                                                                       ACCEPTED
                                                                   06-15-00075-CV
                                                        SIXTH COURT OF APPEALS
                                                              TEXARKANA, TEXAS
                                                             11/6/2015 11:42:23 PM
                                                                  DEBBIE AUTREY
                                                                            CLERK

                No. 06-15-00075-CV

                                           FILED IN
                                    6th COURT OF APPEALS
         IN THE COURT OF APPEALS      TEXARKANA, TEXAS
                                    11/9/2015 9:11:00 AM
      FOR THE SIXTH DISTRICT OF TEXAS 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’ BRIEF
__________________________________________________


                 Kirk David Lyons
                 Texas Bar No. 12743500
                 Southern Legal Resource Center, Inc.
                 P.O. Box 1235
                 Black Mountain, N.C. 28711
                 Tel. (828) 669-5189
                 Fax (828) 669-5191
                 kdl@slrc-csa.org

                 ATTORNEY FOR APPELLANTS


         ORAL ARGUMENT REQUESTED
                 APPELLANTS’ BRIEF
                     Page 1 of 59
              IDENTITY OF PARTIES AND COUNSEL

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

Represented by:
Kirk David Lyons, Attorney in Charge
Texas Bar No. 12743500
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
Texas Bar No. 00000034
604 Beardsley Lane, Suite 100
Austin, TX 78746
Tel. (512) 328-9238
Fax (512) 857-0606
clray4523@hotmail.com

Defendant Below/Appellee:
President Greg L. Fenves, University of Texas at Austin

Represented by:
Mariel Puryear, Attorney in Charge
Texas Bar No. 24078098
Office of the Texas Attorney General
P.O. Box 12548
Austin, TX 78711
Tel. (512) 463-2120
Fax (512) 320-0667
mariel.puryear@texasattorneygeneral.gov




                          APPELLANTS’ BRIEF
                              Page 2 of 59
                                  TABLE OF CONTENTS

IDENTITY OF PARTIES ................................................................ 2

INDEX OF AUTHORITIES ............................................................ 6

STATEMENT OF THE CASE ...................................................... 10

ISSUES PRESENTED FOR REVIEW ......................................... 12

STATEMENT OF FACTS ............................................................. 12

SUMMARY OF THE ARGUMENT .............................................. 14

ARGUMENT ................................................................................. 16

I. Plaintiffs Have Standing .......................................................... 16

       A.      Standard of Review ..................................................... 16

       B.      Plaintiffs Have Individual Standing Under the
               Abbot Rule .................................................................. 22

       C.      Plaintiffs Are Excepted to the Requirement
               for Particularized Injury, Because Individual
               Plaintiffs Are Taxpayers ............................................. 26

       D.      The Sons of Confederate Veterans, Inc.,
               Has Associational Standing Under Texas
               Association of Business ............................................... 27

       E.      Plaintiffs Have Standing, Because the
               Texas Constitution Guarantees Open Access
               to Courts ...................................................................... 29

       F.      Conclusion on Standing .............................................. 31



                                       APPELLANTS’ BRIEF
                                           Page 3 of 59
II.     Defendant President Fenves Violated the Terms of the
        Littlefield Bequest ................................................................ 31

        A.      The Littlefield Conveyance Is a Bequest as
                Understood in the Law as It Existed at the Time
                of the Conveyance ....................................................... 32

        B.      Defendant President Fenves Breached the Terms
                of the Littlefield Bequest ............................................ 38

        C.      The University Is Barred from Moving the
                Monuments under the Doctrine of Quasi-Estoppel .... 45

        D.      The Proper Remedy for Breach of the Bequest ......... 47

        E.      Conclusion on Breach of the Bequest ......................... 47

III.    Defendant President Fenves Violated the Texas
        Government Code ................................................................. 48

        A.      The Littlefield Monuments Are Protected
                by the Monument Protection Act ................................ 48

        B.      The University of Texas Is Not Exempt from the
                Requirements of the Monument Protection Act ......... 53

        IV.     Defendant President Fenves Violated Board of
                Regents Rules .............................................................. 54

        V.     A Case of First Impression and Request for Oral
               Argument...................................................................... 57

PRAYERS ...................................................................................... 57

CERTIFICATES ............................................................................ 59




                                       APPELLANTS’ BRIEF
                                           Page 4 of 59
APPENDIX

    Order Denying Plaintiff’s Application for
    Temporary Injunction .................................................. TAB A

    Order Granting Plea to Jurisdiction............................ TAB B

    Littlefield Will .............................................................. TAB C

    Monument Protection Act, Texas Government
    Code Sections 2166.501 and 2166.5011 ...................... TAB D

    University of Texas System Board of Regents Rules
    138 § 2 and 60101 § 2 ................................................... TAB E




                                 APPELLANTS’ BRIEF
                                     Page 5 of 59
                                INDEX OF AUTHORITIES

                                               CASES

Abbott v. G.G.E., et al.,
463 S.W.3d 633 (Tex. App.—Austin Apr. 30, 2015) 16, 19, 22, 24, 31, 54

Angell v. Bailey,
      225 S.W.3d 834 (Tex. App.—El Paso 2007, no pet.) .................... 45

Baylor Health Care System v. Employers Reinsurance Corp.,
      492 F.3d 318 (5th Cir. 2007) ........................................................ 46

Bell v. State Dep't of Highways & Pub. Transp.,
      945 S.W.2d 292 (Tex. App.—Houston [1st Dist.] 1997,
      writ denied) .................................................................................. 18

Biko v. Siemens Corp.,
      246 S.W.3d 148 (Tex. App.—Dallas 2007, no pet.) ...................... 46

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) .......... 21, 54

Board of Water Engineers v. City of San Antonio,
      283 S.W.2d 722 (Tex. 1955) .......................................................... 20

Continental Cas. Ins. Co. v. Functional Restoration Associates,
      19 S.W.3d 393 (Tex. 2000)............................................................ 17

Dahl ex rel. Dahl v. State,
      92 S.W.3d 856 (Tex. App.—Houston [14 Dist.] 2002,
      no pet.) .......................................................................................... 18

Dakan v. Dakan, 83 S.W.2d 620 (Tex. 1935) ................................. 38, 40

Daniel v. Goesl, 341 S.W.2d 892 (Tex. 1960) ........................................ 46

Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000) .......... 17, 22, 29


                                       APPELLANTS’ BRIEF
                                           Page 6 of 59
Dulin v. Moore, 70 S.W. 742 (Tex. 1902) ............................ 33, 34, 35, 36

Edsall v. Hutchings,
      143 S.W.2d 700 (Tex. Civ. App.—Eastland 1940,
      no writ) ................................................................................... 38, 40

Gillman v. Gillman,
      313 S.W.2d 931 (Tex. Civ. App.—Amarillo 1958,
      writ refused n.r.e.) .................................................................. 40, 41

Haupt v. Michealis, 231 S.W. 706 (Tex. 1921) ................................ 32, 37

Hodge v. Ellis, 277 S.W.2d 900 (Tex. 1955) .......................................... 38

Hoffmann v. Davis, 100 S.W.2d 94, 95 (Tex. 1937) .............................. 21

Huston v. Federal Deposit Insurance Corp.,
      663 S.W.2d 126 (Tex. App.—Eastland 1983,
      writ ref’d n.r.e.)............................................................................. 17

In re Walker Estate,
      No. 13-11-00438 CV (Tex. App.—Corpus Christi-Edinburg
      August 23, 2012, no pet.) (mem.op.) ............................................ 33

Lane v. Sherrill,
      614 S.W.2d 623 (Tex. App.—Austin 1981, no pet.) ..................... 33

Lindsey v. Rose, 175 S.W. 829 (Tex. 1915) ........................................... 33

Lopez v. Munoz, Hockema & Reed, L.L.P.,
      22 S.W.3d 857 (Tex. 2000)............................................................ 45

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................ 19

McMurray v. Stanley, 6 S.W. 412 (Tex. 1887) .......................... 33, 34, 36




                                      APPELLANTS’ BRIEF
                                          Page 7 of 59
National Educators Life Ins. Co. v. Master Video Systems, Inc.,
      398 S.W.2d 358 (Tex. Civ. App.—Corpus Christi 1965,
      writ ref’d n.r.e.)............................................................................. 45

Perfect Union Lodge v. Interfirst Bank of San Antonio,
      748 S.W.2d 218 (Tex. 1988).......................................................... 33

Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983 .......................................... 21

Sierra Club v. Morton, 405 U.S. 727 (1972).......................................... 16

Smith v. Butler, 19 S.W. 1083 (Tex. 1892) ........................................... 39

