                                                                             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

                   APPELLANTS’ REPLY BRIEF
                          Page 2 of 37	
           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
                           Page 3 of 37	
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
                         Page 4 of 37	
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


                    APPELLANTS’ REPLY BRIEF
                           Page 5 of 37	
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


                      APPELLANTS’ REPLY BRIEF
                             Page 6 of 37	
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


                     APPELLANTS’ REPLY BRIEF
                            Page 7 of 37	
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


                     APPELLANTS’ REPLY BRIEF
                            Page 8 of 37	
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
                            Page 9 of 37	
       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

                      APPELLANTS’ REPLY BRIEF
                            Page 10 of 37	
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
                           Page 11 of 37	
      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
                            Page 12 of 37	
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


                       APPELLANTS’ REPLY BRIEF
                             Page 13 of 37	
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


                         APPELLANTS’ REPLY BRIEF
                               Page 14 of 37	
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
                            Page 15 of 37	
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


                      APPELLANTS’ REPLY BRIEF
                            Page 16 of 37	
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
                            Page 17 of 37	
     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

                     APPELLANTS’ REPLY BRIEF
                           Page 18 of 37	
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
                           Page 19 of 37	
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


                     APPELLANTS’ REPLY BRIEF
                           Page 20 of 37	
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

                    APPELLANTS’ REPLY BRIEF
                          Page 21 of 37	
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


                     APPELLANTS’ REPLY BRIEF
                           Page 22 of 37	
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
                            Page 23 of 37	
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


                     APPELLANTS’ REPLY BRIEF
                           Page 24 of 37	
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


                       APPELLANTS’ REPLY BRIEF
                             Page 26 of 37	
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
                        APPELLANTS’ REPLY BRIEF
                              Page 27 of 37	
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


                          APPELLANTS’ REPLY BRIEF
                                Page 28 of 37	
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,


                     APPELLANTS’ REPLY BRIEF
                           Page 29 of 37	
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


                    APPELLANTS’ REPLY BRIEF
                          Page 30 of 37	
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


                     APPELLANTS’ REPLY BRIEF
                           Page 31 of 37	
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

                     APPELLANTS’ REPLY BRIEF
                           Page 32 of 37	
      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.	


                        APPELLANTS’ REPLY BRIEF
                              Page 33 of 37	
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.	
                        APPELLANTS’ REPLY BRIEF
                              Page 34 of 37	
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


                     APPELLANTS’ REPLY BRIEF
                           Page 35 of 37	
     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.




                APPELLANTS’ REPLY BRIEF
                      Page 36 of 37	
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
                           Page 37 of 37	
