APPELLANTS ’ BRIEF Page 1 of 59 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

CLERKAPPELLANTS ’ BRIEF Page 2 of 59 IDENTITY OF PARTIES AND COUNSEL Plaintiffs Below/Appellants : Gary David Bray Texas Division, Sons of Confeder ate 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. Fenv es, University of Texas at Austin Represented by : Mariel Puryear , Attorney in Charge Texas Bar N o. 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. govAPPELLANTS ’ BRIEF Page 3 of 59 TABLE OF CONTENTS IDENTITY OF P ARTIES

................................ ................................ 2 INDE X OF AUTHORITIES

................................ ............................ 6 STATEME NT OF THE CASE

................................ ...................... 1 0 ISSUE S PRESENTED FOR REVIEW

................................ ......... 1 2 STATEM ENT OF FACTS

................................ ............................. 1 2 SUMMARY OF THE ARGUMENT

................................ .............. 1 4 A RG UMENT

................................ ................................ ................. 1 6 I. Plaintiffs Have Standing

................................ .......................... 1 6 A. Standard of Review

................................ ..................... 1 6 B. Plaintiffs Have Individual Standing Under the Abbot Rule

................................ ................................ .. 2 2 C. Plaintiffs Are Excepted to the Requirement for Particularized Injury, Because Individual Plainti ffs Are Taxpayers

................................ ............. 2 6 D. The Sons of Confederate Veterans, Inc., Has Associational Standing Under Texas Association of Business

................................ ............... 2 7 E. Plaintiffs Have Standing, Because the Texas Constitution G uarantees Open Acces s to Courts

................................ ................................ ...... 2 9 F. Conclusion on Standing

................................ .............. 3 1APPELLANTS ’ BRIEF Page 4 of 59 II. Defendant President Fenves Violated the Terms of the Littlefield Bequest

................................ ................................ 3 1 A. The Littlefield Conveyance Is a Bequest as Understood in the Law as It Existed at the Time of the Conveyance

................................ ....................... 3 2 B. Defendant President Fenves Brea ched the Terms of the Littlefield Bequest

................................ ............ 3 8 C

. The University Is Barred from Moving the Monuments under the Doctrine of Quasi

- Estoppel

.... 4 5 D

. Th e Proper Remedy for Breach of the Bequest

......... 4 7 E

. Conclusion on Breach of the Bequest

......................... 4 7 III. Defendant Pres ident Fenves Violated the Texas Government Code

................................ ................................ . 4 8 A. The Littlefield Monuments A re Protected by the Monument Protection Act

................................ 4 8 B. The University of Texas Is Not Exempt from the Requirements of the Monument Protection Act

......... 5 3 IV. Defendant President Fenves Violated Board of Regents Rules

................................ .............................. 5 4 V. A Case of First Impression and Request for Oral Argument

................................ ................................ ...... 5 7 P R AYERS

................................ ................................ ...................... 5 7 CERTIF ICATES

................................ ................................ ............ 5 9APPELLANTS ’ BRIEF Page 5 of 59 APPENDI X Order Denying Plain tiff’s Application for Temporary Injunction

................................ .................. TAB A Order Granting Plea to Jurisdiction

............................ TAB B Littlefield Will

................................ .............................. TAB C Monument Protection Act, Tex as Gov ernment Code Sections 2166.501 and 2166.5011

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

................................ ................... TAB EAPPELLANTS ’ BRIEF Page 6 of 59 INDEX OF AUTHORITIES

CASES Abbott v. G.G.E., et al ., 463 S.W.3d 633 (Tex. App.

— Austin Apr. 30, 2015) 16, 19, 2 2 , 24, 3 1 , 5 4 Angell v. Bailey

, 225 S.W.3d 834 (Te x. A pp.
— El Paso 2007, no pet.)

.................... 4 5 Baylor Health Care System v. Employers Rei nsurance Corp., 492 F.3d 318 (5th Cir. 2007)

................................ ........................ 4 6 Bell v. State Dep't of Highways & Pub. Transp., 945 S.W.2d 292 (Tex. App.