Stephanou v. Texas Medical Liability Ins. Underwriting Assoc.,
      792 S.W.2d 498 (Tex. App.—Houston [1st Dist.] 1997,
      writ denied) .................................................................................. 18

Terrazas v. Carroll,
      277 S.W.2d 274 (Tex. Civ. App.—Eastland 1955,
      no writ) ......................................................................................... 46

Texans United for Reform & Freedom v. Saenz,
      319 S.W.3d 914 (Tex. App.—Austin 2000,
      no pet.) ........................................................................ 16, 21, 26, 31

Texas Ass’n of Bus. v. Texas Air Control Bd.,
      852 S.W.2d 440 (Tex. 1993) ................ 16, 17, 18, 19, 20, 21, 27, 31

Texas Dep’t of Parks and Wildlife v. Miranda.......................... 28, 29, 51

Theriot v. Smith,
      263 S.W.2d 181 (Tex. Civ. App.—Waco 1953, writ dism’d) ......... 46

Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670.(Tex. 1955) ............ 40




                                       APPELLANTS’ BRIEF
                                           Page 8 of 59
                                          RULES

Texas Rule of Civil Procedure 80 .......................................................... 18

University of Texas System Rule 138 § 2 ................................. 12, 56, 58

University of Texas System Rule 60101 § 2 ............................. 12, 55, 58

                                    CONSTITUTION

TEX. CONST., art. 1, § 13 ..................................................... 17, 21, 29, 31

                                       STATUTES

Texas Government Code § 2166.003 ..................................................... 53

Texas Government Code § 2166.501 ....................... 12, 14, 48, 49, 50, 58

Texas Government Code § 2166.5011 ............... 12, 14, 48, 49, 50, 52, 58

Texas Property Code Annotated Preface .............................................. 36

Texas Property Code § 123.001 ............................................................. 36

                               OTHER AUTHORITIES

Black’s Law Dictionary (2d ed. 1910) ............................................. 34, 37

Black’s Law Dictionary (9th ed. 2009) ...................................... 42, 47, 48

21 Corpus Juris Secundum Courts § 16 ............................................... 17

34 Texas Jurisprudence 3d Estoppel § 2 .............................................. 45

74 Texas Jurisprudence 3d Wills § 279 ................................................ 34

97 Corpus Juris Secundum Wills § 1237 ........................................ 32, 40


                                   APPELLANTS’ BRIEF
                                       Page 9 of 59
                       STATEMENT OF THE CASE

        For ease of identification, Appellants Gary David Bray, the Texas

Division, Sons of Confederate Veterans, Inc., and Steven David

Littlefield are referred to as “plaintiffs” in Appellants’ Brief, and

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

Austin, is referred to as “defendant.”

        Nature of the Case. Gary David Bray, the Texas Division, Sons of

Confederate Veterans, Inc., and Steven David Littlefield sued President

Gregory L. Fenves of the University of Texas at Austin for a temporary

restraining order, and a temporary injunction to bar defendant from

removing the Jefferson Davis and Woodrow Wilson monuments from

the University of Texas at Austin campus, as well as for declaratory

judgment that removal of Littlefield monuments would be illegal. (CR

3-26).

        Course of Proceedings. After a one-day preliminary hearing, the

trial court denied plaintiffs’ application for temporary injunction and

granted defendant’s plea to the jurisdiction with prejudice. (CR 265,

280).     Plaintiffs filed a motion to vacate the order denying the

temporary injunction as being void, because the trial court granted


                             APPELLANTS’ BRIEF
                                Page 10 of 59
defendant’s plea to the jurisdiction with prejudice. Plaintiffs’ also filed

a motion to reform the judgment granting the plea to the jurisdiction,

requesting that the trial court strike the improper language in the

court’s judgment in the grant of the plea to the jurisdiction. (CR 270-73,

276-79).

      Trial Court Disposition. The trial court granted defendant’s plea

to the jurisdiction and denied plaintiffs’ motion for temporary

injunction. (CR 265, 280). The trial court did not rule on the post-

hearing motions to reform judgment and to vacate the judgment, and

those two motions were denied by operation of law. The petition for

declaratory judgment was rendered moot by the grant of the plea to the

jurisdiction.




                            APPELLANTS’ BRIEF
                               Page 11 of 59
                 ISSUES PRESENTED FOR REVIEW

Issue 1:   Whether plaintiffs have standing.

Issue 2:   Whether Defendant Pres. Gregory Fenves violated the terms
           of the Littlefield Bequest to the University of Texas.

Issue 3:   Whether Defendant Pres. Gregory Fenves violated Texas
           Government Code §§ 2166.501 and 2166.5011, as well as the
           University of Texas System Board of Regents Rules 138 § 2
           and 60101 § 2.




                       STATEMENT OF FACTS

     On October 14, 1919, Major George Washington Littlefield made

the largest personal bequest to the University of Texas in the history of

the institution up to recent times. (CR 109).

     Part of the Bequest included funds for the design and creation of a

series of monuments, including those of Jefferson Davis and Woodrow

Wilson. (CR 211-12).

     Subsequent to Maj. Littlefield’s demise, the University of Texas

accepted the Bequest. (CR 117-18). The University used the Littlefield

funds to install the monuments and fountain commissioned by

Littlefield, including the monuments to Jefferson Davis and Woodrow



                           APPELLANTS’ BRIEF
                              Page 12 of 59
Wilson.   Maj. Littlefield directed their placement on the South Mall

through express language in his Will. Id.

      The monuments were fashioned, installed, and then dedicated on

April 29, 1933. (CR 119).

      Eighty-two years later, on August 13, 2015, President Gregory L.

Fenves ordered that the Jefferson Davis and Woodrow Wilson

monuments be removed. (CR 5, 125, 135).

      On August 14, 2015, plaintiffs initiated proceedings to prevent the

removal of the monuments from their ancient locations on the

University’s South Mall by applying for a temporary restraining order,

a temporary injunction, and declaratory judgment. (CR 3-26).

      At the preliminary hearing on August 27, 2015, the 53rd District

Court of Travis County, J. Crump presiding, denied plaintiffs’

application for a temporary injunction. (CR 265, 280). The denial of the

temporary restraining order was thereby rendered void. Id.

      On Sunday, August 30, 2015, the University removed the Davis

and Wilson monuments and is storing them at a location undisclosed to

plaintiffs.




                            APPELLANTS’ BRIEF
                               Page 13 of 59
                   SUMMARY OF THE ARGUMENT

     The trial court erroneously granted defendant’s plea to the

jurisdiction. Plaintiffs have both individual standing and associational

standing in this matter. In addition, plaintiffs have a constitutional

right to remedy, because they have been injured by defendant’s acts in

removal of two Texas monuments protected under Texas Government

Code §§ 2066.510 and 2066.5011.

     Defendant Pres. Gregory Fenves of the University of Texas at

Austin violated the terms of the Littlefield Bequest by removing the

Davis and Wilson monuments from the University’s South Mall. When

the University elected to accept the benefits of the Littlefield Bequest,

the University also accepted the burdens, which included the placement

of the monuments in their original locations.      The monuments were

controversial when dedicated and remain controversial to this day. The

fact of controversy is immaterial to the University’s election of benefits,

because controversy is one of the burdens to which the University

acquiesced in its election of benefits by accepting the Littlefield funds.

Plaintiffs have evidence, which they seek to clarify and wish to further

develop via the discovery process, as to whether the University fulfilled


                            APPELLANTS’ BRIEF
                               Page 14 of 59
all the original terms of the Littlefield Bequest. Plaintiffs contend that

other terms of the Littlefield Bequest have been wasted or uncompleted

subsequent to Maj. Littlefield’s demise, thus further breaching the

University’s promise to one of its greatest benefactors.

     Since UT Pres. Fenves has breached the terms of the Littlefield

Bequest, the University has wasted or never completed other terms of

the Bequest, and the University has abused the public trust, the

Bequest funds which the University accepted, enjoyed, and from which

it has benefited, should be disgorged in contemporary dollars and placed

in a trust used to administer the funds in accord with Maj. Littlefield’s

express purpose in his Bequest, with the Sons of Confederate Veterans,

Inc., as trustees for the benefit of the citizens of Texas in perpetuity. In

addition, plaintiffs seek the return of the Davis and Wilson monuments

to their ancient and original locations on the University’s South Mall.




