                                                                                         ACCEPTED
                                                                                     06-15-00075-CV
                                                                          SIXTH COURT OF APPEALS
                                                                                TEXARKANA, TEXAS
                                                                                12/9/2015 4:37:31 PM
                                                                                    DEBBIE AUTREY
                                                                                              CLERK

                              No. 06-15-00075
                      _____________________________
                                                                   FILED IN
                                                            6th COURT OF APPEALS
                      IN THE COURT OF APPEALS                 TEXARKANA, TEXAS
                   FOR THE SIXTH JUDICIAL DISTRICT          12/10/2015 8:58:00 AM
                          TEXARKANA, TEXAS                       DEBBIE AUTREY
                     _____________________________                   Clerk


GARY DAVID BRAY AND TEXAS DIVISION, SONS OF CONFEDERATE
      VETERANS, INC., AND DAVID STEVEN LITTLEFIELD
                         Appellants,

                                      V.

 GREGORY L. FENVES, IN HIS CAPACITY AS THE PRESIDENT OF
          THE UNIVERSITY OF TEXAS AT AUSTIN
                         Appellee.
              ______________________________

    On Appeal from the 53rd Judicial District Court of Travis County, Texas
                      Cause No. D-1-GN -15-003330
                    ______________________________

                          BRIEF OF APPELLEE
                     ______________________________
 KEN PAXTON
 Attorney General of Texas                    MARIEL T. PURYEAR
                                              Texas Bar No. 24078098
 CHARLES E. ROY                               Assistant Attorney General
 First Assistant Attorney General             General Litigation Division
                                              P.O. Box 12548, Capitol Station
 JAMES E. DAVIS                               Austin, Texas 78711-2548
 Deputy Attorney General for Civil            (512) 475-4651 (PHONE)
 Litigation                                   (512) 320-0667 (FAX)

 ANGELA COLMENERO
 Division Chief

                       ATTORNEYS FOR APPELLEE
                      ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee

provides this Court with the following list of parties and the names and addresses of

all trial and appellate counsel:

  Appellants-Plaintiffs:                      Gary David Bray and Texas Division,
                                              Sons of Confederate Veterans, Inc., and
                                              David Steven Littlefield

  Trial and Appellate Counsel for             Kirk David Lyons, Attorney in Charge
  Appellants-Plaintiffs:                      P.O. Box 1235
                                              Black Mountain, N.C. 28711
                                              Tel. (828) 669-5189
                                              Fax (828) 669-5191
                                              kdl@slrc-csa.org

                                              C.L. Ray, Co-Counsel
                                              604 Beardsley Lane, Suite 100
                                              Austin, Texas 78746
                                              Tex. (512) 328-9238
                                              Fax (512) 857-0606
                                              Clray4523@hotmail.com

  Appellee-Defendant                          Gregory L. Fenves, President of the
                                              University of Texas at Austin

  Trial and Appellate Counsel for             Mariel T. Puryear
  Appellee-Defendant                          Assistant Attorney General
                                              Office of the Attorney General
                                              General Litigation Division
                                              P. O. Box 12548 – Capitol Station
                                              Austin, Texas 78711-2548
                                              (512) 475-4651
                                              (512) 320-0220 (fax)
                                              mariel.puryear@texasattorneygeneral.gov


                                         ii
                                                    TABLE OF CONTENTS



BRIEF OF APPELLEE.................................................................................................................... I
IDENTITY OF PARTIES AND COUNSEL ................................................................................. II
TABLE OF CONTENTS .............................................................................................................. III
TABLE OF AUTHORITIES ........................................................................................................ IV
STATEMENT OF THE CASE.................................................................................................... VII
STATEMENT REGARDING ORAL ARGUMENT................................................................ VIII
ISSUES PRESENTED............................................................................................................... VIII
BRIEF OF APPELLEE................................................................................................................... 1
I.       STATEMENT OF THE FACTS ............................................................................................ 2
II.      SUMMARY OF THE ARGUMENT ..................................................................................... 3
III.          ARGUMENT AND AUTHORITIES ................................................................................. 4
      A. Standard of Review .............................................................................................................. 4
      B. The Trial Court Properly Ruled That The Appellants Do Not Have Standing. ................... 5
         a.         No Individual Standing ................................................................................................... 5
              i.       No Tax-Payer Standing ............................................................................................... 7
         b.         No Associational Standing.............................................................................................. 9
         c.         Appellants have no standing to enforce a public charitable trust. ................................ 10
      C. Even If This Court Determined The Appellants Had Standing, President Fenves Did Not
         Violate The Terms Of The Littlefield Trust. ...................................................................... 14
      D. Texas Government Code § 2166.5011 Is Not Applicable To The Present Case. .............. 15
              i.       Jefferson Davis.......................................................................................................... 17
              ii.      Woodrow Wilson ...................................................................................................... 19
              iii.      Appellants’ Argument Regarding the Board of Regents Rules................................ 21
PRAYER ....................................................................................................................................... 22
CERTIFICATE OF SERVICE ..................................................................................................... 23
CERTIFICATE OF COMPLIANCE ............................................................................................ 24