— Houston [1 st Dist.] 1997, writ denied)

................................ ................................ .................. 1 8 Biko v. Siemens Corp., 246 S.W.3d 148 (Tex. A pp.
— Dallas 2007, no pet.)

...................... 4 6 Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547 (Tex. 2000)

.......... 21, 5 4 Board of Water Engineers v. City of San Antonio , 283 S.W.2d 722 (Tex. 1955)

................................ .......................... 2 0 Continental Cas. Ins. Co. v. Functional Restoration Associ ates , 19 S.W.3d 393 (Tex. 2000)

................................ ............................ 1 7 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)

................................ . 3 8, 4 0 Daniel v. Goesl

, 341 S.W. 2d 892 (Tex. 1960)

................................ ........ 4 6 Dubai Petroleum Co. v. Kazi , 12 S.W.3d 71 (Tex. 2000)

.......... 17, 22, 2 9APPELLANTS ’ BRIEF Page 7 of 59 Dulin v. Moore, 70 S.W. 742 (Tex. 1902 )

............................ 3 3 , 3 4 , 3 5 , 36 Edsall v. Hutchings

, 143 S.W.2d 700 (Tex. Civ. App.

— Eastland 1940, no writ)

................................ ................................ ................... 3 8 , 4 0 Gillman v. Gillman

, 313 S.W.2d 931 (Tex. Civ. App.

— Amarillo 1958, writ refused n.r.e.)

................................ ................................ .. 4 0 , 4 1 Haupt v. Michealis

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

................................ 3 2 , 3 7 Hodge v. Ellis

, 277 S.W.2d 900 (Tex. 1955)

................................ .......... 3 8 Hoff mann v. Davis

, 100 S.W.2d 94, 95 (Tex. 1937)

.............................. 2 1 Huston v. Federal Deposit Insurance Corp. , 663 S.W.2d 126 (Tex. App.

— Eastland 1983, writ ref’d n.r.e.)

................................ ................................ ............. 1 7 In re Walker Estate

, No. 13
- 11
- 00438 CV (Tex. App.

— Corpus Christi

- Ed inburg August 23, 2012, no pet.) (mem.op.)

................................ ............ 3 3 Lane v. Sherrill

, 614 S.W.2d 623 ( Tex. App.

— Austin 1981, no pet.)

..................... 3 3 Lindsey v. Rose

, 1 75 S.W. 829 (Tex. 1915)

................................ ........... 3 3 Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857 (Tex. 200 0)

................................ ............................ 4 5 Lujan v. Defenders of Wildlife , 504 U.S. 555 (1992)

............................ 19 McMurray v. Stanley

, 6 S.W. 412 (Tex. 1887 )

.......................... 3 3 , 3 4 , 3 6APPELLANTS ’ BRIEF Page 8 of 59 National Educators Life Ins. Co. v. Master Video Systems, Inc. , 398 S.W.2d 358 (Tex. Civ. App.

— Corpus Chri sti 1965, writ ref’d n.r.e.)

................................ ................................ ............. 4 5 Perfect Union Lodge v. Interfirst Bank of San Antonio , 748 S.W.2d 218 (Tex. 1988)

................................ .......................... 3 3 S ax v. Votteler

, 648 S.W.2d 661 (Tex. 1983

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

................................ .......... 1 6 Smith v. Butler

, 19 S.W. 1083 (Tex. 1892)

................................ ........... 3 9 Stephanou v. Texas Medical Liability Ins. Underwriting Assoc. , 792 S.W.2d 498 (Tex. App.

— Houston [1 st Dist.] 1997, writ denied )

................................ ................................ .................. 18 Terrazas v. Carrol

l , 277 S.W.2d 274 (Tex. Civ. App.

— Eastland 1955, no writ)

................................ ................................ ......................... 4 6 Texans United for Reform & Freedom v. Saenz , 319 S.W.3d 914 (Tex. App.

— Austin 2000, no pet.)