                            APPELLANTS’ BRIEF
                               Page 15 of 59
                                ARGUMENT

                   I. PLAINTIFFS HAVE STANDING.

                            A. Standard of Review

     As set out in more detail below, individual plaintiffs Mr. Gary

Bray and Mr. David Littlefield have standing as individual plaintiffs as

provided in the Abbott rule.      Individual plaintiffs Messrs. Bray and

Littlefield also have taxpayer standing as provided for under the

Court’s TURF exception to the general rule for individual standing.

The Sons of Confederate Veterans, Inc., have associational standing

under the Texas Ass’n of Bus. rule.       Plaintiffs have a constitutional

right to a remedy at law for their common-law injury, which confers

standing under the Texas Constitution. For these reasons, the trial

court, J. Crump, committed reversible error in granting defendant’s

plea to the jurisdiction.

     Standing arises from two foundational sources under Texas law.

Firstly, the doctrine of separation of powers requires that judicial power

is applied to cases and controversies only. Texas Ass’n of Bus. v. Texas

Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (J. Cornyn); Sierra

Club v. Morton, 405 U.S. 727, 731 (1972).           Secondly, standing is


                              APPELLANTS’ BRIEF
                                 Page 16 of 59
conferred by the Texas open-courts provision of the Texas Constitution

to provide a remedy to injury. “All courts shall be open, and every

person for an injury done him, in his lands, goods, person, or reputation,

shall have remedy by due course of law.” TEX. CONST., art. 1, § 13.

Indeed, the second foundation for standing may well be construed as

conferring greater authority than the first under Texas law. “The right

of a plaintiff to maintain suit, while frequently treated as going to the

question of jurisdiction, has been said to go in reality to the right of the

plaintiff to relief rather than to the jurisdiction of the court to afford it.”

Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000) (quoting

21 C.J.S. Courts § 16, at 23 (1990)).

      Standing is a component of subject-matter jurisdiction that

requires the same standard as any determination of subject-matter

jurisdiction. Texas Ass’n of Bus., 852 S.W.2d at 446. In reviewing trial-

court orders that dismiss a cause for lack of subject-matter jurisdiction,

appellate courts should “construe the pleadings in favor of the plaintiff

and look to the pleader’s intent.”          Continental Cas. Ins. Co. v.

Functional Restoration Associates, 19 S.W.3d 393, 404 (Tex. 2000); see

also Texas Ass’n of Bus., 852 S.W.2d at 440 (citing Huston v. Federal

                             APPELLANTS’ BRIEF
                                Page 17 of 59
Deposit Insurance Corp., 663 S.W.2d 126, 129 (Tex. App.—Eastland

1983, writ ref’d n.r.e.)). Thus, a trial court must accept the plaintiff’s

allegations in the petition as true, unless the defendant proves plaintiff

made fraudulent allegations to confer jurisdiction. Dahl ex rel. Dahl v.

State, 92 S.W.3d 856, 861 (Tex. App.—Houston [14 Dist.] 2002, no pet.).

       Dismissal of causes on pleas to the jurisdiction are disfavored in

Texas jurisprudence, and continuance of the cause is favored, so that

when a trial court grants a plea to the jurisdiction, the cause is

dismissed without prejudice.1 See Tex. R. Civ. P. 80; Texas Ass’n of

Bus., 852 S.W.2d at 446; Stephanou v. Texas Medical Liability Ins.

Underwriting Assoc., 792 S.W.2d 498, 500 (Tex. App.—Houston [1st

Dist.] 1997, writ denied); Bell v. State Dep't of Highways & Pub.

Transp., 945 S.W.2d 292, 295 (Tex. App.—Houston [1st Dist.] 1997, writ

denied) (overturned on other grounds).

       Both individual and associational standing are recognized in

Texas, with at least one notable exception for taxpayers. The test for

individual standing has three elements:

       1)     the plaintiff must have personally suffered an “injury
              in fact--an invasion of a legally protected interest[,]
1  In the instant matter, the trial court erred by granting UT’s plea to the jurisdiction with
prejudice. Plaintiffs’ motion to reform the ruling was denied by operation of law.
                                   APPELLANTS’ BRIEF
                                      Page 18 of 59
           which is (a) concrete and particularized, and (b) actual
           or imminent, not conjectural or hypothetical[;”]

     2)    “there must be a causal connection between the injury
           and the conduct complained of-the injury has to be
           fairly traceable to the challenged action of the
           defendant and not the result of the independent action
           of some third party not before the court[;”] and

     3)    “it must be likely, as opposed to merely speculative,
           that the injury will be redressed by a favorable
           decision.”

Abbott v. G.G.E., et al., 463 S.W.3d 633 (Tex. App.—Austin Apr. 30,

2015) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)).

     Texas law provides for two independent tests for associational

standing. Texas Ass’n of Bus., 852 S.W.2d at 446-48.        One test for

associational standing is provided where the organization was not

established for the purpose of protecting the particular interest at issue

and it is not in the members’ best interest to allow the disinterested

organization to sue on the members’ behalf. Id. at 447. This is the test

that defendant erroneously relied upon in his plea to the jurisdiction

and on which the trial court presumably relied, also erroneously, in

granting the plea to the jurisdiction. (CR 268).



                           APPELLANTS’ BRIEF
                              Page 19 of 59
     The Texas Supreme Court provides for a general test for

associational standing, where the purpose of the organization is the

same purpose as that held by individual members. Id. at 446. Here,

the individual plaintiffs, members of the SCV, express the same

purpose in their suit against Pres. Gregory Fenves as does the Sons of

Confederate Veterans, Inc. (CR 256) (RR 2:20-23). The express purpose

of the SCV is “preserving the history and legacy of these heroes so that

future generations can understand the motives that animated the

Southern Cause.” (RR 2:20-23). Individual plaintiffs Messrs. Bray and

Littlefield also seek to preserve the history and legacy of Jefferson

Davis and other Southern heroes on behalf of future generations. (CR

256) (RR 2:20-23). Since the purpose and interests of the SCV is the

same as those of individual plaintiffs, Bray and Littlefield, the general

test for associational standing should be used to determine standing in

this matter.

     The general test for determination of associational standing is

that there “(a) shall be a real controversy between the parties, which (b)

will be actually determined by the judicial declaration sought.” Texas

Ass’n of Bus., 852 S.W.2d at 446 (quoting Board of Water Engineers v.


                           APPELLANTS’ BRIEF
                              Page 20 of 59
City of San Antonio, 283 S.W.2d 722, 724 (Tex. 1955)). This is the test

that plaintiffs apply in their analysis below.

     An exception to the requirement to show a particularized injury

for standing exists for taxpayers. Texans United for Reform & Freedom

(TURF) v. Saenz, 319 S.W.3d 914, 919 (Tex. App.—Austin 2000, no

pet.); see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555-56 (Tex.

2000) (overruled on other grounds) (where taxpayer brings action to

restrain illegal expenditure of tax money, he sues for himself, and court

holds taxpayer interest in subject matter is sufficient to support action)

(quoting Hoffmann v. Davis, 100 S.W.2d 94, 95 (Tex. 1937)).           “[A]

narrow exception to that rule—a taxpayer has standing to seek

prospective injunctive or declarative relief to restrain the illegal

expenditure of public funds, even without showing a distinct injury.”

[emphasis original] TURF, 319 S.W.3d at 919.

     Texas has also recognized at least three distinct constitutional

guarantees for access to open courts. TEX. CONST., art. 1, § 13; Texas

Ass’n of Bus., 852 S.W.2d at 448. One of these distinctions is that

meaningful legal remedies must be provided for citizens to assert “well-

established common law causes of action.”        Id.; Sax v. Votteler, 648

                            APPELLANTS’ BRIEF
                               Page 21 of 59
S.W.2d 661, 665-66 (Tex. 1983).      A plaintiff’s right to bring suit for

common-law injuries should alone confer jurisdiction, because of the

constitutional right to a meaningful remedy.       Dubai Petroleum, 12

S.W.3d at 76-77.


                B. Plaintiffs Have Individual Standing
                       Under the Abbott Rule.

     Individual standing is determined by a three-part test.

     1)    “The plaintiff must have personally suffered an “injury
           in fact--an invasion of a legally protected interest[,]
           which is (a) concrete and particularized, and (b) actual
           or imminent, not conjectural or hypothetical[;”]

     2)    “There must be a causal connection between the injury
           and the conduct complained of-the injury has to be
           fairly traceable to the challenged action of the
           defendant and not the result of the independent action
           of some third party not before the court[;”] and

     3)    “It must be likely, as opposed to merely speculative,
           that the injury will be redressed by a favorable
           decision.”

Abbott, 463 S.W.3d at 633.

