Nikki Araguz Trans Marriage Update!

Posted by Cristan on Aug 20, 2012 in Civil Rights

Here’s the long-awaited Nikki Araguz case update!

We last left off a year ago with my critique of the small-town
Republican judge’s laughable judgement. What fallows is the brief that
was submitted to the 13th District Court of appeals in Texas. As I
bitched about in my critique
<http://www.cristanwilliams.com/b/2011/05/26/nikki-araguz-justice-fail/>
, the ethically challenged legal team for the ex-wife (who seems to be
behind all of this nonsense) never actually dealt with Nikki’s
arguments/evidence and the judge simply pretended that his court
wasn’t bound by the 14th Amendment to recognize the fact that
California asserts that Nikki was BORN female (she has an ORIGINAL –
NOT an amended – birth certificate which states that she was born
female).

Anyway, reading through this brief is fun. It’s less like a dry legal
brief and more like an epic pwnage of the ex-wife’s case. The 13th
District Court of appeals isn’t controlled by right-wing assholes and
my expectation is that Nikki will win. Arguments will probably begin
sometime in November.

On a side note… this anti-trans marriage nonsense must be stopped! The
arguments used by the ex-wife’s legal team was recently used against a
transman who SPENT THE LAST YEAR IN SOLITARY CONFINEMENT
<http://www.originalplumbing.com/2012/08/20/jailed-for-being-trans-and...>
 for the “felony” of marrying his wife!

_____

NO. 13-11-00490-CV

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

AT CORPUS CHRISTI

In re:

ESTATE OF THOMAS TREVINO ARAGUZ, III,

Deceased.

APPELLANT’S REPLY BRIEF

ARGUMENT IN REPLY

I. The summary judgment evidence refutes the appellees’ insistence
that Nikki was “born a man.”

Both of the appellees base their arguments on the same false
premise—that Nikki was “born a man.”  The appellees repeat this
statement over and over, as though sheer repetition could make it
true:

    • “the evidence establishes that Nikki was born as a male”
(Delgado Br. at 4)
    • “She was born as a male” (Delgado Br. at 5)
    • “Nikki was born as a male”  (Delgado Br. at 6)
    • Nikki was “actually born as a man” (Delgado Br. at 7)
    • Nikki “was born as a man” (Delgado Br. at 16)
    • Nikki is “a person born as a man but living as a woman” (Delgado
Br. at 16.)
    • Nikki is “a person born as a man” (Longoria Br. at viii)
    • “Appellant was born a male” (Longoria Br. at 1)
    • “Nikki Araguz was born a male” (Longoria Br. at 17)
    • “Nikki was undoubtedly biologically male.” (Longoria Br. at 22)
    • “Biologically a post-operative female transsexual is still a
male.” (Longoria Br. at 27)
    • “It is undisputed that Appellant was born a male” (Longoria Br. at 27)
    • “Appellant remains a male” (Longoria Br. at 27)

Contrary to the appellees’ statements, the uncontroverted summary
judgment evidence, including Dr. Collier Cole’s uncontroverted expert
testimony, establishes that Nikki was born with Gender Identity
Disorder, meaning that she was born with male genitalia but a female
brain.  (See Appellant’s Br. at 1-3; 6CR1608-1703; 7CR1852;
Supp.CR1968-2104.)  Just as a fetus’s rudimentary sex organs
differentiate in utero into male or female genitalia, the fetal brain
differentiates to one sex or the other.  (See id.)  Medical studies
“clearly support the paradigm that in transsexuals sexual
differentiation of the brain and genitals may go into opposite
directions and point to a neurobiological basis of gender identity
disorder.”  (See id.)

The appellees did not introduce a shred of summary judgment evidence
to the contrary.  No matter what the appellees say—or how many times
they say it—they cannot change the uncontroverted  medical fact that
Nikki was born a transsexual female, not a male.

II. Nikki does not seek to apply the 2009 statutory amendments retroactively.

Delgado argues that the 2009 amendments to section 2.005 do not apply
retroactively, but that argument is a “straw man.”  Nikki does not
seek to apply the amendments retroactively.