................................ ................................ ........ 16, 21, 2 6 , 31 Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S. W.2d 440 (Tex. 1993)

................ 16, 17, 18 , 1 9, 20, 21, 2 7 , 3 1 Texas Dep’t of Parks and Wildlife v. Miranda

.......................... 2 8, 29, 51 Theriot v. Smith

, 263 S.W.2d 181 (Tex. Ci v. App.

— W aco 1953, writ dism’d)

......... 4 6 Wrig ht v. Wright, 154 Tex. 138, 274 S.W.2d 670. (Tex. 1955)

............ 4 0APPELLANTS ’ BRIEF Page 9 of 59 RULES Texas R ule of Civ il Procedure 80

................................ .......................... 18 University of Texas System Rule 138 § 2

................................ . 12, 5 6 , 58 University of Texas System Rule 60101 § 2

............................. 12, 5 5 , 58 CONSTITUTION TEX. CONST., art. 1, § 13

................................ ..................... 17, 2 1 , 2 9, 31 STATUTES Texas Governmen t Code § 2166.003

................................ ..................... 5 3 Texas Governmen t Code § 2166.501

....................... 12, 14, 4 8, 49, 50, 58 Texas Governmen t Code § 2166.5011

............... 12, 14, 4 8, 49, 50, 52, 58 Texas Prop erty Code Annotated Preface

................................ .............. 3 6 Tex as Pr operty Code § 123.001

................................ ............................. 3 6 OTHER AUTHORITIES Black’s Law Dictionary (2d ed. 1910)

................................ ............. 3 4 , 37 Black’s Law Dictionary (9th ed. 2009)

................................ ...... 4 2, 47, 48 21 Corpus Juris Secundum Courts § 16

................................ ............... 17
34 Texas Jurisprudence 3d Estoppel § 2

................................ .............. 4 5 74 Texas Jurisprudence 3d Wills § 279

................................ ................ 34 97 Corpus Juris Secundum Wills § 1237

................................ ........ 32, 4 0APPELLANTS ’ BRIEF Page 10 of 59 STATEMENT OF THE CASE For ease of identification, Appellants Gary David Bray, the Texas Division, Sons of Confederate Veterans, Inc., and Steven David Littlefield ar e referred to as “ p laintiffs ” in Appellants’ Brief, and Appellee, President Gregory L. Fenves of the University of Texas at Austin, is referred to as “ d efendant. ” Nature of the Case. Gary David Bray, the Texas Division, Sons of Confederate Veterans, Inc., an d 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 o f 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 inju nction and granted defendant’s plea to the jurisdiction with prejudice. (CR 265, 280). Plaintiffs filed a mot ion to vacate the order denying the temporary injunction as being void , because the trial court grantedAPPELLANTS ’ BRIEF Page 11 of 59 defendant’s plea to the jurisdiction with prejudice. Plaintiff s ’ 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
- 7 9). Trial Court Disposition. The trial court granted defendant’s plea to the jurisdiction and denied plaintiffs’ motion for temporary injunction . (CR 265, 280). The trial court did not rule on the post

hearing motions to reform judgment and to vacate th e judgment, and those two motions were denied by operation of law. The petition for declaratory judgment was rendered moot by the grant of the plea to the jurisdiction.APPELLANTS ’ BRIEF Page 12 of 59 ISSUES PRESENTED FOR REVIEW Issue 1: Whether plaintiffs have standing

. Is sue 2 : Whether Defendant Pres. Gregory Fenves violate d the terms

of the Littlefield Bequest to the University of Texas. Issue 3 : Whether Defendant Pres. Gregory Fenves violate d Tex as

Gov ernmen t 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 B equest 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

acce pted the B equest. (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 WoodrowAPPELLANTS ’ BRIEF Page 13 of 59 Wilson

. Maj. Littlefield directed their placement on the S outh 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, o n August 13 , 2015, President Gregory L. Fenves ordered that the Jefferson Davis and Wo odrow 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 location s 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 plaintiff s ’ application for a temporary injunction. (CR 265, 280). The deni al of the temporary restraining order was thereby rendered void

. Id. On Su nday, August 30, 2015, the University remo ved the Davis and Wilson monuments and is storing them at a location undisclosed to plaintiffs