     Individual plaintiffs Gary David Bray and David Stephen

Littlefield have personally suffered an injury in fact, an invasion of a

legally-protected interest, which is concrete and particularized, that

was imminent before being actual, and is not conjectural or

                             APPELLANTS’ BRIEF
                                Page 22 of 59
hypothetical. (CR 254-55). Both Bray and Littlefield were threatened

with imminent injury and then actually injured by Defendant Pres.

Fenves’ announcement that he was going to have the Davis and Wilson

monuments moved and then when Defendant Pres. Fenves had the

monuments moved. Id. Bray’s and Littlefield’s injuries arise from their

identity as a descendant of Confederate veterans and Bray’s and

Littlefield’s public affirmation of the values of the military service of

their ancestors in the Civil War, in the restoration and reconciliation of

the Nation following the war, and World War I, the same principles to

which the monuments were dedicated.2 (CR 119). Littlefield’s injury

also includes his status as a Littlefield collateral descendant. (RR 2:29-

30). The removal of the statues destroys the University’s and Texas’

efforts to recognize and honor the military dead of the Civil War, World

War I, and indeed American veterans of all wars, since the monument

of   George      Washington,        Commander-in-Chief            of   the    American

2  Defendant spuriously suggests that the monuments were dedicated to racism and white
supremacy, (CR 117-18) and the record lacks any evidence to support such a claim. The only
support for this theory is provided in the wan musings of the Fenves committee, composed of
members with no competency in veterans’ memorials, the law that protects such monuments
from desecration, and, in particular, the specifics of the Littlefield Bequest or the rules
promulgated by the UT System Board of Regents for the protection and administration of
bequests to the University. Indeed, the engraved pedestal on the Woodrow Wilson monument
dedicates the statute to Wilson as “President of the United States, President of Princeton
University, Professor of Political Science, Founder of the League of Nations.” Plaintiffs
question which of these rubrics expresses racism or white supremacy.
                                  APPELLANTS’ BRIEF
                                     Page 23 of 59
Revolutionary armies, is included among the monuments on the

University’s South Mall.        (CR 110).   Bray and Littlefield have

personally suffered injuries from the removal of the monuments,

because, unlike most people, they have publicly affirmed their

commitment to the same American ideals expressed and commemorated

in the desecrated monuments.

      A causal connection exists between the injury and the conduct

complained of. Defendant Pres. Fenves announced the removal of the

Davis and Wilson monuments, and then Defendant Pres. Fenves had

the monuments removed. (CR 5). These acts are both the injuries and

the conduct complained of—because removal of the monuments was a

public repudiation of the values Maj. Littlefield and the University had

agreed to promote as a condition of acceptance of the Littlefield

Bequest, which Bray and Littlefield publicly affirmed, and which the

University did promote for eighty-two years, before illegally removing

the monuments. The University’s removal of the monuments and the

University’s public announcement of intended removal are the

plaintiffs’ direct and actual injuries.




                             APPELLANTS’ BRIEF
                                Page 24 of 59
        It is highly likely that plaintiffs’ injuries will be redressed by a

favorable decision.     Originally, plaintiffs sought injunctive relief to

prevent Defendant Pres. Fenves’ removal of the Davis and Wilson

monuments. (CR 3-29). Now, however, plaintiffs seek a declaratory

judgment that removal of the monuments was illegal, that Defendant

Pres.    Fenves    publicly   repudiated   the   Littlefield Bequest,   that

Defendant Pres. Fenves and the University must return the

monuments to their original locations, pursuant to the University’s

election to accept the benefits of the Littlefield Bequest, and that a trust

for the citizens of Texas held by the Sons of Confederate Veterans, Inc.,

should be established with funds disgorged from the University of Texas

and Student Government.         The redress sought by plaintiffs will be

available by a favorable decision.

        The individual plaintiffs have standing because the individual

plaintiffs have personally suffered injuries in fact that are actual,

concrete, and particularized, that have been directly and actually

caused by Defendant Pres. Fenves’ announced plans and subsequent

removal of statutorily-protected Texas monuments, and which injuries

can be redressed by a favorable court decision.


                              APPELLANTS’ BRIEF
                                 Page 25 of 59
   C. Plaintiffs Are Excepted to the Requirement for Particularized
         Injury, Because Individual Plaintiffs Are Taxpayers.

     Even 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

Court’s TURF exception. See 319 S.W.3d at 919. It is well settled that

Texas taxpayers have standing to bring suit for prospective injunctive

or declarative relief to restrain the illegal expenditure of public funds,

without showing a distinct injury. Id. Bray has been a Texas taxpayer

his entire life; Littlefield has been a Texas taxpayer his entire life, until

his recent retirement to Montana. (RR 2:29-30). Individual plaintiffs

sought injunctive and declaratory relief at the trial court to restrain

Defendant Pres. Fenves from expending public funds in the illegal

removal of Texas monuments. (CR 3-29). Since Bray and Littlefield

have met the elements for this narrow exception to the general rule for

individual standing, Bray and Littlefield are accorded standing for the

purposes of this appeal and this litigation.




                            APPELLANTS’ BRIEF
                               Page 26 of 59
D. The Sons of Confederate Veterans, Inc., Has Associational Standing
                Under Texas Association of Business.

     The proper test to determine associational standing requires that

there “(a) shall be a real controversy between the parties, which (b) will

be actually determined by the judicial declaration sought.” Texas Ass’n

of Bus., 852 S.W.2d at 446.

     A real controversy exists between the parties. It is the contention

of the SCV that the Davis and Wilson monuments should be returned to

their South-Mall locations as agreed to by the University as a

fundamental condition of its election of the benefits of the Littlefield

Bequest. (CR 3-29). Defendant Pres. Fenves erroneously argues that

he has unique authority to remove monuments to Texas history,

permitting the removal of the Davis and Wilson monuments. (CR 57-

67). Whether or not Defendant President Fenves has such authority

and whether that authority includes the right to violate the express

terms of the University’s agreement leading to the Littlefield Bequest

and removal of the Wilson and Davis monuments is a real controversy.

     In the trial-court proceedings, defendant incorrectly represented

that no real controversy between the parties exists.            (CR 61).

Specifically, the University alleged that plaintiffs do not dispute that

                              APPELLANTS’ BRIEF
                                 Page 27 of 59
the Dolph Briscoe Center for American History is an appropriate place

for the Davis and Wilson monuments. (CR 61-62). This assertion is

simply not true. Defendant cites “Plaintiffs’ Am. Pet at 3, ¶ 9.” No such

statement exists at that citation, nor anywhere in any pleading or

statement. The truth is that, in accord with 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. (CR 212). This condition

was accepted and honored by the University for eighty-two years. In

light of the unauthorized and illegal removal of the monuments from

the South Mall, the proper place of the monuments is a fact-issue

dispute and is an actual controversy that precludes the granting of a

plea to the jurisdiction and requires the fact finder to resolve the issue

at trial. Texas Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217,

226-27 (Tex. 2004).

     If the evidence creates a fact question regarding the
     jurisdictional issue, then the trial court cannot grant the plea
     to the jurisdiction, and the fact issue will be resolved by the
     fact finder. However, if the relevant evidence is undisputed or
     fails to raise a fact question on the jurisdictional issue, the
     trial court rules on the plea to the jurisdiction as a matter of
     law.


                           APPELLANTS’ BRIEF
                              Page 28 of 59
Miranda, 133 S.W.3d at 227-28. Here, the parties have a fact dispute

relative to jurisdiction that defendant materially misrepresented to the

trial court, that should have precluded a grant for the plea to the

jurisdiction, and which this Court should correct by reversing and

remanding this matter for trial on the merits.

     The controversy will be actually determined by the judicial

declaration sought.   The relief sought, which includes a declaratory

judgment relative to the monuments, (CR 33), will determine the

disposition of the monuments.

     The Sons of Confederate Veterans, Inc., has associational

standing, because the SCV cause establishes a real controversy that

will actually be determined by the judicial declaration sought.