As Nikki explained in her principal brief, the 2009 amendments are
relevant in two ways.  First, the 2009 amendments erase any doubt
about the meaning of section 2.005 as it existed before 2009,
including Texas’s pre-2009 recognition of transsexualism.  Nikki made
this clear in her principal brief:

When Thomas and Nikki married in 2008, section 2.005 provided in
general terms that an applicant could prove his or her identity to
obtain a marriage license by presenting any “certificate, license, or
document” providing that proof.  When the legislature amended the
statute in 2009, it made it plain that those broad categories have
always included the 19 specified documents, including proof of a “sex
change.”  Thus, the amendment confirmed that Thomas and Nikki were
entitled to marry at the time of their wedding ceremony in 2008.

(Appellant’s Br. at 19 (citations omitted).)  Delgado agrees, noting
in her brief that the 2009 amendments, rather than fundamentally
changing section 2.005, merely “added specificity, listing nineteen
different documents which applicants could use.”  (Delgado Br. at 11.)
 The specific 2009 amendments thus confirmed the meaning of the more
general pre-2009 version of section 2.005, which governs the validity
of Nikki’s 2008 ceremonial marriage to Thomas.

The 2009 amendments are relevant for another reason, as well.  If the
2008 ceremonial marriage was invalid for any reason, the 2009
amendments created a valid informal marriage that began on the date
the amendments became effective.  (See Appellant’s Br. at 15.)

For both of these reasons—neither of which involves applying the 2009
amendments retroactively—the marriage between Thomas and Nikki was
valid.

III. Section 2.005 comports with the ban on same-sex marriages by
clarifying that Nikki, a transsexual female, can marry a man—not
another woman.

Rather than focusing on the language of the 2009 amendments, Delgado
protests that the Texas Legislature, having declared same-sex
marriages void in 2003, could not possibly have intended to “legalize
transgender marriages” or “validate transgender marriages” in 2009.
(Delgado Br. at 18, 21.)  But nothing in amended section 2.005
suggests that the Legislature is validating or legalizing marriage
between anyone other than a man and a woman.  Section 2.005 simply
confirms that a transgendered individual has the right to marry a
person of the opposite sex, just as we all do.  See Cleveland Bd. of
Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (recognizing “freedom of
personal choice in matters of marriage and family life is one of the
liberties protected by the Due Process Clause of the Fourteenth
Amendment”).

Had the Legislature declared that there is no such thing as a “sex
change,” it would have violated its ban on same-sex marriage by
leaving transsexual females free to marry other women, but not men.
But in 2009, when it decreed that Texans may obtain marriage licenses
by presenting “a court order relating to the applicant’s name change
or sex change,” the Legislature made the opposite choice, opting to
recognize the well-established concept of a “sex change” and thus
confirming that a woman like Nikki, a transsexual female, can marry a
man, not a woman.  Tex. Fam. Code § 2.005.

When the Legislature made that choice, it did not “completely redefine
marriage,” “substantially redefine the marriage relationship in
Texas,” “set aside Texas’s crystal clear legal definition of
marriage,” “change the marriage definition,” or perform any other
radical act.  (Delgado Br. at 15, 17, 19, 20.)  Rather than
undermining the ban against same-sex marriage, the Legislature
clarified how that ban applies to marriages involving transsexual
Texans.  And the Legislature did so in a logical way, as illustrated
by a recent matter from El Paso County.

In 2010, Sabrina Hill, a transsexual female, applied to the El Paso
County Clerk for a license to marry Therese Bur, who had been female
all her life. (6CR1591-98.)  Sabrina presented her birth certificate
and documents that identified her as a transsexual female who had
undergone a “sex change.” (6CR1591-98.)  The County Clerk, unsure of
the eligibility of the two to marry, referred the matter to the County
Attorney, who concluded under section 2.005 that Sabrina “is a female
and is not eligible to obtain a marriage license in Texas to marry
another female, see Tex. Const. art. I, § 32, Tex. Fam. Code Ann §
6.204(b).”  (6CR1596.)