                                                                          iii
                                     TABLE OF AUTHORITIES

Cases
Alexander v. City of Greenville,
   585 S.W.2d 333 (Tex. App—Dallas 1979) ...........................................................7
Allen v. Wright,
  468 U.S. 737 (1984) ...............................................................................................6
Bland Indep. Sch. Dist. v. Blue,
  34 S.W.3d 547 (Tex. 2000) .......................................................................... 5, 7, 8
Brown v. Todd,
  53 S.W.3d 297 (Tex. 2001) ....................................................................................7
Carroll v. City of Beaumont,
  18 S.W.2d 813 (Tex. Civ. App.—Beaumont 1929, writ refused) ......................13
Case v. Clarke,
 5 Fed. Case 254, 5 Mason 70 (1828)....................................................................18
City of El Paso v. Heinrich,
   284 S.W.3d 366 (Tex. 2009) ...............................................................................21
City of Houston v. Rhule,
  417 S.W.3d 440 (Tex. 2013) ..................................................................................4
Coffee v. William Marsh Rice University,
 403 S.W.2d 340 (Tex. 1966) ................................................................................11
County of Cameron v. Brown,
 80 S.W.3d 549 (Tex. 2002) ....................................................................................5
Daimler Chrysler Corp. v. Inman,
 252 S.W.3d 299 (Tex. 2008) ..................................................................................5
Gamboa v. Gamboa,
 383 S.W.3d 263 (Tex. App.—San Antonio, 2012) ..............................................13
Gray v. St. Matthews Cathedral Endowment Fund, Inc.,
 544 S.W.2d 488 (Tex. App.—Texarkana 1976, writ ref’d n.r.e.) ........... 11, 12, 13
Heckman v. Williamson County,
 369 S.W.3d 137 (Tex. 2012) ..............................................................................5, 6

                                                         iv
Hunt v. Washington State Apple Advertising Comm’n,
  432 U.S. 333 (1977) ............................................................................................10
Lightfoot v. Poindexter,
  199 S.W. 1152 (Tex. Civ. App.—Austin 1917, writ ref’d) .................................12
Meyer v. Holle,
  83 Tex. 623, 19 S.W.154 (1892) .........................................................................11
Morris v. Gilmer,
 129 U.S. 315 (1889) .............................................................................................18
Nacol v. State,
 792 S.W.2d 810, (Tex. App.—Houston [14th Dist.] 1991, writ
 denied) ..................................................................................................................12
Najvar v. Vasek,
  564 S.W.2d 202 (Tex. Civ. App—Corpus Christi, 1978) ...................................14
Peek v. Equip. Serv. Co. of San Antonio,
  779 S.W.2d 802 (Tex. 1989) ..................................................................................5
Reed v. Prince,
  194 S.W.3d 101 (Tex. App.—Texarkana 2006, pet. denied).................................5
Ritchie v. City of Fort Worth,
   730 S.W.2d 448 (Tex. App.—Fort Worth, 1987) .................................................7
South Tex. Water Auth. v. Lomas,
  223 S.W.3d 304 (Tex. 2007) ..................................................................................6
Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
  852 S.W.2d 440 (Tex. 1993) ................................................................. 6, 9, 10, 21
Tex. Dep’t of Parks and Wildlife v. Miranda,
  133 S.W.3d 217 (Tex. 2004) ..................................................................................5
Tex. Dep’t of Transp. V. City of Sunset Valley,
  146 S.W.3d 637 (Tex. 2004) ................................................................................17
Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849
  (Tex. 2002) .............................................................................................................6
Warth v. Seldin,
 422 U.S. 490 (1975) ...............................................................................................6

                                                             v
Whisenhunt v. Lippincott, 416 S.W.3d 689 (Tex. App.—Texarkana
 2015, no pet.) ........................................................................................................21
Statutes
Tex. Civ. Prac. & Rem. Code Ann. § 37.002 (West 2015) .......................................6
Tex. Gov’t Code Ann. § 2166.5011.........................................................................20
Tex. Gov’t Code Ann. § 2166.5011(a) ....................................................................16
Tex. Gov’t Code Ann. § 2166.5011(c) ....................................................................20
Tex. Gov’t Code Ann. § 2166.5011(a)(2) .................................................. 17, 19, 20
Tex. Gov’t Code Ann. § 311.026 .............................................................................16
U.S. Const. amend. XIV § 1 ....................................................................................19
Other Authorities
Black’s Law Dictionary (10th ed. 2014) ..................................................................17
The Fate of Texas: The Civil War and the Lone Star State, ed. Charles
  D. Grear (Fayetteville, AR: University of Arkansas Press, 2008),
  169 ........................................................................................................................20
Rules
Practice Before the Court, TEX. JUD. BRANCH (Dec. 9, 2015),
  http://www.txcourts.gov/6thcoa/practice-before-the-court.aspx. ..........................1
Tex. R. App. Pro. 33.1 .............................................................................................21




                                                              vi
                      STATEMENT OF THE CASE

Nature of the Case:         Plaintiffs sought to enjoin the University of
                            Texas at Austin from relocating two statues on
                            the campus of the university—one of Jefferson
                            Davis and one of Woodrow Wilson—alleging
                            that their removal violated the Texas
                            Government Code and the terms of the will of
                            Major George Washington Littlefield, who
                            donated the funds for the construction of the
                            statues.
Trial Court:                Cause No. D-1-GN-15-003330, in the 53rd
                            Judicial District Court, Travis County, Texas
Trial Court Disposition:    Defendant Gregory L. Fenves’ Plea to the
                            Jurisdiction (CR 57–67) was granted following
                            a hearing on August 27, 2015 (CR 268), and the
                            case dismissed. Plaintiffs Gary David Bray and
                            Texas Division, Sons of Confederate Veterans,
                            Inc., and David Steven Littlefield then filed
                            their Notice of Appeal (CR 274).