     E. Plaintiffs Have Standing, Because the Texas Constitution
                  Guarantees Open Access to Courts.

     The Texas Constitution recognizes that citizens must have access

to meaningful legal remedies for common law injuries. TEX. CONST.,

art. 1, § 13; Texas Ass’n of Bus., 852 S.W.2d at 448; Dubai Petroleum, 12

S.W.3d at 76-77.      Plaintiffs seek enforcement of the express and

common law terms of the Littlefield Bequest, which was accepted by the

                           APPELLANTS’ BRIEF
                              Page 29 of 59
University by the election of benefits, which stood undisturbed,

unchallenged, and detrimentally relied upon by generations of Texans

as donee beneficiaries for eighty-two years. In addition to the express

terms of the Littlefield Bequest itself, the common law doctrines of

Election of Benefits and Promissory Estoppel preclude the University

from moving the monuments and from wasting the conveyed funds and

improvements on the land transferred from Maj. Littlefield as donor

and testator to the University of Texas almost a century ago.         Any

donee beneficiary, defined under the express terms of the Littlefield

Bequest as any citizen of Texas who matures after 1860, has standing

to enforce the terms of the Bequest. If Bray and Littlefield, as well as

the Sons of Confederate Veterans, Inc., whose express purpose is to

preserve the history and legacy of the Confederate Soldier for future

generations, have no standing under the common law, or any other law,

then all bequests made to a public institution in trust for the citizens of

Texas will be worth less than dust, once the donor or testator perishes.

     The Texas Constitution should, if it does not already do so in the

interpretation of this Court, allow citizens of Texas standing to enforce




                            APPELLANTS’ BRIEF
                               Page 30 of 59
gifts or bequests given and accepted for the benefit of Texas citizens and

held in trust by government entities.


                         F. Conclusion on Standing

       Plaintiffs Bray and Littlefield have standing as individual

plaintiffs under the Abbott rule. 463 S.W.3d at 633.

       Plaintiffs Bray and Littlefield have taxpayer standing as provided

for under the TURF exception. 319 S.W.3d at 919.

       Plaintiff   the   Sons     of   Confederate   Veterans,   Inc.,   have

associational standing under Texas Ass’n of Bus. 852 S.W.2d at 446.

       Plaintiffs have a constitutional right to a remedy at law for their

common-law injury, which confers standing. TEX. CONST., art. 1, § 13.

       The trial court, J. Crump, committed reversible error in granting

defendant’s plea to the jurisdiction.


 II.    DEFENDANT PRESIDENT FENVES VIOLATED THE TERMS
               OF THE LITTLEFIELD BEQUEST.

       The University violated terms of the Littlefield Bequest, through

waste, neglect, and express repudiation.        Accordingly, the University

should be required to disgorge the funds provided by Maj. Littlefield

some ninety years ago in restitution for breach of the Bequest’s terms to
                                APPELLANTS’ BRIEF
                                   Page 31 of 59
avoid unfair and unjust enrichment; to plaintiffs as trustees for the

Littlefield Bequest and agree to return all statues and structures where

Maj. Littlefield, sculptor Pompeo Coppini, and architect Paul Cret

intended the statues to be, in a place of prominence on the South Mall;

and to maintain all facets of the Bequest with due care under authority

of the plaintiffs as trustees of the Bequest.


 A. The Littlefield Conveyance Is a Bequest as Understood in the Law
             as It Existed at the Time of the Conveyance.

     The character of a testamentary gift must be determined using

the law as it existed when the will was executed.

     The difficult task of determining what interest the testator
     intended to devise is the province of the court. In resolving a
     controversy relating to the estate, interest, or amount
     passing under a particular devise or bequest, the court will
     consider the general scheme of the instrument in question,
     the provisions regulation descent and distribution, the law as
     it existed when the will was executed, the rights and property
     of the testator, and his or her knowledge regarding the
     persons who were objects of his or her bounty in addition to
     the     rules  governing     the   interpretation    of   wills
     generally. (emphasis added)

74 Texas Jurisprudence 3d Wills § 279 (2014); see Haupt v. Michealis,

231 S.W. 706, 709 (Tex. 1921).




                            APPELLANTS’ BRIEF
                               Page 32 of 59
     With respect to the subject matter of a testamentary gift, the plain

language of the instrument in question should be given a construction

that most nearly comports with the intention of the testator as

expressed in the instrument as a whole. “In construing a will[,] all its

provisions should be looked to for the purpose of ascertaining what the

real intention of the testatrix was[,] and, if this can be ascertained from

the language of the instrument, . . . any particular paragraph of the

will, which, considered alone, would indicate a contrary intent must

yield to the intention manifested by the whole.” Lindsey v. Rose, 175

S.W. 829, 831-32 (Tex. 1915); Lane v. Sherrill, 614 S.W.2d 623, 619

(Tex. App.—Austin 1981, no pet.); see Perfect Union Lodge v. Interfirst

Bank of San Antonio, 748 S.W.2d 218, 220-24 (Tex. 1988) (citing Dulin

v. Moore, 70 S.W. 742, 742-43 (Tex. 1902) (where plain language of will

provides express intention of testatrix, court must give effect to

intention unless prohibited by law)); see also In re Walker Estate, No.

13-11-00438 CV (Tex. App.——Corpus Christi-Edinburg August 23,

2012, no pet.) (mem.op.) (citing McMurray v. Stanley, 6 S.W. 412, 415

(Tex. 1887) (presumed intention of testator ought never be given

controlling effect, where, by clear language of will testator by his own


                            APPELLANTS’ BRIEF
                               Page 33 of 59
language has made intention clear)).

     A bequest is “a gift by will of personal property; a legacy.” Black’s

Law Dictionary 128 (2d ed. 1910). A specific bequest is “one whereby

the testator gives to the legatee all of his property of a certain class or

kind; as all his pure personalty.” Id. The second edition of Black’s Law

Dictionary does not recognize the term “charitable bequest” nor

“charitable trust,” although the dictionary recognizes over twenty other

kinds of trusts.

     Three elements are necessary to create a trust. McMurray, 69

S.W. at 415. “First, that the words of the testator ought to be construed

as imperative, and hence imposing on the trustee an obligation;

secondly, that the subject to which the obligation relates must be

certain; thirdly, that the person intended to be the beneficiary under

the trust be also certain.” Id. In Dulin, the testatrix expressed in her

plain language that she was imposing an obligation to receive and

control property by a trustee.      “I hereby appoint R. R. Dulin, of

Sherman, Texas, trustee to receive and control the property bequeathed

and devised to the children of A. B. Moore, and Martha Laura

Steedman, by me.” 70 S.W. at 742. The trustee was obliged with a


                            APPELLANTS’ BRIEF
                               Page 34 of 59
certain object, the property bequeathed to A.B. Moore and Martha

Laura Steedman.         Id. The intended beneficiaries are certain: A.B.

Moore and Martha Laura Steedman.                    The three elements for the

creation of a trust are satisfied. Id. at 743.

      On November 22, 1920, Maj. George W. Littlefield made a

testamentary gift of $250,000.00 to the University of Texas (“UT”) for

the commission and installation of a South Gateway to the campus in

Austin. (CR 211-12).

      The plain language of the Littlefield Will provides:

      I give and direct my executors hereinafter named to pay to
      Will C. Hogg of Houston, Texas, H. A. Wroe, of Austin, Texas,
      and the person who occupies the position of President of the
      University of Texas as trustees the sum of two hundred
      thousand dollars ($200,000.00) said committee to use said
      sum or so much thereof as may be necessary to erect a
      massive bronze arch over the south entrance to the campus of
      the University of Texas, in Austin, Texas.3

(CR 211).

      In this language, Maj. Littlefield creates an obligation in trustees.

Trustees Will C. Hogg, H. A. Wroe, and the President of the University

of Texas must erect a monumental bronze arch over the south entrance



3
   Maj. Littlefield continues with lengthy and detailed directions for the commission and
installation of the statues now sited on the south mall as intended in the Will.
                                 APPELLANTS’ BRIEF
                                    Page 35 of 59
to the University.4 Id. This satisfies the first element for the creation

of a trust, the creation of an obligation on the trustee.

       Maj. Littlefield created a certain subject, which the obligation

relates to, namely the commissioning of the massive bronze arch and

monuments to Confederate heroes.                   Id.    This satisfies the second

element for the creation of a trust, the naming of a certain subject for

the obligation.

       However, Maj. Littlefield did not name a certain intended

beneficiary as the object of his bounty. Because Maj. Littlefield did not

name a certain intended beneficiary for a trust, the terms of the trust

must fail. McMurray, 69 S.W. at 415; Dulin, 70 S.W. at 742. Maj.

Littlefield did not create a trust.

       Defendant claims, and in its closing remarks the trial court

agreed, that Maj. Littlefield created a charitable trust by function of

law. (CR 62-64, 134). Texas Property Code § 123.001(1)(2). However,

the Texas Property Code was enacted in 1983 by the 68th Legislature.

