to

regulate the activities of minors and ban unaccompanied minors from [McGregor Park].”3 Consistent

with their argument that the rules are subject to strict scrutiny, appellants charge instead that “the

rules are not narrowly crafted to the least restrictive manner.” Appellants claim that the curfew

ordinance in Qutb was upheld because the law established defenses for infractions of the ordinance,

including one that exempted minors accompanied by a parent or guardian. Unlike this case, however,


   3
        Courts have recognized that laws may treat minors differently from adults. Bellotti v. Baird,
443 U.S. 622, 634 (1979); Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993); Barber v. Colorado
Indep. Sch. Dist., 901 S.W.2d 447, 451 (Tex. 1995). Furthermore, the Supreme Court has
acknowledged that states have a “strong and legitimate interest in the welfare of its young citizens,
whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise
their rights wisely.” Hodgson v. Minnesota, 497 U.S. 417, 444 (1990). In addition, the Court has
recognized that a “[s]tate is entitled to adjust its legal system to account for children’s vulnerability
and their needs for ‘concern, . . . sympathy, and . . . paternal attention.’” Bellotti, 443 U.S. at 635
(quoting McKeiver v. Pennsylvania, 403 U.S. 528, 550 (1970)).

                                                   11
the court in Qutb applied a strict scrutiny analysis to the curfew ordinance after it “assume[d] without

deciding that the right to move about freely is a fundamental right.” Qutb, 11 F.3d at 492. We have

already concluded that the park rules at issue are not subject to a strict scrutiny analysis; therefore,

the government need not satisfy this requirement here.4 With no dispute that a legitimate state

interest exists for an age restriction, we conclude that the rules do not violate the Equal Protection

Clause. Accordingly, we overrule appellants’ first issue.


Exclusion of Summary Judgment Evidence

                In their second issue on appeal, appellants maintain that the district court erred when

it excluded two items of evidence submitted in support of their motion, namely, a videotape entitled

“Natural Summer” and incident reports from Pease Park compiled by the Austin Police Department

(“APD”). Appellants assert that this evidence rebutted Travis County’s contentions that McGregor

Park incident reports demonstrated an increased risk of sexual offenses against children and that these

rules were enacted to achieve legitimate state interests—to protect minors from exposure to sexual

offenses and victimization. The county objected to the APD reports because they detailed incidents

occurring at Pease Park, a city park, rather than a county park like McGregor Park. Because the

videotape related to parks other than McGregor Park and nudist practices not at issue here, Travis

County also objected to it on the grounds of relevance. The district court agreed with Travis County

and excluded the APD reports and the videotape as not relevant.

                We apply an abuse of discretion standard to the question of whether a district court

erred in excluding evidence. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).


   4
       The government need only show that a law is narrowly tailored to serve a compelling state
interest under a strict scrutiny analysis. Plyler v. Doe, 457 U.S. 202, 216-17 (1982).

                                                  12
A district court may be reversed under this standard only when a reviewing court finds that “the court

acted in an unreasonable or arbitrary manner.” Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226

(Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). “A

[district] . . . court abuses its discretion when it rules ‘without regard for any guiding rules or

principles.’” Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (quoting

Alvarado, 897 S.W.2d at 754).

                When seeking to reverse a judgment based on an improper evidentiary ruling, a

complaining party “need not prove that but for the error a different judgment would necessarily have

been rendered, but only that the error probably resulted in an improper judgment.” Alvarado, 897

S.W.2d at 753; accord Malone, 972 S.W.2d at 43. To prevail, the party must demonstrate that “the

judgment turns on the particular evidence excluded or admitted.” Alvarado, 897 S.W.2d at 753-54.

We review the entire record to determine whether a party has met this burden. Id. at 754. If any

legitimate basis exists to support a district court’s evidentiary ruling, then we must uphold the court’s

decision. Malone, 972 S.W.2d at 43; State Bar v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989)

(citing McCormick on Evidence § 52, at 131 (3d ed. 1984)).

                Rule 402 of the Texas Rules of Evidence states, “All relevant evidence is admissible,

except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed

pursuant to statutory authority.” Tex. R. Evid. 402. The rules define relevant evidence as “having

any tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401.

In other words, evidence is relevant if it tends to prove or disprove any fact of consequence, thereby

assisting the trier of fact. We have recognized that relevancy determinations should be left primarily


                                                   13
to the trial court, which relies on its own observations and experience. Corley v. State, 987 S.W.2d

615, 618 (Tex. App.—Austin 1999, no pet.) (citing Moreno v. State, 858 S.W.2d 453, 463 (Tex.

Crim. App. 1993)).

               Appellants maintain that the videotape was offered “to demonstrate the wholesome-

non-obscene-nature of social-familial nudity that is referenced in the Mortons’ affidavits” and “the

extent in which the naturist movement has made an enclave into the American culture.” Because

these purposes are not at issue in this case, the district court could have reasonably concluded that

the videotape did not involve facts of consequence and, as a result, was not relevant.

               Appellants also contend that the Pease Park incident reports were offered to rebut the

incident reports offered by Travis County “to establish that there were more reported sexual offenses

at . . . [McGregor Park], than other County parks.” Given Pease Park’s status as a city park, the

district court could have reasonably concluded that these reports were not relevant because they have

no bearing on how the rate of reported sexual offenses at McGregor Park compares to other Travis

County parks. We conclude that a legitimate basis exists to support the district court’s evidentiary

rulings on both exhibits of summary judgment evidence and overrule appellants’ second issue.


                                         CONCLUSION

               Because we conclude that both Travis County park rules are constitutional and that

the district court did not abuse its discretion in excluding summary judgment evidence, we affirm the

district court judgment.




                                                 14
                                            Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

Affirmed

Filed: December 7, 2000

Do Not Publish




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