                                vii
                  STATEMENT REGARDING ORAL ARGUMENT

          Appellee President Fenves believes that the trial court’s decisions in this case

were based upon well-established principles of law and does not believe oral

argument is necessary. However, if this Court should grant Appellants’ request for

oral argument, Appellee President Fenves requests that he be permitted equal time

to argue the merits of the appeal.



                                  ISSUES PRESENTED

   I.        Whether the trial court properly ruled that the Appellants do not have
             standing because they have no particularized injury nor do they have
             taxpayer standing or associational standing.

   II.       Whether President Fenves, as trustee for the Littlefield trust—a public
             charitable trust—meets the terms of the trust by displaying the statues at
             the Briscoe Center for American History.

   III.      Whether the provisions of Texas Government Code §§ 2166.501 and
             2166.5011 are inapplicable to this case because their requirements only
             apply to statues that honor citizens of Texas.




                                             viii
                                    No. 06-15-00075
                            _____________________________

                           IN THE COURT OF APPEALS
                        FOR THE SIXTH JUDICIAL DISTRICT
                               TEXARKANA, TEXAS
                          _____________________________

GARY DAVID BRAY AND TEXAS DIVISION, SONS OF CONFEDERATE
      VETERANS, INC., AND DAVID STEVEN LITTLEFIELD
                         Appellants,

                                                V.

GREGORY L FENVES, IN HIS CAPACITY AS THE PRESIDENT OF THE
             UNIVERSITY OF TEXAS AT AUSTIN
                          Appellee.
               ______________________________

      On Appeal from the 53rd Judicial District Court of Travis County, Texas
                        Cause No. D-1-GN -15-003330
                      ______________________________

                               BRIEF OF APPELLEE 1
                           ______________________________

       1
          Appellee’s brief responds in all respects to Appellants’ brief received by this Court on
November 6, 2015. Appellants’ (pending) Motion for Leave to File Amended Brief is OPPOSED
by Appellant because the motion is tardy, and would occasion unjustified hardship for Appellee.
By motion, Appellants state that “[c]ounsel for appellants have conferred with counsel for appellee
on this motion.” Appellants’ Motion for Leave at 3. In fact, this consisted of a phone call from
counsel on December 7, 2015—just two days prior to Appellee’s filing deadline—notifying
Appellee for the first time that Appellants intended to file a motion seeking leave to amend their
brief. By the time of this December 7 phone call, Appellee’s brief was nearly complete, in time-
consuming reliance upon the Appellants’ brief filed four weeks earlier. Appellee further notes that
Appellants’ tardy motion to unconditionally amend their arguments disregards this Court’s goal to
“process all appeals promptly,” which governs this Court’s policy to disfavor mere extensions of
briefing deadlines (much less permit wholesale changes to appeal arguments by all parties). See
Practice      Before      the    Court,     TEX.      JUD.     BRANCH       (Dec.     9,     2015),
http://www.txcourts.gov/6thcoa/practice-before-the-court.aspx. For these reasons, Appellee
requests this Court DENY Appellants’ Motion to File Amended Brief. However, if Appellants are
granted leave to amend their brief, Appellee requests an opportunity to respond to Appellants’
Amended Brief.
                                                 1
       President Gregory L. Fenves (“President Fenves”) files this Brief requesting

this Court affirm the order of the lower court dismissing this lawsuit, and shows as

follows:

                         I.      STATEMENT OF THE FACTS2

       The statues made the subject of this suit were constructed with funds donated

as part of the final will and testament of Major George Washington Littlefield

(“Major Littlefield”) to the University of Texas at Austin. CR 74–75. Until the

hearing on Appellants’ Temporary Injunction and President Fenves’s Plea to the

Jurisdiction, the statues resided on the South Mall of the UT Austin campus. CR

109.

       In June 2015, following a student-led petition for the removal of the statues,

President Fenves announced the formation of the Task Force on Historical

Representation of Statuary (“Task Force”). CR 114. The Task Force was charged

with “identifying and evaluating options for dealing with controversial statues that

line the university’s Main Mall.” CR 114. The Task Force’s efforts culminated in

a Report which discussed the history of the statues as well as the five options

considered by the Task Force. CR 107–140. After submission of the Report to

President Fenves, he announced his decision that the best location for the Jefferson



       2
        References to the Clerk’s Record will be cited as “CR ___.” References to the Reporter’s
Record will be cited as “RR 2:___” for volume 2, and “RR 3___” for volume 3.
                                               2
Davis statue would be the Briscoe Center for American History, where Davis’s

unique role in the history of the American South could be “best explained and

understood through an educational exhibit.” CR 141. He further announced that,

“to preserve the symmetry of the Main Mall,” the statue of Woodrow Wilson, which

stood opposite of Davis, would be relocated to an as-yet undetermined “appropriate

exterior location on campus.” CR 142.

      Following this announcement, Appellants Gary David Bray (“Bray”) and

Texas Division, Sons of Confederate Veterans (“SCV”) and David Steven Littlefield

(“Littlefield,” and collectively with Bray and SCV, “Appellants”) filed suit against

President Fenves, in his Official Capacity as President of The University of Texas at

Austin, seeking to enjoin the University from removing the statues, as well as

declarations under the Uniform Declaratory Judgments Act that removal would

violate several provisions of the Texas Government Code. CR 33–34.

                     II.   SUMMARY OF THE ARGUMENT

      Appellants are unable to establish that they have standing to sue. They can

show no particularized injury to set themselves apart from the general public, and

do not meet the exception for taxpayer standing—therefore they cannot demonstrate

individual standing to sue. Nor can they show associational standing because none

of the individual members of the Sons of Confederate Veterans would have standing

to sue in their own right. Also, the donation of $250,000 in Major Littlefield’s trust


                                          3
constitutes a public charitable trust, and Appellants have no standing to enforce a

public charitable trust.