Tex. Prop. Code Ann. Preface 1 (West 2014). Since the character of a

testamentary gift must be determined using the extant law at the time
4
   UT eventually created the Littlefield Fountain and the accompanying statues leading up the
Main Building, which modification of design was contemplated in the Littlefield Will and
allowable, “giving prominence however to the statues of the men named above.” (CR 212).
                                  APPELLANTS’ BRIEF
                                     Page 36 of 59
of the will’s execution, Haupt, 231 S.W. at 709, provisions of the Texas

Property Code are immaterial. They did not exist at the time the will

was executed in 1920 and cannot now be considered as a basis for

interpreting Major Littlefield’s testamentary gift made many decades

before.

     The language of the Littlefield Will most nearly comports with the

creation of a testamentary bequest.         Maj. Littlefield made a

testamentary gift of personal property in the amount of $250,000.00 to

the University of Texas for the design and construction of a grand

memorial arch. (CR 211-12). The $250,000.00 was Littlefield’s personal

property and, therefore, a bequest.

     In contrast, the Littlefield conveyance is more than likely not a

gift, because a gift is “a voluntary conveyance of land, or transfer of

goods, from one person to another, made gratuitously, and not upon any

consideration of blood or money.” Black’s Law Dictionary 540 (2d. ed.

1910). The Littlefield conveyance is not from one person to another

person, nor is it a transfer of land, nor of goods, nor for any

consideration.   Since these requirements of a gift are not met, the




                           APPELLANTS’ BRIEF
                              Page 37 of 59
Littlefield conveyance cannot be said to be a gift, let alone a charitable

gift.

        Maj. Littlefield uses both terms “gift” and “trust” in his Will. (CR

209-43). Given the law, extant at the time of Maj. Littlefield’s execution

of his Will, the conveyances are most plausibly construed as bequests

and not trusts, because testator did not provide an express beneficiary

to create a trust and the conveyance does not meet the test for a

testamentary gift.


                 B. Defendant President Fenves Breached
                   the Terms of the Littlefield Bequest.

        One may not at the same time take under a will and claim

adversely under it. Hodge v. Ellis, 277 S.W.2d 900, 908-09 (Tex. 1955);

see Edsall v. Hutchings, 143 S.W.2d 700, 703 (Tex. Civ. App.—Eastland

1940, no writ) (quoting Dakan v. Dakan, 83 S.W.2d 620, 624 (Tex.

1935)):

        [A]n election under a will is defined in the following
        language: “Election is the obligation imposed upon a party to
        choose between two inconsistent or alternative rights or
        claims in cases where there is a clear intention of the person
        from whom he derives one that he should not enjoy both, the
        principle being that one shall not take any beneficial interest
        under a will, and at the same time set up any right or claim
        of his own, even if legal and well founded, which would defeat

                             APPELLANTS’ BRIEF
                                Page 38 of 59
     or in any way prevent the full effect and operation of every
     part of the will. The principle underlying the doctrine of
     election is not statutory, but is purely equitable, and was
     originally derived from the civil law, although in some states
     there are statutes declaratory of, or applying, the equitable
     principle to particular cases. The doctrine of election is
     generally regarded as being founded on the intention of the
     testator.”

           As early as 1859, the Supreme Court of this state, in
     the case of Philleo v. Holliday et al., 24 Tex. 38, in discussing
     the doctrine of an election under a will, announced the
     following rule: “The principle of election is, that he who
     accepts a benefit under a will, must adopt the whole contents
     of the instrument, so far as it concerns him; conforming to its
     provisions, and renouncing every right inconsistent with it;
     as where the wife claims something under the will which will
     disappoint the will.”

          The foregoing rule has been uniformly followed by the
     courts of this state. See Smith v. Butler, 19 S.W. 1083 [(Tex.
     1892).]

     Once a benefited party elects to accept the terms of a

testamentary gift or bequest, with both its benefits and its burdens, the

benefited party is estopped from contesting the provisions of any part of

the will that transferred the interest.

     The record reveals conclusively that plaintiff had elected to
     take under the terms of the will of her deceased husband and,
     having done so with full knowledge of its provisions, she was
     then estopped to attack or contest other provisions of the will
     naming testator's sisters as beneficiaries. Since plaintiff has,
     according to her own pleadings and admissions, elected to
     take under the will[,] she must accept its burdens as well as

                            APPELLANTS’ BRIEF
                               Page 39 of 59
     its benefits. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620;
     Edsall v. Hutchings, Tex. Civ. App., 143 S.W.2d 700 (writ
     refused); Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670.

     The rule is well stated in 97 C.J.S. Wills Sec. 1237, p. 9, in
     the following language:

     “The principle is that one shall not take any beneficial
     interest under a will, and at the same time reject its adverse
     provisions, or set up any right or claim of his own, even if
     legal and well founded, which would defeat or in any way
     prevent the full effect and operation of every part of the will,
     or that he who accepts a benefit under a will must adopt the
     whole contents of the instrument, conforming to all its
     provisions and renouncing every right inconsistent with it.”

Gillman v. Gillman, 313 S.W.2d 931, 937 (Tex. Civ. App.—Amarillo

1958, writ refused n.r.e.).

     The University of Texas accepted the Littlefield Bequest in its

entirety, which includes funds for the commission and installation of the

Littlefield Fountain and its accompanying monuments on the South

Mall, design and construction of the Littlefield Dormitory for Women,

and the initial funds for the Main Building, and the Texas Tower, etc.

(CR 209-43). The University elected to accept the bequeathed funds for

the construction of these campus improvements with certain burdens or

conditions upon the acceptance of the funds.        Id.   The University

promised not to move its main campus away from its current location for


                              APPELLANTS’ BRIEF
                                 Page 40 of 59
21 years subsequent to Maj. Littlefield’s demise, complying with an

express term of the Will. (CR 213-14). The University promised to use

the Littlefield Dormitory for the housing of freshmen women, complying

with an express term of the Will. (CR 212-13). The University also

promised to place the South Mall statues in a place of prominence on the

South Mall, in compliance with an express term of the Will. (CR 211-

12).

       Once the University accepted the benefits of the Bequest, the

University was estopped from denying any portion of the entire package

of benefits and burdens. Indeed, the University “must adopt the whole

contents of the instrument, conforming to all its provisions and

renouncing every right inconsistent with it.” Gillman, 313 S.W.2d at

937. The University not only accepted and affirmatively acted upon all

the provisions of the Littlefield Will, but the University did so eighty-two

years ago, creating a nearly ancient pattern of Texans’ reliance on the

University to continue its duty to care for the buildings and significant

works of art constructed from the Littlefield legacy.

       Without legal authority and in breach of the Littlefield Will,

Defendant President Fenves has repudiated an express testamentary


                            APPELLANTS’ BRIEF
                               Page 41 of 59
term, one which Maj. Littlefield plainly stated was of the greatest

significance. (CR 211-12). Defendant President Fenves’ knowing and

willful repudiation of Maj. Littlefield’s testamentary legacy to the

University calls into question the integrity of the University relative to

all bequests. If the president of the flagship University of the State of

Texas can publicly repudiate arguably the most significant bequest in

the history of the University and of Texas, all other donors to the

University are put on fair warning that the University of Texas System

believes it has no duty to comply with donors’ express terms of bequests

or gifts. Indeed, it is unconscionable for the University to take gifts from

the living, promise performance of an express condition of acceptance,

then subsequent to the donor’s demise, proudly announce to all the

world that the University will ignore the binding conditions of

acceptance.

     Plaintiffs have standing for suit against defendant as donee

beneficiaries, i.e. “a third-party beneficiary who is intended to receive

the benefit of the contract’s performance as a gift from the promisee.”

Black’s Law Dictionary 176 (9th ed. 2009). Maj. Littlefield bequeathed

funds to the University for the establishment of University buildings,


                            APPELLANTS’ BRIEF
                               Page 42 of 59
the publication of a history of the United States, an endowed chair in

American history, a fund to purchase scholarly materials concerning the

history of the South, and a monumental south entrance to the campus.

(CR 209-16). Maj. Littlefield’s purpose was to create donee beneficiaries

in “the children of the south [who] may be truthfully taught and [the]

persons maturing since 1860 may be given the opportunity to inform

themselves correctly concerning the south and especially the Southern

Confederacy.”    (CR 211).    This purpose was clearly Maj. Littlefield’s

intent in funding the publication of a history of the United States and

could be construed to also be the purpose of his testamentary gift for the

memorials.

     Maj. Littlefield reiterated the class of donee beneficiaries further in

his Will. “I believe that if [the Regents] pass such a resolution [to allow

construction of a main building, to keep the campus in its current

location] and accept this gift, their successors and the people of the state

would feel themselves morally bound thereby.” (CR 226). Littlefield

plainly stated that the people of the State of Texas should feel morally

bound to the terms of his Will, if the Regents accepted the Littlefield

Bequest.     Maj. Littlefield could not have been any clearer in his


                             APPELLANTS’ BRIEF
                                Page 43 of 59
intention that the people of the State of Texas, and in particular those

maturing after 1860, were to be and now are donee beneficiaries of his

Bequest and morally bound.