.APPELLANTS ’ BRIEF Page 14 of 59 SUMMARY OF THE ARGUMENT The trial c ourt 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 Tex as monument s 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 t he 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 benefit s by accept ing 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 fulfilledAPPELLANTS ’ BRIEF Page 15 of 59 all the original terms of the Littlefield Bequest . Plaintiffs contend that other terms of the Littlefield Bequest have been w asted 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 L ittlefield 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 c ontemporary dollars and placed in a trust used to administer the funds in accord with Maj. Litt lefield’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 ad dition, p laintiffs seek the return of the Davis and Wilson monuments to their ancient and original locations on the University’s South Mall.APPELLANTS ’ BRIEF Page 16 of 59 ARGUMENT I. PLAINTIFFS HAVE STANDING. A. Standard of Review As set out in more detail below, i ndividual plaintiff s Mr. Gary Bray and Mr. David Littlefield have standing as individual plain tiffs 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. P laintiffs have a constitutional right to a remedy at law for their common

- law injury, which confers standing under the Texas Constitution. For these reasons, t he 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 r equires 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 isAPPELLANTS ’ BRIEF Page 17 of 59 conferred by the Texa s open - courts provision of the Texas C onstitution 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 conferr ing 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 be en 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 compone nt 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 44 6 . In reviewing trial

court orders that dismiss a cause for lack of subject

- matter jurisdiction,

a ppellate 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 (ci ting Huston v. FederalAPPELLANTS ’ BRIEF Page 18 of 59 Deposit Insurance Corp. , 663 S.W.2d 126, 129 (Tex. App.

— East l and 1983, writ ref’d n.r.e.)). T hus, a trial court must accept the plaintiff’s allegations in the petition as true , unless the defendant proves plaintiff made fraudulent a llegations 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 c ontinuance of the cause is favored , so that

w hen a trial court grants a ple a 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 [1 st Dist.] 1997, writ denied ) ; Bell v. State Dep't of Highways & Pub. Transp., 945 S.W.2d 292, 295 (Tex. App.

— Houston [1 st 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 i ndividual 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 operat ion of law.APPELLANTS ’ BRIEF Page 19 of 59 which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical[;”] 2) “there must be a causal conn ection 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 thi rd 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 t est s for associational standing. Texas Ass’n of Bus. , 852 S.W.2d at 446

- 48. One test for associational standing is prov ided 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 whi ch the trial court presumably reli ed, also erroneously, in granting the plea to the jurisdiction. (CR 268).APPELLANTS ’ BRIEF Page 20 of 59 T he Texas Sup reme Court provides for a general test for associ ational standing, where t he 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 t he Sons of Confe derate Veterans, Inc. (CR 256) (RR 2: 20
- 23). Th e 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). In dividual 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 interest s of the SCV is the
same as t hose of individual plaintiffs , Bray and Littlefield , the general test for associational standing should be used to determine standing in this matt er. The general test for determination of associational standing is that there “(a) shall be a real controver sy between the parties, which (b) will be actually determined by the judicial declaration sought.” Texas Ass’n of Bus.

, 852 S.W.2d at 446 (quoting Board of Water Engineers v.APPELLANTS ’ BRIEF Page 21 of 59 City of San Antonio

, 283 S.W.2d 722, 724 (Tex. 1955)). This is the test that pl aintiffs 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 gr ounds) (where taxpayer brings action to restrain illegal expenditure of tax money, he sues for himself, and court hol ds 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 th ese distinction s is that meaningful legal remedies must be provided for citizens to assert “well

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

, 648APPELLANTS ’ BRIEF Page 22 of 59 S.W.2d 661, 665

- 66 (Tex. 1983). A plaintiff’s right to bring suit for

common - law injuries should alone confer jurisdiction, because of the constitutional right to a meaningful remedy. Dubai Petroleum , 12 S.W.3d at 76

- 77.