      Further, even if Appellants were able to establish standing to sue, President

Fenves, as a trustee of Major Littlefield’s trust (in his position of President of the

University of Texas) has not violated the terms of Major Littlefield’s trust; the trust

designates that the statues should be displayed in a place of prominence, and the

Appellants as well as President Fenves agree that the Briscoe Center for American

History is a place of prominence.

      Finally, because Texas Government Code section 2166.5011 strictly defines

“monument or memorial” as a “statue . . . that . . . honors a citizen of this state[,]”

and neither Jefferson Davis nor Woodrow Wilson were citizens of Texas, statues of

both men can be removed, relocated, or altered without implication of the

requirements of section 2166.5011.

                      III.   ARGUMENT AND AUTHORITIES

   A. STANDARD OF REVIEW

      An appellate court reviews a trial court’s ruling on a plea to the jurisdiction

de novo. City of Houston v. Rhule, 417 S.W.3d 440, 441 (Tex. 2013). In the appeal

of a case involving a challenge to the existence of jurisdictional facts, the appellate

court must consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised. See Tex. Dep’t of Parks and Wildlife v.


                                          4
Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 554–55 (Tex. 2000).

      If the pleadings “affirmatively negate the existence of jurisdiction, then a plea

to the jurisdiction may be granted without allowing the plaintiff an opportunity to

amend.” County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) (citing to

Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804–05 (Tex. 1989)); see

also Reed v. Prince, 194 S.W.3d 101, 104–05 (Tex. App.—Texarkana 2006, pet.

denied) (holding that where the plaintiff had affirmatively negated the trial court’s

jurisdiction over his claims, the trial court “properly sustained the [defendant’s] plea

to the jurisdiction without allowing [the plaintiff] an opportunity to amend”).

   B. THE TRIAL COURT PROPERLY RULED THAT THE APPELLANTS DO NOT
      HAVE STANDING.

      Appellants assert that they have either individual standing, tax-payer standing,

associational standing, or standing to sue under the Texas Constitution. Each of the

Appellants’ standing arguments fails for the following reasons.

          a. No Individual Standing

      In Texas, in order for a plaintiff to have individual standing, there must be a

concrete injury to the plaintiff and a real controversy between the parties that will be

resolved by the court. Heckman v. Williamson County, 369 S.W.3d 137, 154 (Tex.

2012) (citing Daimler Chrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)).

                                           5
This test mirrors that of the federal test for Article III standing, in which “[a] plaintiff

must allege [1] personal injury [2] fairly traceable to the defendant’s allegedly

unlawful conduct and [3] likely to be redressed by the requested relief.” Allen v.

Wright, 468 U.S. 737, 751 (1984) (emphasis added).

       Standing requires that the plaintiff be “personally injured—he must plead

facts demonstrating that he, himself (rather than a third party or the public at large),

suffered the injury.” Heckman, 369 S.W.3d at 155 (emphasis added) (citing South

Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007)). “[W]hen the asserted

harm is a ‘generalized grievance’ shared in substantially equal measure by all or a

large class of citizens, that harm alone normally does not warrant exercise of

jurisdiction.” Warth v. Seldin, 422 U.S. 490, 499 (1975). It is the plaintiff’s burden

to plead facts that affirmatively demonstrate the court’s jurisdiction to hear their

claim. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

       Here, Appellants here have failed to plead facts affirmatively demonstrating

the court’s jurisdiction. The UDJA is a remedial statue and its express purpose is

“to settle and to afford relief from uncertainty and insecurity with respect to rights,

status, and other legal relations[.]” Tex. Civ. Prac. & Rem. Code Ann. § 37.002;

Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.

2002). However, there has been no showing that Appellants have any standing to

assert a declaration of their individual rights, distinct from the public at large,


                                             6
concerning the subject matter of this lawsuit. Appellants have not, and cannot, allege

facts that sufficiently distinguish them from the general public as to the damage

alleged. See Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001) (“Our decisions have

always required a plaintiff to allege some injury distinct from that sustained by the

public at large.”); Ritchie v. City of Fort Worth, 730 S.W.2d 448, 450 (Tex. App.—

Fort Worth, 1987); Alexander v. City of Greenville, 585 S.W.2d 333 (Tex. App.—

Dallas 1979).

      Appellants have alleged that their particularized injury is the removal of the

statues. Appellants’ Brief at 24. Appellants fail to demonstrate, however, how this

injury (if it is in fact an injury) is personal to them, and distinct from the public at

large. See Todd, 52 S.W.3d at 302. Their “identity as . . . descendant[s] of

Confederate veterans . . . and their public affirmation of the values of the military

service of their ancestors in the Civil War” do not make the removal of the statues

any more personal or injurious to them than to any other citizen of the state.

Appellants’ Brief at 23. As such, Appellants have not pleaded, and cannot prove

that relocation of the statues is in any way working a particularized injury to them.

                 i. No Tax-Payer Standing

      In Texas, there is a long-standing exception to the general rule of having to

show a particularized injury. See Bland, 34 S.W.3d at 556. This exception bestows




                                           7
standing on a taxpayer to “enjoin the illegal expenditure of public funds, even

without showing a distinct injury.” Id.

       Appellants assert that, “[e]ven if the individual plaintiffs do not have standing

under the general rule for individual standing because they have not suffered a

particularized injury, individual plaintiffs have standing under the [taxpayer]

exception.” Appellants’ Brief at 26.