     Maj. Littlefield’s Bequest created a quasi-contractual obligation

between the University and the citizens of Texas as donee beneficiaries.

The University’s acceptance of the Littlefield Bequest, the University’s

conduct in compliance with the terms of the Bequest for the past eighty-

two years, and Texas citizens’ enjoyment of the facilities and the

significant expression of public art established a benefit to Texans that

grants any Texan standing for suit against the University’s Confederate

veteran monuments that were controversial when designed and

dedicated and remain controversial to this day. Further, the University

is estopped from repudiating any terms of the Bequest, because the

University elected to accept the benefits of the Bequest and must,

therefore, also continue to accept the burdens.




                           APPELLANTS’ BRIEF
                              Page 44 of 59
      C. The University Is Barred from Moving the Monuments under
                  the Doctrine of Quasi-Estoppel.

     Regardless of whether Maj. Littlefield’s conveyance to the

University of Texas was a bequest or a trust, the University is barred

from moving the monuments under the doctrine of quasi-estoppel.

     Estoppel by contract or deed binds a party by the terms of a

contract, unless the contract is set aside or annulled.         National

Educators Life Ins. Co. v. Master Video Systems, Inc., 398 S.W.2d 358,

365 (Tex. Civ. App.—Corpus Christi 1965, writ ref’d n.r.e.); 34 Texas

Jurisprudence 3d Estoppel § 2 (2014). Estoppel by contract precludes

parties to a valid instrument from denying its effect. Angell v. Bailey,

225 S.W.3d 834, 841-42 (Tex. App.—El Paso 2007, no pet.).        “Quasi-

estoppel precludes a party from asserting, to another's disadvantage, a

right inconsistent with a position previously taken. The doctrine applies

when it would be unconscionable to allow a person to maintain a

position inconsistent with one to which he acquiesced, or from which he

accepted a benefit.”   Lopez v. Munoz, Hockema & Reed, L.L.P., 22

S.W.3d 857, 864 (Tex. 2000).

     A party may not accept the beneficial part of a transaction and

repudiate the disadvantageous part. “It is a well settled general rule

                           APPELLANTS’ BRIEF
                              Page 45 of 59
that one who accepts the benefits of a contract must also assume its

burdens.” Terrazas v. Carroll, 277 S.W.2d 274, 277 (Tex. Civ. App.—

Eastland 1955, no writ). A party who retains benefits in a transaction

cannot deny its obligation and is estopped from taking an inconsistent

position. Theriot v. Smith, 263 S.W.2d 181, 183 (Tex. Civ. App.—Waco

1953, writ dism’d); Baylor Health Care System v. Employers

Reinsurance Corp., 492 F.3d 318, 325 (5th Cir. 2007). Agreements bear

an implied condition that one who accepts benefits under an instrument

shall adopt the whole instrument, comply with all provisions, and

renounce any inconsistent rights. Daniel v. Goesl, 341 S.W.2d 892, 895

(Tex. 1960); see Biko v. Siemens Corp., 246 S.W.3d 148, 161-62 (Tex.

App.—Dallas 2007, no pet.) (where plaintiffs signed letters and accepted

considerable financial award, plaintiffs affirmed agreement and agreed

to be bound).

     The University accepted the benefits conferred by the Littlefield

Bequest, and, in accepting the benefits, the University bound itself to

each and every provision of the Bequest applicable to the University,

including those provisions the University has found to be burdensome.

Since the University accepted all the provisions of the Bequest and has


                           APPELLANTS’ BRIEF
                              Page 46 of 59
arguably continued to comply with the terms for eighty-two years, the

University is now estopped from denying effect to any provision, and

more particularly from removing the Davis and Wilson monuments from

their prior sites.


               D. The Proper Remedy for Breach of the Bequest
                   Is Disgorgement of the Bequest Corpus.

      Where a party has been unjustly enriched, the proper remedy is

restitution.    Black’s Law Dictionary 1428 (9th ed.).        Maj. Littlefield

entered into a relationship with the University that he would pay for the

construction of buildings and monuments, so long as the University

would give prominence of place on the South Mall to the five named

statues, particularly to the one of Jefferson Davis. If Maj. Littlefield

conferred a benefit upon the University pursuant to an agreement, even

if the agreement is no longer in effect, the agreement is binding and

enforceable by citizens of the State of Texas to recover the specific

benefit or its value in restitution.


                     E. Conclusion on Breach of the Bequest

      The University violated terms of the Littlefield Bequest, through

waste, neglect, and express repudiation.           The University should,

                               APPELLANTS’ BRIEF
                                  Page 47 of 59
therefore, disgorge the funds provided by Maj. Littlefield some ninety-six

years ago in restitution for unjust enrichment to plaintiffs as trustees for

the Littlefield Bequest, and the University should produce the History of

the United States paid for by Maj. Littlefield, place a scholar in the

endowed chair that Maj. Littlefield provided for, and agree to replace

and leave all statues and structures where Maj. Littlefield, sculptor

Pompeo Coppini, architect Paul Cret, and UT President Vinson intended

the statues to be, in a place of prominence on the South Mall, and to

maintain all facets of the Bequest with due care under authority of the

plaintiffs as trustees of the Bequest.


        III.   DEFENDANT PRESIDENT FENVES VIOLATED
                 THE TEXAS GOVERNMENT CODE.

               A. The Littlefield Monuments Are Protected
                    by the Monument Protection Act.

      The canons of statutory construction allow for in pari materia

review of statutes with inconsistent provisions.            Black’s Law

Dictionary 862 (9th edition 2009).       The Monument Protection Act

provides for two adjacent sections that define what a monument or

memorial is.    Texas Government Code §§ 2166.501 and 2166.5011.

Here, two sections define which monuments or memorials are subject

                            APPELLANTS’ BRIEF
                               Page 48 of 59
to statutory protection, and the two sections should be reviewed in

pari materia to construe complete legislative intent on this issue.

     Section 2166.501(a) provides that monuments or memorials to

“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” on state-owned land,

private land, federal land, or on property in another state are

included.

     Section 2166.5011(a)(1)(2) provides that          a   monument or

memorial includes “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.”

     A monument or memorial, as defined under these sections, may

be removed or altered only “(1) by the legislature; (2) by the Texas

Historical Commission; (3) by the State Preservation Board;” or (4) for

construction, repairs, or improvements to the monument or memorial.

Id. at Sec. 2166.5011(b)(1-4)(c).




                            APPELLANTS’ BRIEF
                               Page 49 of 59
     The monuments of Jefferson Davis and Woodrow Wilson,

previously on the University’s South Mall, are monuments to a Texas

hero, the President of the Confederate States of America, Jefferson

Davis, (CR 212), when Texas was a member state of the Confederate

States. The second monument is to a man of historical significance to

Texans and Texas, U.S. President Woodrow Wilson. (CR 176). Mr.

Wilson’s monument honors him for his role as President of the United

States during wartime, World War I, President of Princeton

University, and the Founder of the League of Nations, the first

international peace organization. Id. Both monuments were on state-

owned land, the campus of the University of Texas at Austin. Id. The

Davis   and Wilson    monuments are      protected   “monuments or

memorials” as contemplated under Texas Gov’t Code §§ 2166.501(a)

and 5011(a)(1)(2).

     The statue of Jefferson Davis was a permanent monument,

having been in place for eighty-two years and intended to remain in

place in perpetuity. (CR 212). The Davis monument was located on

the campus of the University of Texas at Austin, which is state

property. (CR 176). The Davis monument honored Jefferson Davis as


                         APPELLANTS’ BRIEF
                            Page 50 of 59
President of the Confederacy, Id., which role included his position as

Commander-in-Chief of the Confederate armies during wartime,

including those Confederate armies in Texas.     (CR 9).   The Davis

monument also honored Jefferson Davis as United States Secretary of

War in the 1850s, during Indian wars in West Texas, and as a United

States Senator. Id. Mr. 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. (RR 2:70-72). Since Jefferson Davis paid

taxes on land in Texas, he was a citizen of Texas, as construed under

the law of the time. (RR 2:73-74). Defendant alleges that Jefferson

Davis was not a Texas citizen, (RR 2:75-78), establishing a contest of

legislative intent and material fact in this matter. Jefferson Davis’s

citizenship is a fact-issue dispute and is an actual controversy that

precludes the granting of a plea to the jurisdiction and requires the

fact finder to resolve the issue at trial. Miranda, 133 S.W.3d at 226-

27. But even if Jefferson Davis were not a Texas citizen, the Davis

monument was dedicated to a person of historical significance to

Texans and Texas, because Mr. Davis was the president of the

Confederate nation that Texas joined.     The Davis monument is a


                          APPELLANTS’ BRIEF
                             Page 51 of 59
protected monument, as contemplated under Texas Government Code

§ 2166.5011(a)(1)(2).