B. Plaintiffs Have Individual Standing Under the Abbo

t t Rule

. Individual standing is determined by a three

- part test. 1) “ T he 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) “T here must be a causal connectio n 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) “I t must be likely, as oppo sed 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 a n injury in fact, an invasion of a legally

- pro tected interest, which is concrete and particularized , that was imminent before being actual , and is not conjectural orAPPELLANTS ’ BRIEF Page 23 of 59 hypothetical. (CR 254

- 55). Both Bray and Littlefield were threatened with imminent injury and then actually injured by Defendant Pres. Fenves ’ announcement that he was going to have the Davis and Wilson monuments moved and then when Defendant Pres. Fenves had the monuments moved. Id. Bray’s and Littlefield’s injuries arise from their identity as a descend a nt of Confederate veteran s an d 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 d edicated

. 2 (CR 119 ). Littlefield’s injury also includes his status as a Littlefield collateral descendant . (RR 2:29

- 30). The removal of the statues destro ys the University ’s and Texas’ efforts to recognize and honor the mi litary 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 evid ence to support such a claim. The only support for this theory is provided in the wan musings of the F enves committee, composed of members with no competency in veterans’ memorials, the law that protects such monum ents from desecration, and, in particular, the specifics of the Littlefield Bequest or the rules promulgated by the UT System Board of Regents for the protection and administration of bequests to the University. Indeed, the engraved pedestal on the Woodrow Wilson monument dedicates the statute to Wilson as “President of the United States, President of Princeton University, Professor of Political Science, Founder of the League of Nations.” Plaintiffs question which of these rubrics expresses racism or white supremacy.APPELLANTS ’ BRIEF Page 24 of 59 Revolutionary armies , is included among the monuments on the University ’s South Mall . (CR 110 ). Bray and Littlefield have
p ers onally suffered injuries from the removal of the monuments, because, unlike most people, they have public ly 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 Universit y did promote for eighty

- two years, before illegally removing the monuments . The University ’s removal of the monuments and the University ’s public a nnouncement of intended removal are the plaintiffs ’ direct and actual injuries.APPELLANTS ’ BRIEF Page 25 of 59 It is highly likely that p laintiffs ’ 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 monume nts was illegal, that Defendant Pres. Fenves public ly 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 sough t 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 act ually caused by Defendant Pres. Fenves ’ announced plans and subsequent removal of statutorily

- protected Texas monuments, and which injuries can be redressed by a favorable court decision.APPELLANTS ’ BRIEF Page 26 of 59 C

. Plaintiffs Are Excepted to the Requirement for Particular ized 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 u nder 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 i njury. Id. Bray has been a Texa s 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 Littlefiel d are accorded standing for the purposes of this appeal and this litigation

.APPELLANTS ’ BRIEF Page 27 of 59 D

. The Sons of Confederate Veterans, Inc., Has Associational Standing

Under Texas Association of Business. The proper test to determine associational standing requires that
t here “(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 controvers y 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 argue s that he has unique authority to re move 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 violat e 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, d efendant incorrectly represented that no real controversy between th e parties exists. (CR 61 ). Specifically, the University allege d that plaintiffs do not dispute thatAPPELLANTS ’ BRIEF Page 28 of 59 the Dolph Briscoe Center for American History is an appropriate place for the Davis and Wilson monuments. (CR 61

- 62). This assertio n is simply not true. Defendant cite s “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 w ith Maj. Littlefield’s express and most significant condition to his Bequest, the monum ents, 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, t he 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. Tex

as Dep’t of Parks and Wildlife v. Miranda , 133 S.W.3d 217,
226
- 27 (Tex. 2004). If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.APPELLANTS ’ BRIEF Page 29 of 59 Miranda

, 133 S.W.3d at 227

- 28. Here, the parties have a fact dispute relative to jurisdiction that defendant materially misrepresented to the trial court, that should have precluded a grant for the plea to the jurisdiction, and which this Court should correct by reversing and remanding this matter for t rial 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

