APPELLANTS’ BRIEF

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No. 06-15-00075-CV

 

IN THE COURT OF APPEALS 

FOR THE SIXTH DISTRICT OF TEXAS 

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 

ACCEPTED

06-15-00075-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

11/6/2015 11:42:23 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 11/9/2015 9:11:00 AM DEBBIE AUTREY Clerk
APPELLANTS’ BRIEF

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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

 
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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
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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
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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

 

 
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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
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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
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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
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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
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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 
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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 posthearing 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.
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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 
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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.

 
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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 
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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.

 
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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 
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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 trialcourt 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 
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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.
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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). 
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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. 
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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 “wellestablished common law causes of action.” Id.; Sax v. Votteler, 648 
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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 
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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.
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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.
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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.
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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. 
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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 
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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.
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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 
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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 
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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 
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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).
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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 
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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
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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.
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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).
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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 
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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 
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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 
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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 
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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 
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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, 
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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 
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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 eightytwo 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.
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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.). “Quasiestoppel 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 
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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 
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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, 
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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 
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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).
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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 stateowned 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 
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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 
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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.
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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 
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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 
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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 
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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.
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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;
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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

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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