Surely this is the result the Legislature intended when it amended
section 2.005.  Sabrina had identified as a female since birth, had
lived for many years as a female, and had the anatomy of a female.  It
is hardly surprising that the Legislature would take the view that a
transsexual female’s marriage to another female would be a same-sex
marriage.  Accordingly, the Legislature implemented the prohibition
against same-sex marriages by amending section 2.005 to clarify that a
transsexual female may marry a male, not another female.  Section
2.005 is consistent with the Texas ban on same-sex marriage, and this
Court should apply it as written.[1]

IV. Nikki’s California judgment and birth certificate are entitled to
full faith and credit.

Delgado acknowledges that Nikki met all requirements under California
law to obtain judicial recognition of her female status and,
accordingly, was awarded a judgment by a California court declaring
that she is female and ordering that her birth certificate reflect
that status.  However, Delgado incorrectly argues that the full faith
and credit clause does not compel Texas courts to recognize and give
effect to the California judgment.  In fact, that is precisely what
the clause compels Texas courts to do.

A. The California judgment and birth certificate are binding on third parties.

Citing Baker v. General Motors, 522 U.S. 222, 235 (1998), Delgado
argues that “the Delgado children . . . are not bound by res judicata
or the Full Faith and Credit Clause to the California judgment”
because they were not parties to the proceeding in which the
California court determined Nikki’s sex.  (Delgado Br. at 3-4.)  But
Baker is distinguishable, because that case did not involve a “status
determination.”

Unlike most judgments, which are binding only against participants in
the proceeding, determinations of a person’s legal status typically
are binding on third parties as well.  See Restatement (First) of
Conflict of Laws § 119 cmt. d.  The law prohibits third parties from
disturbing a person’s legal status because the “legal establishment of
status is a socially important element of the legal order.”  Id. § 119
cmt. c.  Indeed, third parties generally lack standing to challenge a
legal change in a person’s status.  See Julie A. Greenberg & Marybeth
Herald, You Can’t Take It With You: Constitutional Consequences of
Interstate Gender Identity Rulings, 80 Wash. L. Rev. 819, 849 (2005).
Status determinations “are intensely personal to the individual to
whom they pertain, and therefore, the ability of others to obtain
standing to contest the effectiveness of otherwise legitimate records
should be limited.”  Shawn Gebhardt, Comment, Full Faith and Credit
for Status Records: A Reconsideration of Gardiner, 97 Cal. L. Rev.
1419, 1420 (2009).  The Delgado children had no standing to contest
whether Nikki was entitled to an amended birth certificate under
California law.  Nor would they have had any grounds for doing so—even
now, they do not dispute that Nikki was born in California and
presented the California court with the required evidence documenting
her sex-reassignment surgery, in compliance with California law.

Delgado acknowledges that a determination of gender is a status
determination.  (Delgado Br. At 25 n.34.)  She further concedes that
the Restatement (Second) of Judgments “suggests that a status
determination should bind all persons, regardless of their connection
to the underlying litigation.”  (Delgado Br. at 25.)  Nevertheless,
she argues that the Restatement (Second) of Judgments “suggests . . .
that the preclusive force given to status determinations wanes when
‘another state has correlative authority to adjudicate the status or
its incidents.’”  (Delgado Br. at 25.)  But Texas does not have any
“correlative authority to adjudicate” Nikki’s sex, because Nikki was
born in California.  As one commentator has explained, when addressing
the effect of an amended Wisconsin birth certificate in Kansas:

[I]t is largely undisputed that Kansas has an interest in regulating
marriages that take place within the state.  And in some cases,
disputes that implicate the status of a Kansas marriage are properly
before Kansas courts, which may properly apply Kansas law.  But a
dispute that, at bottom, is a dispute over the sex of one of the
partners, when that question has been decided in a sister forum, is
not one that is local—or even partly local—to Kansas.  It is wholly
local to Wisconsin, the state in which the legislature passed statutes
detailing the amendment procedures governing Wisconsin-issued birth
certificates, in which a judge issued an order to change a record in
accord with those statutes, and in which an amended certificate was
issued and a legal status was changed.  Thus, this is an area in which
a sister state is competent to legislate but the forum state is not.
A Wisconsin birth certificate will forever be a Wisconsin birth
certificate.  It will never be a Kansas birth certificate, and
therefore Kansas has no interest in either the regulation of Wisconsin
birth certificates or the status that arises from such regulation.