Guarantee s Op en Access to Courts

. The Texas Constitution recognizes that citizens must have access to meani ngful 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. Plaintiff s seek enforce ment of the express and

common law terms of the Littlefield Bequest, which was accepted by theAPPELLANTS ’ BRIEF Page 30 of 59 University by the election of benefits, which stood undisturbed, unchallenged, and detrimentally relied upon by generations of Texa n s as donee bene ficiaries 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 fu nds and improvements on the land transferred from Maj. Littlefield as donor and testator to the University of Texas almost a century ag o. Any donee beneficiary, defined under the express t erms of the Littlefield Bequest a s 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 Texa s will be worth less than dust , once the donor or testator perishes. The Texa s Constitution should, if it does not already d o so in the interpretation of this Court, allow citizens of Texas standing to enforceAPPELLANTS ’ BRIEF Page 31 of 59 gifts or bequests given and accepted for the benefit of Texas citizens and held in trust by government entities.
F. Conclusion on Standing Plaintiffs Bray and Littlefiel d have standing as individual plaintiffs under the Abbott rule . 463 S.W.3d at 633. Plaintiffs Bray and Littlefield have taxpayer sta nding as provided for under the TURF exception. 319 S.W.3d at 919. Plaintiff t he 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, committ ed reversible error in granting defendant’s plea to the jurisdiction.

I I

. DEFENDANT PRESIDENT F ENVES VIOLATED THE TERMS

OF THE LITTLEFIELD BE QUEST

. The University violated terms of the Littlefield Bequest, through waste, negl ect, and express repudiation. Accordingly, t he University should be required to disgorge the funds provided by Maj. Littlefield some ninety years ago in restitution for breach of the Beque st’s terms toAPPELLANTS ’ BRIEF Page 32 of 59 avoid unfair and unjust enrichment ; to plaintiffs as truste es for th e 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, i n a place of prominence on the South M all ; 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 th e 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 know ledge 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. 19 21).APPELLANTS ’ BRIEF Page 33 of 59 With respect to the subject matter of a testamentary gift, the plain language of the instrument in question should be given a construction that most ne arly comports with the intention of the testator as expressed in the instrument as a whole. “ In co nstruing 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, wh ere, by clear language of will testator by his ownAPPELLANTS ’ BRIEF Page 34 of 59 language has made intention clear)). A bequest is “a gift by will of personal property; a legacy.” Black’s Law Dictionary 128 (2d ed. 1910). A specific bequest is “one whereby the testator gives to the l egatee 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 recogni ze the term “charit able 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 w hich 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 aAPPELLANTS ’ BRIEF Page 35 of 59 certain object, the property bequeathed to A.B. Moore and Martha Laura Steedman. Id. The intended beneficiaries are certain: A.B. Moore and Martha Laura Stee d man. 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 campu s 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 create s 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 W ill.APPELLANTS ’ BRIEF Page 36 of 59 to the University

. 4 Id. This satisfies the first elem ent 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 elem ent fo r 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 tr ust, 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 func tion 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 ho wever to the statues of the men named above.” (CR 212).APPELLANTS ’ BRIEF Page 37 of 59 of the will’s execution, Haupt , 231 S.W. at 709, provisions of the Texas Property Code are immaterial. They did not exist at the time t he wil l was executed in 1920 and cannot now be considered as a basis for interpreting M ajor 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 person al property in the amount of $25 0,000 .00 to the University of Texas for the design and construction of a grand memorial ar ch. (CR 211

- 12). The $25 0,000.00 was Littlefield’s personal property and, therefore, a bequest. I n 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, theAPPELLANTS ’ BRIEF Page 38 of 59 Littlefield conveyance cannot be said to be a gift, let alone a charitable gift. Maj. Littlefield use s 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 lan guage: “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 t hat 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 defeatAPPELLANTS ’ BRIEF Page 39 of 59 or in any way prevent the full effect and operation of every part of the will. The pr inciple 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 d octrine 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 t o accept t he terms of a
testamen tary 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 ele cted 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 asAPPELLANTS ’ BRIEF Page 40 of 59 its benefits. Dakan v. Dakan , 125 Tex. 305, 83 S.W.2d 620; Edsall v. Hutchings