     The Davis and Wilson monuments were removed after

prompting from the University of Texas Student Government, (CR

114), and directly ordered to be removed by Defendant Pres. Greg

Fenves. (CR 5). Neither Defendant Pres. Fenves nor UT’s Student

Government     are   the   Texas   legislature,   the   Texas   Historical

Commission, or the State Preservation Board, and it is undisputed

that the monuments were not removed for construction, repairs, or

improvements.     Nor does the record reflect that Defendant Pres.

Fenves, or anyone else from UT, sought advice on the Littlefield

Monuments from any of the Texas entities with statutory competency

in Texas monuments or memorials. Instead, Defendant Pres. Fenves

appointed a South-Mall committee chaired by UT’s Vice-President for

Diversity and Community Engagement Gregory Vincent. (CR 115-16).

Shortly thereafter, Defendant Pres. Fenves ordered the removal of the

Texas monuments of Davis and Wilson in direct violation of the

statutory authorization required under the Texas Government Code.




                           APPELLANTS’ BRIEF
                              Page 52 of 59
B. The University of Texas Is Not Exempt from the Requirements of
                  the Monument Protection Act.

     The University of Texas at Austin is not exempt from the

requirements of the Texas Government Code, because the monuments

were not “a project constructed by and for a state institution of higher

education.”   Sec. 2166.003(2).   To the contrary, the monuments in

question were not constructed by the University but were created and

sited pursuant to an agreement with and funded by Maj. Littlefield

and accepted by UT. Upon completion, the monuments were given to

the University for installation as part of its larger project, the entire

South Mall.    The statutory phrase implies a complete intent from

beginning to end of a “project” by a state institution of higher

education. Here, Maj. Littlefield ordered and paid for the monuments,

not the University.    Prepositions have consequences, and in this

instance “by” bears great weight. This exemption does not apply to

the statues removed illegally by Defendant Pres. Fenves.

     Defendant     President   Fenves    and   Vice-President    Vincent

disregarded the statutory requirements for the removal of Texas

monuments to historical figures important to Texans and Texas, as

well as monuments to military heroes.       In so doing, these persons

                           APPELLANTS’ BRIEF
                              Page 53 of 59
acted ultra vires and have caused the University of Texas at Austin

and themselves to be liable for desecrating veterans’ monuments of

inestimable value to Texans.


              IV. DEFENDANT PRESIDENT FENVES
             VIOLATED BOARD OF REGENTS RULES.

     Section IV is not in the trial-court record. Plaintiffs provide this

argument with respect to the requirement under the Abbott Rule for

determination of individual standing. Plaintiffs must show it is likely

that plaintiffs will be redressed by a favorable decision. 464 S.W.3d at

633. In such an instance, the Court “may consider evidence and must

do so when necessary to resolve the jurisdictional issue raised.” Bland

Indep. Sch. Dist., 34 S.W.3d at 555.             Plaintiffs had planned to

introduce evidence at trial that Defendant Pres. Fenves violated the

internal   rules   of   the    University   of    Texas   System   for   the

administration of bequests, as required by the Board of Regents.

Plaintiffs contend that their injury, the removal of the Davis and

Wilson monuments, would likely be redressed by a declaratory

judgment that Defendant Pres. Fenves violated Board of Regents

Rules, by enforcement of University of Texas System Rules, by


                              APPELLANTS’ BRIEF
                                 Page 54 of 59
replacement of the monuments, and by disgorgement of the current

value of the Littlefield Bequest.

     Even if the University were exempted from the Texas

Government Code, Defendant Pres. Fenves, Vice-President Vincent,

and the so-called South Mall Committee, acted ultra vires by ignoring

rules promulgated by the University of Texas Board of Regents for the

administration of gifts and bequests.

     The University of Texas Board of Regents has vested authority

and responsibility for the promulgation of rules regarding the

administration of gifts, including bequests, in the Vice-Chancellor for

External Relations over all campuses of the University of Texas

System. UTS. R. 60101 § 2.

     The Vice-Chancellor for External Relations has designated the

Office of Development and Gift Planning Services (ODGPS) with the

administration of bequests:

     As authorized by the Board of Regents' Rules and
     Regulations, Rule 60101[,] these procedures are designed to
     outline administrative processes associated with the
     acceptance, administration, and investment of gifts
     processed or administered by the Office of Development and
     Gift Planning Services (ODGPS), as the designee of the Vice
     Chancellor for External Relations in a prudent and efficient
     manner, with fundamental fiduciary responsibilities kept

                           APPELLANTS’ BRIEF
                              Page 55 of 59
     firmly in mind. These procedures also cover gifts given for
     current purposes, including gifts of securities, gifts of family
     limited partnerships, bequests, trust distributions, personal
     property, life insurance and retirement plan assets. UTS. R.
     138 § 2.

     Board of Regents’ rules give authority and responsibility for the

administration of bequests to University-of-Texas campuses to the

Vice-Chancellor for External Relations, who in turn has designated the

Office of Development and Gift Planning Services with the crafting and

promulgation of administrative rules in this area.          Neither UT

Defendant Pres. Fenves, nor UT Vice-President Vincent, nor anyone

else sought the advice of the Vice-Chancellor for External Affairs nor

the ODGPS.

     The     University’s   wrongful    and     blatant   disregard     of

administrative safeguards established by the Board of Regents for the

protection of gifts and bequests to University-of-Texas campuses

renders Defendant UT Pres. Fenves’ acts in ordering the removal of the

Davis and Wilson monuments ultra vires and in violation of Texas

statutes and Board of Regents rules.




                            APPELLANTS’ BRIEF
                               Page 56 of 59
                   V. A CASE OF FIRST IMPRESSION
                 AND REQUEST FOR ORAL ARGUMENT.

     This is a case of first impression relative to the facts and law

involved. Moreover, the citizens of Texas, as donee beneficiaries, have

a particular interest in the fair, competent, and prompt resolution of

the questions raised in this appeal. Accordingly, plaintiffs request oral

argument so that these issues of first impression can be better

explained and understood by the Court of Appeals.


                                 PRAYERS

     1.    Plaintiffs request that this Court find that plaintiffs have

           both individual and associational standing;

     2.    Plaintiffs ask the Court to reverse the trial court’s grant of

           the plea to the jurisdiction and to remand the case for

           accelerated trial on the merits;

     3.    Plaintiffs ask the Court to reverse the trial court’s denial of

           the motion to reform judgment;

     4.    Plaintiffs ask the Court to rule that defendant violated the

           terms of the Littlefield Bequest;




                           APPELLANTS’ BRIEF
                              Page 57 of 59
5.   Plaintiffs ask the Court to rule that defendant violated

     Texas Government Code §§ 2166.501 and 2166.5011;

6.   Plaintiffs ask the Court to rule that defendant violated

     University of Texas System Rules 138 § 2 and 60101 § 2;

     and,

7.   Plaintiffs ask that the Court award their costs of court and

     such and further relief to which plaintiffs are justly entitled

     to.

                      RESPECTFULLY SUBMITTED,

                           /s/Kirk David Lyons
                           Texas Bar No. 12743500
                           Southern Legal Resource
                           Center, Inc.
                           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
                           Texas Bar No. 00000034
                           604 Beardsley Lane, Suite 100
                           Austin, TX 78746
                           Tel. (512) 328-9238
                           Fax (512) 857-0606
                           clray4523@hotmail.com

                           ATTORNEYS FOR APPELLANTS


                     APPELLANTS’ BRIEF
                        Page 58 of 59
                      CERTIFICATE OF COMPLIANCE

     I certify that this document was produced on a computer using
Microsoft Word 2011 and contains 9,632 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/KIRK DAVID LYONS
                             ATTORNEY FOR APPELLANTS
                             Dated: November 6, 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, Susan Watson, Office of the Texas Attorney General, P.O. Box
12548, Austin, Texas 78711, by email and the Court’s electronic filing
system on November 6, 2015.

                             /s/KIRK DAVID LYONS
                             ATTORNEY FOR APPELLANTS




                            APPELLANTS’ BRIEF
                               Page 59 of 59