       While the individual defendants Bray and Littlefield are likely able to

demonstrate their status as taxpayers (although Littlefield no longer lives in the state

and presumably does not pay taxes in the state), they cannot demonstrate any “illegal

expenditure of public funds.” Bland, 34 S.W.3d at 556. The removal of the statues

does not violate any laws, as President Fenves—acting as the President of the

University of Texas at Austin, and therefore one of the trustees of Major Littlefield’s

trust—had full authority to remove, relocate, or alter the statues in question. See CR

74–75 (identifying “the person who occupies the position of President of the

University of Texas” as a trustee and member of the committee overseeing the

construction of the statues in question, and giving authority to said committee “to

change [the arrangement given in the will] or the design suggested if they wish,

giving prominence3 however to the statues of the men named”). Under the express


       3
         Appellants incorrectly state that “Maj. Littlefield’s express and most significant condition
to his Bequest, the monuments, and especially the Jefferson Davis monument, were to be given a
place of prominence on the South Mall of the Campus.” Appellant’s Brief at 28 (emphasis added).
However, the only mention of a specific location—“the south entrance to the campus of the
                                                  8
terms of Major Littlefield’s trust, the President of the University is authorized to

change the location of the statues, as long as they are given prominence wherever

they are located. CR 74–75. Since Appellants do not plead facts showing any illegal

expenditure of public funds, they do not have taxpayer standing.

           b. No Associational Standing

       Alternatively, SCV alleges that it has associational standing. Appellants

suggest that there are two tests used by the Texas Supreme Court to evaluate whether

an association or organization has standing to sue, and that the wrong test was used

in the trial court to evaluate whether SCV had associational standing. Appellants’

Brief at 19. Appellants rely on Texas Association of Business v. Texas Air Control

Board in support of their contention. Appellants’ Brief at 19. However, the very

test relied upon in President Fenves’s Plea in the trial court is the only test relied

upon by the Court in Texas Association of Business: “an association has standing to

sue on behalf of its members when ‘(a) its members would otherwise have standing

to sue in their own right; (b) the interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.’” Compare Tex.

Ass’n of Bus., 852 S.W.2d 447 (quoting Hunt v. Washington State Apple Adver.


University of Texas”—is in the precatory language, on page three of Major Littlefield’s will (CR
211), which appears before Major Littlefield’s authorization to “change [the arrangement] or the
design . . . if [the committee] wish[es.]” There is no requirement that the statues’ place of
prominence be “on the South Mall of the campus.”
                                                9
Comm’n, 432 U.S. 333, 343 (1977)), with CR 61 (Defendant’s Original Answer and

Plea to the Jurisdiction stating the Texas Association of Business test for

associational standing).

      When this test is applied to the present case, SCV fails to meet the first

requirement for associational standing. As explained above, there is nothing to

suggest that any of the individual members would have standing to sue in their own

right, as none can demonstrate an individual injury in fact. See supra II(B)(a). That

members of SCV have made public their “affirmation of the values of the military

service of their ancestors in the Civil War” does not make the purported injury—the

relocation of the statues—any more particularized to them than to any other member

of the general public. Appellants’ Brief at 23. For this reason, SCV cannot meet the

first prong of the associational standing test and therefore does not have associational

standing to sue.

          c. Appellants have no standing to enforce a public charitable trust.

      Appellants assert a fourth possible means of achieving standing, through the

Texas Constitution’s guarantee of open access to the court. Appellants’ Brief at 29.

Appellants argue that, by “seek[ing] enforcement of the express and common law

terms of the Littlefield Bequest,” as well as the “common law doctrines of Election

of Benefits and Promissory Estoppel” they have standing under the Texas

Constitution. Appellants’ Brief at 29–30. The Open Courts doctrine, however, is


                                          10
not a viable alternative to the requisite standing to sue. Further, whether they’re

seeking enforcement of the express terms of the will, or the common law doctrines

of “election of benefits and promissory estoppel,” it is well-settled that “[p]ersons

having no special interest different from that of the general public have no standing

to institute or maintain a suit to enforce a public charitable trust.” Gray v. St.

Matthews Cathedral Endowment Fund, Inc., 544 S.W.2d 488, 490 (Tex. App.—

Texarkana 1976, writ ref’d n.r.e.) (citing Coffee v. William Marsh Rice University,

403 S.W.2d 340 (Tex. 1966)).

       Pursuant to Chapter 123 of the Texas Property Code, Major Littlefield’s

testamentary gift to UT for the commission of the statues constitutes a charitable

trust. 4 Appellants assert that Major Littlefield’s gift to the University cannot be

construed as a charitable trust because the Property Code, defining “charitable trust,”

was not enacted until 1983, and Major Littlefield’s will was executed in 1918.

Appellant’s Brief at 36–37. The provisions of the Property Code dealing with

charitable trusts, however, are merely codification of the long-standing common law

recognition of charitable trusts. The Texas Supreme Court has interpreted the

viability of charitable trusts in opinions dating back to 1892. See, e.g., Meyer v.

Holle, 83 Tex. 623, 19 S.W.154 (1892). Further, courts of appeals have determined


       4
            Specifically, § 123.001(2) defines charitable trusts to include a “testamentary gift to a
charitable entity.” Under § 123.001(1) a charitable entity means an “entity organized
for . . . educational . . . purposes,” which would include public universities like The University of
Texas at Austin.
                                                  11
gifts to universities to be charitable trusts even prior to the execution of Major

Littlefield’s will. See Lightfoot v. Poindexter, 199 S.W. 1152, 1167 (Tex. Civ.