, Tex. Civ. App., 143 S.W.2d 700 (writ refused); Wrig

ht 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 pro visions, 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 inconsi stent 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 i n its entirety, which includes funds for the commission and installation of the Littlefield Fountain and its accomp anying monument s on the South M all, design and construction of the Littlefield Dormitory for Women, and the initial funds for the Main Bu ildi ng, 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 forAPPELLANTS ’ BRIEF Page 41 of 59 21 years subsequent to Maj. Littlefield’s demise, complying with an express term of the Will. (CR 213

- 14). The University promised to use the Littlefield Dormitory for the housing of freshmen women , complying with an express term of the Will. (CR 212

- 13). The University also promised to place the South M all 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 acce pted the benefits of the B equest, the University was estopped from denying any portion of the entire pack age of benefits and bur dens. Indeed, t he 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 nearl y ancient pattern of Texan s ’ relianc e on the University to continue its duty to care for the buildings and significant works of art constructed from the Littlefield legacy. W ithout legal authority and in breach of the Littlefield Wil l, Defendant President Fenves has repudiat ed an express testamentaryAPPELLANTS ’ BRIEF Page 42 of 59 term, one which Maj. Littlefield plainly stated was of the greatest significance. (CR 211

- 12). Defendant President Fenves’ knowing and willful repudiation of Maj. Littlef ield’s testamentary legacy to the University calls i nto q uestion 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 donor s to the University are put on fair warning that the University of Texas System believes it has no duty to comp ly with donors’ express terms of bequests or gifts. Indeed, it is unconscionable for the University to take gifts from the living, promise perfo rmance 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 bene ficiaries, 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. Li ttlefield bequeathed funds to the University for the establish ment of University buildings,APPELLANTS ’ BRIEF Page 43 of 59 the publication of a history of the United States, an endowed chair in American history, a fund to purchase scholarly materials concerning the history of the South, and a monumental south entrance to the campus. (CR 209

- 16). Maj. Littlefield’s purpose was to create donee beneficiaries in “the children of the south [who] may be truthfully taught and [the] persons maturing since 1860 may be given the opportunity to inform themselves correctly concerning the south and especially the Southern Confederacy.” (CR 211 )

. This purpose was clearly Maj. Littlefield’s intent in funding the publication of a history of the United States and could be construed to also be the purpose of his testamentary gift for the memorials. Maj. Littlefie ld 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 t he people of the state would feel themselv es 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. Lit tlefield could not have been any clearer in hisAPPELLANTS ’ BRIEF Page 44 of 59 intention that the people of the State of Texas, and in particular those maturing after 1860, were to be and now are donee beneficiaries of his Bequest and morally bound

. Maj. Littlefield’s Bequest created a quasi

- c ontractual obligation between the University and the citizens of Texas as donee beneficiaries. The University ’s acceptanc e of the Littlefield Bequest, the University ’s conduct in compliance with the term s of the Bequest for the past eighty

two year s, and Texas citizens’ enjoyment of the facilities and the significant expression of public art establishe d a benefit to Texans that grant s any Te xan standing for suit against the University ’s Confederate
veteran monuments that were controversial when desi gned 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 b urdens.APPELLANTS ’ BRIEF Page 45 of 59 C. The University Is Barred from Moving the Monuments under

the Doctrine of Quasi

- Estoppel. Regardless of whether Maj. Littlefield’s conveyance to the University of Te xas was a bequest or a trust, the University i s barred from moving the m onuments 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. C iv. 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 pe t.). “Quasi

estoppel precludes a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken. The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one t o 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 ruleAPPELLANTS ’ BRIEF Page 46 of 59 that one who accepts the benefits of a contract must also assume its burdens.” Terrazas v. Carroll , 277 S.W.2d 274, 277 (Tex. Civ. App.

— Eastland 1955, no writ). A party who retains benefits in a transaction cannot deny its obligation and is estopped from taking an inconsistent position. Theriot v. Smith , 263 S.W.2d 181, 183 (Tex. Civ. App.

— Waco 1953, writ dism’d); Baylor Health Care System v. Employers Reinsurance Corp., 492 F.3d 318, 325 (5th Cir. 2007). Agreements bear an implied conditio n 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 (Te x. 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 th e 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 hasAPPELLANTS ’ BRIEF Page 47 of 59 arguab ly continued to comply with the terms for eighty

- two years, the University is now estopped from den ying effect to any provision, and

more particular ly from removing the Davis and Wilso n monuments from their prior sites.