Gebhardt, supra, at 1443-44.  The same is true here.  Texas has no
interest in the regulation of California birth certificates or the
status that arises from that regulation.

Delgado cites one Texas case in support of her argument that third
parties may relitigate status determinations.  See Attorney Gen. of
Tex. v. Lavan, 833 S.W.2d 952 (Tex. 1992).  In that case, the Texas
Supreme Court merely applied a statute authorizing the State of Texas
to bring a suit involving the parent-child relationship.  See id. at
955 (applying Tex. Fam. Code § 11.03(a)(5)).  Because it is a function
of the government to establish status determinations, it is hardly
surprising that a statute would permit the government to litigate
those determinations.  In contrast, there is no statute that
authorizes private litigants to do the same, and nothing in Lavan
suggests that they have such authority.  Nikki has been judicially
determined to be female, and third parties may not relitigate that
determination.

B. The full faith and credit clause requires Texas to recognize that
Nikki is a woman, even as it applies its own law regarding whom a
woman may marry.

Delgado cites Adar v. Smith for the proposition that the full faith
and credit clause “simply provide(s) nationwide res judicata to the
issues and claims fully and finally adjudicated between the parties to
a judgment—‘no more, no less.’”  (Delgado Br. at 21-22 (citing Adar v.
Smith, 639 F.3d 146, 151-52 (5th Cir. 2011) (en banc), cert denied,
132 S. Ct. 400 (2011)).  Quoted correctly, however, what Adar actually
says is this: “Simply put, the clause and its enabling statute created
a rule of decision to govern the preclusive effect of final, binding
adjudications from one state court or tribunal when litigation is
pursued in another state or federal court.  No more, no less.  Because
the clause guides rulings in courts, the ‘right’ it confers on a
litigant is to have a sister state judgment recognized in courts of
the subsequent forum state.”  Id. (emphasis added).  The fundamental,
constitutionally protected right described in Adar—Nikki’s right to
have the California judgment and birth certificate recognized in
Texas—is at the heart of this case.

In the Adar case, Adar and Smith jointly adopted a child in New York
and obtained a New York adoption decree.  639 F.3d at 149.  They then
sought to amend the child’s birth certificate in Louisiana.  Id.  The
Louisiana Registrar “concede[d] that it is bound by the New York
adoption decree, such that the parental relationship of Adar and Smith
with [the child] cannot be relitigated in Louisiana.”  Id. at 152.  At
the same time, the Registrar applied Louisiana law and declined to
issue an amended birth certificate to parents who were not married.
Id. at 150-51.  The Fifth Circuit held that this was proper,
explaining that the full faith and credit clause required the
Registrar to recognize the parental relationship established in New
York, while permitting the Registrar to determine the consequences of
that relationship under Louisiana law.  Id. at 159-60.

The Adar court cited Estin v. Estin, 334 U.S. 541 (1935), which
illustrates the same principle.  There, a husband obtained a Nevada
divorce decree that was silent about whether he would be required to
pay alimony.  Id. at 542.  The wife then obtained a New York order
that recognized the Nevada divorce and, applying New York law,
required the husband to pay alimony.  Id. at 543.  The Supreme Court
held that the full faith and credit clause required New York to
recognize the Nevada divorce, while permitting New York to determine
whether the husband would be required to pay alimony under New York
law.  Id. at 543-49.