App.—Austin 1917, writ ref’d) (holding a gift to be a “charity” because “it is made

for the purpose of giving education . . .[,] the manner in which this purpose shall be

carried out is specifically stated in the will” and the will provides who the trustee

and beneficiaries are). As such, even using the law as it existed at the time Major

Littlefield’s will was executed, the bequest to the University should still be construed

as a charitable trust.

       The Appellants do not, as members of the general public without any special

interest in the terms of the trust, have standing to enforce the provisions of the trust.

“Where a charity is for the benefit of the public at large or a considerable portion of

it, and the language of its creation is such that no particular individuals can be

pointed out as the objects to be benefited by it, the official representative of the

public is the only party capable of vindicating the public’s rights in connection with

such charity.” Gray, 544 S.W.2d at 490 (emphasis added); see also Nacol v. State,

792 S.W.2d 810, (Tex. App.—Houston [14th Dist.] 1991, writ denied) (noting that

where Plaintiffs “have no special interest different from that of the general public,

they have no standing to institute or maintain a suit to enforce a public charitable

trust.”).




                                           12
       Although Section 115.001 of the Texas Trust Code specifies that “any

interested person”5 may bring an action, courts have routinely made a distinction

between “public” and “private” charities when applying the term “any interested

person” to charitable trusts. The terms of a public charitable trust are generally

enforceable only by the trustees and the attorney general as “interested persons.”

Gray, 544 S.W.2d at 490; see also RR 2:133, line 24–2:134, line 3 (stating that, by

virtue of the State’s representation of the university, “the State of Texas’[s] position

is that the University of Texas has the right to make the changes requested”). The

terms of a private charitable trust are enforceable, not only by the trustee and the

attorney general, but by other interested persons who “have such a special or active

interest in the trust as justifies a standing to maintain an action to enforce it.” Id.;

see also Carroll v. City of Beaumont, 18 S.W.2d 813 (Tex. Civ. App.—Beaumont

1929, writ refused). In either instance, the Appellants here lack standing. Other than

the statement regarding the purported familial relationship, Appellant David

Littlefield has not demonstrated a particularized interest in this suit. CR 259. In

fact, at the temporary injunction hearing, David Littlefield stated that he had “no

financial interest” in Major Littlefield’s will. RR 2:33, lines 10–14, 2:134, lines 11–

16. There is no allegation that David Littlefield is a trustee, or a beneficiary of his



       5
         “An ‘interested person’ is defined as “a trustee, beneficiary, or any other person having
an interest in or a claim against the trust or any person who is affected by the administration of the
trust.” Gamboa v. Gamboa, 383 S.W.3d 263 (Tex. App.—San Antonio, 2012, no pet.).
                                                   13
third cousin’s will, or that he is otherwise an interested person entitled to sue to

enforce the trust.       Accordingly, Appellants lack standing to enforce a public

charitable trust.

   C. EVEN IF THIS COURT DETERMINED THE APPELLANTS HAD STANDING,
      PRESIDENT FENVES DID NOT VIOLATE THE TERMS OF THE LITTLEFIELD
      TRUST.

       Even assuming, arguendo, that Appellants could establish standing to sue,

President Fenves, in his capacity as President of the University, is acting fully in

accordance with not only the law, but the terms of Major Littlefield’s Last Will and

Testament. The language in the will regarding the placement of the statues to be

commissioned is entirely precatory and plainly gives to the trustees full discretion

as to the design and placement of the statues.6 CR 211. While Major Littlefield

expressed his wish or desire as to the placement of the statues, he also expressly

stated, “The arrangement given here is 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.” 7 CR 211. And


       6
           The expression, “it is my wish”, is precatory in nature and not mandatory, and cannot be
construed as mandatory, unless from reading of entire will, and by considering circumstances and
situation of testator and beneficiaries, it becomes clear that intention of testator was to create such
a mandatory bequest. Najvar v. Vasek, 564 S.W.2d 202 (Tex. Civ. App—Corpus Christi, 1978).
         7
           In fact, the specific placement location that Appellants seek to preserve by their lawsuit
is not the placement location Major Littlefield described in his will (which called for the statute to
be placed on top of a “massive bronze arch”), but is a quite different placement that was determined
solely by the trustees’ exercise of their discretion to place of the statute in a place of prominence.
CR 74. Appellants now seek to preserve the specific placement location that was selected by the
trustees in their exercise of discretion; thus, Appellants effectively concede that the trustees indeed
do have full discretion as to placement, and that the trustees were never bound literally to Major
                                                   14
Appellants do not dispute that the Dolph Briscoe Center is an appropriate and

prominent location in which to indefinitely display the Davis statue.8

   D. TEXAS GOVERNMENT CODE § 2166.5011 IS NOT APPLICABLE TO THE
      PRESENT CASE.

       In addition to the fatal standing issue, Appellants’ claims must also fail

because the provisions of the Government Code on which they rely are inapplicable

to this case. The provision at issue in this case is Texas Government Code section

2166.5011, which outlines procedures for removal, relocation, or alteration of a

monument or memorial. Appellants assert that the wording of Texas Government

Code section 2166.501 should direct the Court’s interpretation of the definition

given in Texas Government Code section 2155.5011, under the doctrine of in pari

materia. Appellants’ Brief at 48. Section 2166.501, relating to monuments and

memorials generally, states: “A monument or memorial for Texas heroes of the

Confederate States of America or the Texas War for Independence . . . state may be

erected on land owned or acquired by the state[.]” Tex. Gov’t Code Ann. §

2166.501. Section 2166.5011, enacted six years after section 2166.501, more

specifically defines “monuments or memorials” in the context of their “removal,

relocation, or alteration.” Under the doctrine of in pari materia, a rule of statutory