Applying those principles here, Nikki obtained a judgment and amended
birth certificate in California adjudicating that her legal sex, as of
the date of her birth, is female.  The full faith and credit clause,
as applied in Adar and Estin, requires Texas to recognize that Nikki’s
sex has been adjudicated in California and may not be relitigated in
Texas.  Adar and Estin also teach that Texas, having recognized that
Nikki is a woman, may then apply its own law that addresses whom a
woman may marry.  Thus, even if California began allowing women to
marry other women, Texas could continue to enforce its own law
providing that women may marry only men, and that law would apply to
Nikki just as it would apply to every other female Texan.  Delgado is
therefore wrong to argue that giving full faith and credit to Nikki’s
California judgment and birth certificate “prevents Texas’s courts
from enforcing the Texas definition of marriage.”  (Delgado Br. at
26.)  The full faith and credit clause does not require Texas to
change its marriage laws, but it does require Texas to recognize that
Nikki is a woman.

V. Littleton was decided incorrectly.

This Court need not determine whether Littleton was decided
incorrectly, because that decision has been legislatively superseded
and is distinguishable in any event.  (Appellant’s Br. at 36-37,
42-43.)  Delgado nevertheless attempts to defend the reasoning of
Littleton, but her defense of that decision is incomplete at best.

Delgado addresses one of the flaws in Littleton, arguing that the
Littleton court “properly construed § 191.028 as to allow a birth
certificate amendment to occur only when the certificate did not
accurately reflect the events at birth and as not allowing an
amendment based on subsequent events.”  (Delgado Br. at 9.)  Delgado
reads far too much into section 191.028, which does not contain any
hint that the Legislature meant to distinguish between events
occurring at birth and subsequent events.  (See Appellant’s Br. at
38-40.)  But even if section 191.028 had contained such a distinction,
the Littleton court still would have been wrong to conclude that
Christie Lee Littleton was not entitled to a marriage license.  In
1999, Family Code section 2.005 authorized county clerks issuing
marriage licenses to accept as proof of identity and age “a certified
copy of the applicant’s birth certificate or . . . some certificate,
license, or document issued by this state or another state, the United
States, or a foreign government.”[2]  Thus, even if Christie had never
applied for an amended birth certificate, she still could have
obtained a marriage license by showing her driver’s license or any
other document identifying her as female.  (See Appellant’s Br. at
40-41.)  Although Nikki explained in her brief that Littleton was
flawed for this reason, Delgado has no response.  Littleton was
decided incorrectly.

VI. The judgment cannot be affirmed on the basis of judicial estoppel.

Unlike Delgado, Longoria argues that the judgment can be affirmed on
the basis of judicial estoppel.  According to Longoria, Nikki stated
she was male when seeking a name change in 1996 and cannot now claim
otherwise.  But Longoria fails to mention that when Nikki sought the
name change, she correctly informed the court that “I am a woman with
male anatomy, working toward a sex change.”  (1CR21-22 (emphasis
added).)  Nikki later explained that she had been advised to complete
legal documents in a manner consistent with her original birth
certificate until the birth certificate had been corrected.  (1CR278.)

In light of Nikki’s clear and candid statement to the court and her
deposition testimony, it is clear that she placed the letter “M” on
official forms to avoid a conflict with other official documents while
also disclosing her status as a transgender female whenever the
opportunity arose.  Even if there were some inconsistency between
Nikki’s statement to the court and her use of the letter “M” on the
written form, inconsistent statements are not “deliberate, clear, and
unequivocal” and cannot form the basis of judicial estoppel.  See Am.
Savs. & Loan Ass’n v. Musick, 531 S.W.2d 581, 589 (Tex. 1976).  For
this reason, in addition to the other reasons set forth in Nikki’s
principal brief, the doctrine of judicial estoppel does not apply.
(See Appellant’s Br. at 43-44.)

VII. Longoria’s arguments about Dr. Cole’s affidavit are off base.

Longoria argues that Dr. Cole’s affidavit should be disregarded on
procedural grounds.  Her arguments are misleading and contrary to
Texas law, as shown by an examination of the versions of the affidavit
that appear in the record.

    • The first version of the affidavit was filed on May 16, 2011.
(6CR1608-1703.)
    • In response to Longoria’s objection that the affidavit referred
to medical records that were not attached, Nikki filed a second
version on May 20, 2011 with the medical records attached.
(Supp.CR1968-2104.)
    • In response to Longoria’s objection that the affidavit did not
specifically recite that the facts set forth in the affidavit were
“true,” Nikki obtained an order on May 24, 2011 stating that “[Nikki],
out of an abundance of caution, has revised the timely filed affidavit
of Collier Cole, Ph.D. to state that ‘the facts and opinions stated in
this affidavit are within my personal knowledge, are true and correct,
. . .’ at the onset of his affidavit.”  (7CR1852-58.)  Attached to the
order is an affidavit in which Dr. Cole recites that the facts “are
true and correct.”  (7CR1852-58.)

On appeal, Longoria makes two incorrect arguments about the
affidavits.  Longoria argues that the affidavit filed on May 20, 2011
is insufficient because it does not specifically recite that the facts
set forth in the affidavit are “true.”  (Longoria Br. at 36-38.)  That
argument is directly contrary to authority from this Court, which has
held that “where the affidavit does not specifically recite that the
facts set forth there are true, but does set out that it is based on
personal knowledge and is subscribed to and sworn before a notary
public, it is not defective if, when considered in its entirety, its
obvious effect is that the affiant is representing that the facts
stated therein are true and correct.”  Fed’l Fin. Co. v. Delgado, 1
S.W.3d 181, 184 (Tex. App.—Corpus Christi 1999, no pet.).  Dr. Cole’s
affidavit recites that “facts and opinions stated in this affidavit
are within my personal knowledge,” and it is subscribed to and sworn
before a notary public.  (6CR1608-1703.)  It is obvious that Dr. Cole
was representing that the facts were true.  The affidavit was not
defective.

Longoria also argues that the version of the affidavit attached to the
trial court’s May 24, 2011 order is insufficient because the medical
records are not attached.  But in making that argument, Longoria
ignores the terms of the trial court’s order, which explains that
Nikki “revised the [May 20, 2011] timely filed affidavit of Collier
Cole, Ph.D. to state that ‘the facts and opinions stated in this
affidavit are within my personal knowledge, are true and correct, . .
.’ at the onset of his affidavit.”  (7CR1852 (emphasis added).)  The
affidavit filed on May 20, 2011 attaches the medical records, and when
read as “revised” in light of the trial court’s order, it also recites
that the facts are “true and correct.”  (7CR1852;
Supp.CR1968-2104.)[3]  The affidavit is sufficient.

VIII. Nikki filed a traditional motion for summary judgment, not a
no-evidence motion.

Longoria persists in treating Nikki’s summary judgment motion as a
no-evidence motion, even though in substance it was unmistakably a
traditional motion, as Nikki noted in her brief.  (See Appellant’s Br.
at 10 n.11.)  Longoria’s stubborn insistence on this point is contrary
to this Court’s recent decision in which it held: “In determining
whether a motion for summary judgment is brought on traditional
grounds or no-evidence grounds, we consider the substance of the
motion rather than categorizing the motion strictly by its form or
title.”  Garcia v. City of Elsa, No. 13-10-00440-CV, 2012 WL 1484105,
at *4 (Tex. App.—Corpus Christi Apr. 26, 2012, no pet.) (citing Texas
Integrated Conveyor Sys. v. Innovative Conveyor Concepts, 300 S.W.3d
348, 375 (Tex. App.—Dallas 2009, pet. denied) and Rodgers v.
Weatherspoon, 141 S.W.3d 342, 344 (Tex. App.—Dallas 2004, no pet.)).
Under these authorities, Nikki’s summary judgment motion is a
traditional motion, not a no-evidence motion.