Littlefield’s expressed desire in the will, other than that the statute be placed in a place of
prominence.
         8
           When asked by the trial court whether “the Briscoe Center is . . . a sufficiently prominent
location for the relocation of the [Davis] statue” Appellant’s counsel stated “It is a place where it
needs to be . . . .” RR 2:26, lines 20–24.
                                                 15
construction codified by Texas Government Code section 311.026, “(a) [i]f a

general provision [of a statute] conflicts with a special or local provision, the

provisions shall be construed, if possible so that effect is given to both; (b) [i]f the

conflict between the general provision and the special or local provision is

irreconcilable, the special or local provision prevails as an exception to the general

provision . . . .” Tex. Gov’t Code Ann. § 311.026 (emphasis added).

       As an initial matter, there is no conflict between sections 2166.501 and

2166.5011, and thus, the doctrine of in pari materia is not implicated. However,

even if the statutes were in conflict and had to be construed such that one prevails

over another, section 2166.5011, as the special provision dealing with “removal,

relocation, or alteration,” would prevail over section 2166.501, the more general

statute.

       Section 2166.5011(a) defines a “monument or memorial” as: “a permanent

monument, memorial, or other designation, including a statue . . . that: (1) is located

on state property; and (2) honors a citizen of this state for military or war-related

service.” Tex. Gov’t Code Ann. § 2166.5011(a) (emphasis added). Because neither

Jefferson Davis nor Woodrow Wilson were “citizens of this state,” neither statue

would qualify as a “monument or memorial” under the provisions of section

2166.5011(a).




                                          16
                i. Jefferson Davis

      Appellants incorrectly state that the Jefferson Davis statue qualifies as a

monument or memorial. CR 35. Appellants rely on the accomplishments of Davis,

largely focusing on Davis’s contributions to the Confederacy, and the fact that he

possibly owned land in Texas, in making this assertion. CR 35, RR 2:70–72.

However neither Davis’s contributions to the history of Texas nor Davis’s status as

a land owner are sufficient to make him a citizen of Texas—a requirement for a

statue of Davis to qualify as a monument or memorial for the purposes of removing,

relocating, or altering such a statue. Tex. Gov’t Code Ann. § 2166.5011(a)(2).

      The term “citizen of Texas” is not defined in Texas Government Code Chapter

2166. When a term in a statute is not defined by the Legislature, courts construe the

statute’s words “according to their plain and common meaning.” Tex. Dep’t of

Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). Black’s Law

Dictionary defines the term “citizen” as “someone who, by either birth or

naturalization, is a member of a political community, owing allegiance to the

community and being entitled to enjoy all its civil rights and protections; a member

of the civil state, entitled to all its privileges.” Black’s Law Dictionary (10th ed.

2014). Therefore, a “citizen of Texas” would be “someone who, by either birth or

naturalization, is a member” of Texas, “owing allegiance to” Texas “and being

entitled to enjoy all” of Texas’s “civil rights and protections; a member of the civil


                                         17
state, entitled to all its privileges.” Id. Futher,

       Appellants argue that “Davis was made a citizen of Texas in 1875 by purchase

of 1080 acres of land in Bowie County, Texas, on which Mr. Davis paid property

taxes. Since Jefferson Davis paid taxes on land in Texas, he was a citizen of Texas,

as construed under the law of the time.” Appellants’ Brief at 51. Davis, who was

born in Kentucky, and made his primary residence in Mississippi, was not made a

citizen of Texas merely by paying property taxes in Texas. RR 2: 76, lines 1–2

(testimony of Egon Tausch stating “I was always very clear that his main home was

in Mississippi”); see Morris v. Gilmer, 129 U.S. 315, 328 (1889) (discussing the

requirements of citizenship, holding that “[t]here must be an actual, not pretended,

change of domicile; in other words the removal must be ‘a real one, animo manendi,

and not merely ostensible.’ The intention [to change domicile] and the act must

concur in order to effect such a change of domicile as constitutes a change of

citizenship.”) (quoting Case v. Clarke, 5 Fed. Case 254, 5 Mason 70 (1828) (J.

Story)).

       There is no evidence in the record indicating that Davis ever intended to

relocate his domicile to Texas.         Further, the property records submitted by

Appellants in the trial court specifically state that the records are the “Assessment

Roll of Property in Bowie County Owned by Non-Residents[.]” RR 3:227. The very

evidence relied upon by Appellants to make the argument that Davis was a citizen


                                            18
plainly state that Davis was a “Non-Resident.” RR 3:227. Applying this information

to the definition of citizen used in the Fourteenth Amendment to the United States

Constitution—that “[a]ll persons born or naturalized in the United States, and subject

to the jurisdiction are citizens of the United States and of the State in which they

reside[]”—it is clear that Davis could not have been a citizen of Texas because,

according to the very records indicating that taxes were paid on the land in Davis’s

name, Davis did not reside in Texas. U.S. Const. amend. XIV § 1 (emphasis added).

       Appellants attempt to explain that Davis had sufficient ties to Texas such that

a statue of him should be considered a monument or memorial. Appellants’ Brief at

51. Under the clear language of the statute, however, because Davis was not a citizen

of Texas, the statue of him on the University’s campus is not a “monument or

memorial” and can be removed, relocated, or altered, without consultation with the

Texas Historical Commission. See Tex. Gov’t Code Ann. § 2166.5011(a)(2).

                  ii. Woodrow Wilson

       Appellants also argue that the statue of Woodrow Wilson should be deemed

a monument or memorial. Appellants’ Brief at 50. However, for the reasons stated

above in Section III(D)(i) and incorporated herein, the statue of Wilson would also

not qualify as a monument or memorial under § 2166.5011(a)(2) because, like Davis,

Wilson was not a citizen of Texas. 9 Again, Appellants attempt to demonstrate


       9
         In fact, there is evidence showing Wilson’s displeasure in being included in the memorial,
especially expressing reluctance in being assigned the position opposite Jefferson Davis. Wilson
                                                19
sufficient ties between Wilson and the State of Texas, mentioning that Wilson “was

a man of historical significance to Texans and Texas.” Appellants’ Brief at 50.

Being a “man of historical significance,” however, is not synonymous with being a

citizen of Texas. Thus, the statue of Wilson on the University’s campus is not a

“monument or memorial” and can be removed, relocated, or altered, without

consultation with the Texas Historical Commission.                  See Tex. Gov’t Code §

2166.5011(a)(2).

       Moreover, even if the Wilson statue were to qualify as a monument under

§ 2166.5011, which it does not, the Wilson statue would be subject to the exception

set forth in subsection (c) of Texas Government Code section 2166.5011, which

applies when a statue is being relocated to accommodate improvements to the

monument or to the surrounding property. Tex. Gov’t Code Ann. § 2166.5011(c).

As President Fenves stated in a letter to The University of Texas community, the

statue of President Woodrow Wilson, which stands opposite the statue of Davis is

being relocated “to preserve the symmetry of the Main Mall.” CR 142.




stated “I am sorry to say I must express an unwillingness to have my effigy mounted as is suggested
in association with the proposed memorial. Moreover . . . I don’t fancy the partner [Davis] they
offer me.” Alexander Mendoza, “Causes Lost But Not Forgotten: George Washington Littlefield,
Jefferson Davis, and Confederate Memories at the University of Texas at Austin,” in The Fate of
Texas: The Civil War and the Lone Star State, ed. Charles D. Grear (Fayetteville, AR: University
of Arkansas Press, 2008), 169.
                                                 20
                iii. Appellants’ Argument Regarding the Board of Regents
                     Rules

      Appellants assert that even if President Fenves’s actions did not violate Texas

Government Code sections 2166.501 and 2166.5011, his actions did violate various

Board of Regents Rules. Appellants’ Brief at 54–55. As an initial matter, this

argument was not made at the trial court, and therefore should not be considered by

the appellate court. Tex. R. App. P. 33.1; see Whisenhunt v. Lippincott, 416 S.W.3d

689, (Tex. App.—Texarkana 2015, no pet.) (“A party to a lawsuit waives the right

to raise even a constitutional claim on appeal if that claim is not presented to the trial

court.”) (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 377 (Tex. 2009)).

Further, nothing in the Appellants’ argument related to the alleged violation of the

Board of Regents Rules raises jurisdictional issues which could be considered by

this Court for the first time on appeal. Tex. Ass’n of Bus., 852 S.W.2d at 445.

      However, even if this Court were to consider the Appellants’ Board of

Regents argument, Appellants’ claims still fail. The Board of Regents Rules cited

to by Appellants do not provide Appellants with any statutory standing, and their

arguments for individual standing or associational standing fail under the Board of

Regents Rules for the same reasons stated in part III(B) supra.




                                           21
                                    PRAYER

      For the foregoing reasons, this Court should affirm the judgment of the trial

court below dismissing this case.

                                      Respectfully submitted,

                                      KEN PAXTON
                                      Attorney General of Texas

                                      CHARLES E. ROY
                                      First Assistant Attorney General

                                      JAMES E. DAVIS
                                      Deputy Attorney General for Civil
                                      Litigation

                                      ANGELA COMENERO
                                      Division Chief


                                      /s/ Mariel T. Puryear
                                      MARIEL T. PURYEAR
                                      Attorney in Charge
                                      Texas Bar No. 24078098
                                      Office of the Attorney General
                                      General Litigation Division
                                      P.O. Box 12548, Capitol Station
                                      Austin, TX 78711-2548
                                      PHONE: (512) 475-4651;
                                      FAX: (512) 320-0667
                                      mariel.puryear@texasattorneygeneral.gov
                                      ATTORNEYS FOR APPELLEE




                                        22
                         CERTIFICATE OF SERVICE

            I certify that a true and correct copy of the foregoing document has been

served electronically through the electronic filing manager in accordance with Tex.

R. App. P. 9.5(b)(1) on the 9th day of December 2015, to:

Kirk D. Lyons
Southern Legal Resource Center, Inc
P.O. Box 1235
Black Mountain, North Carolina 28711
828-669-5189
828-669-5191 Fax
kdl@slrc-csa.org

C.L. Ray
604 Beardsley Lane, Suite 100
Austin, Texas 78746
(512) 328-9238
(512) 857-0606 Fax
clray4523@hotmail.com




                                      /s/ Mariel T. Puryear
                                      MARIEL T. PURYEAR
                                      Assistant Attorney General




                                        23
                      CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex. R.

App. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document also

complies with the word-count limitations of Tex. R. App. P. 9.4(i), if

applicable, because it contains 5,413 words, excluding any parts exempted by

Tex. R. App. P. 9.4.(i)(1).



                                      /s/ Mariel T. Puryear
                                      MARIEL T. PURYEAR
                                      Assistant Attorney General




                                        24