CONCLUSION AND PRAYER

The marriage of Thomas and Nikki was a valid, opposite-sex marriage
because (1) the uncontroverted summary judgment evidence established
that Nikki was female before and during her marriage to Thomas; (2)
the Texas Family Code recognizes that an individual who has undergone
a “sex change” is eligible to marry a person of the opposite sex; (3)
the California judgment and birth certificate establish that Nikki is
female and are entitled to full faith and credit in Texas; and (4) the
United States and Texas Constitutions require that the marriage be
recognized as valid.  Accordingly, Nikki respectfully requests that
the Court reverse the summary judgment and render judgment recognizing
her marriage as valid or remand for further proceedings.  Finally,
Nikki requests all further relief to which she is entitled.

Respectfully submitted,

HAYNES AND BOONE, LLP

Kent Rutter

State Bar No. 00797364

Kenneth E. Broughton

State Bar No. 03087250

1221 McKinney Street, Suite 2100

Houston, Texas  77010-2007

Telephone: (713) 547-2000

Facsimile: (713) 547-2600

Alene Ross Levy
State Bar No. 12260550
Alene Levy Law Firm, P.L.L.C.
1005 Heights Blvd.
Houston, Texas  77008
Telephone: (713) 529-0048
Facsimile: (713) 529-2498

Phyllis Randolph Frye
State Bar No. 07496600
Darrell Steidley
State Bar No. 24013559
Frye & Associates, PLLC
2990 Richmond Avenue, Suite 400
Houston, Texas  77098
Telephone: (713) 227-1717
Facsimile: (713) 522-2610

- and -

Mitchell Katine
State Bar No. 11106600
John Nechman
State Bar No. 24010261
Katine & Nechman L.L.P.
1111 North Loop West, Suite 180
Houston, Texas  77008-1700
Telephone: (713) 808-1000
Facsimile: (713) 808-1107

Attorneys for Appellant,
Nikki Araguz

CERTIFICATE OF SERVICE

In accordance with the Texas Rules of Appellate Procedure, I hereby
certify that a true and correct copy of this reply brief was served on
the following counsel of record on August 20, 2012:

Counsel for Appellee Simona Longoria:

Via CMRRR

ChadEllis

Ellis & Irwin, L.L.P.

302 Jackson Street

Richmond, Texas  77469

Counsel for Appellee Heather Delgado:

Via CMRRR

W. Mark Lanier

Kevin P. Parker

The Lanier Law Firm

6810 FM 1960 West

Houston, Texas  77069

Via CMRRR

Frank E. Mann

Law Offices of Frank E. Mann

6750 West Loop South, Suite 120

Bellaire, Texas  77401

Via CMRRR

Edward C. Burwell

Law Offices of Edward C. Burwell

6750 West Loop South, Suite 120

Bellaire, Texas  77401

Counsel for Appellee National Union Fire Insurance Company:

Via CMRRR

Kay J. Hazelwood

Schwartz, Junell,

Greenberg & Oathout, L.L.P.

909 Fannin, Suite 2700

Houston, Texas  77010

_____

Kent Rutter

_____

[1]       Delgado argues, without authority, that “the clerk under the
statute [can] refuse a license to a couple consisting of a man and a
person bearing a judicial order reflecting a gender change from man to
woman.”  (Delgado Br. at 19.)  But Delgado cannot explain how, once a
person has been judicially determined to be a woman, a county clerk
could deny her the right to marry a man.  Delgado’s twisted
interpretation of section 2.005 would not effectuate the ban on
same-sex marriages—instead, it would allow county clerks to prohibit
opposite-sex marriages.

[2]       Act of April 4, 1997, 75th Leg., R.S., ch. 7, § 1, 1997 Tex.
Gen. Laws 7 (emphasis added) (Appendix C to Appellant’s Br.) (current
version at Tex. Fam. Code § 2.005).

[3]       Even if the records had never been attached to any
affidavit, the failure to attach medical records would have been a
mere defect in form, meaning that only the portions of the affidavit
summarizing the medical records would have been excluded.  See Noriega
v. Mireles, 925 S.W.2d 261 (Tex. App.—Corpus Christi 1996, writ
denied).  Under the circumstances of this case, excluding Dr. Cole’s
summary of Nikki’s medical records would not affect the outcome of the
case, because the relevant facts from Nikki’s medical history are
undisputed.

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