D. The Proper Remedy for Brea ch 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 p ay 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 Universi ty 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. Conc lusion on Breach of the Bequest The U niversity violated terms of the Littlefield Bequest, through waste, neglect, and express repudiation. The University should ,APPELLANTS ’ BRIEF Page 48 of 59 therefore, disgorge the funds provided by Maj. Littlefield some ninety

- six years ago in restitution for unjust enrichment to plain tiffs 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 stat ues and structures where Maj. Littlefield , sculptor Pompeo Coppini, architect Paul Cret , and UT President Vinson intended the statues to be, i n a place of prominence on the South M all, 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

re view 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 subjectAPPELLANTS ’ BRIEF Page 49 of 59 to statutory protection, and the two sections should be reviewed in pari materia to construe complete legislative intent on this issue. Section 21 66.501(a) provides that m onuments o r 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 proper t y 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 memoria l, as defined under these sections , m ay be removed or altered only “(1) by the legislature; (2) by the Texas Historical Commis sion; (3) by the State Preservation Board;” or (4) for construction, repairs, or improvements to the monument or memorial. Id. at Sec. 2166.5011(b)(1

- 4)(c).APPELLANTS ’ BRIEF Page 50 of 59 The monuments of Jefferson Davis and Woodrow Wilson, previously on the University ’s South Mall , ar e 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 significanc e to Texans and Texas , U.S. Presi dent Woodrow Wilson

. (CR 176). Mr. Wilson ’s monument honors him for his role as President of the United States during war time, World War I, President of Princeton University , and the Founder of the League of Nations, the first international peace organiz ation. Id. Both monuments were on state

owned land, the campus of the University of Texas at Austin. Id. The Davis and Wilson monuments are protected “monuments or memorials” as contemplated under Texas Gov’t Code § § 2166. 501(a) and 5011(a)(1)(2).
The statue of Jefferson Davis was a permanent monument, having been in place f or 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
prope rty. (CR 176). The Davis monument honored Jefferson Davis asAPPELLANTS ’ BRIEF Page 51 of 59 President of the Confederacy, Id., which role included his position as Commander

- in

- Chief of the Confederate armies during wartime , including those Confederate armies in Texas

. (CR 9). The Dav is 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 e ven if Jefferson Davis were not a Texas citi zen, the Davis monument was dedicated to a person of historical significance to Texans and Texas, because Mr. Davis was the pr esident of the Confederate nation that Texas joined. The Davis monument is aAPPELLANTS ’ BRIEF Page 52 of 59 protected monument, as contemplated under Texas Government Code § 2166.5011(a)(1)(2). The Davis and Wilson monuments were removed after prompting from the University of Texas Stu dent 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, th e Texas Historical Commission, or the State Preservation Board , and it is undisputed that t he monuments were not removed for construction, re pairs, or improve ments. 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 entitie s 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 C ommunity E ngagement Gregory Vincent

. (CR 115
- 16). Shortly thereafter, Defenda nt Pres. Fenves ordered the removal of the Texas monuments o f Davis and Wilson in direct violation of the statutory authorizati on required under the Texas Governmen t Code.APPELLANTS ’ BRIEF Page 53 of 59 B. The University of Texas Is Not Exempt from the Requirements of

the Monument Pr otection Act. The University of Texas at Austin is not exempt from the requirements of the Texas Governmen t Code , because the monuments

were not “ a project constructed by and for a state institution of higher education .” Sec. 2166.003(2). To the contrar y, t he monuments in question were not cons tructed 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 Univers ity . 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 Fen ves and Vice

- President Vincent disregarded the statutory r equirements 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 personsAPPELLANTS ’ BRIEF Page 54 of 59 acted ultra vires and have caused the University of Texas at Austin and themselves to b e 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 evide nce 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 T exas 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 viola ted Board of Rege nts Rules, by enforcement of University of Texas System Rules, byAPPELLANTS ’ BRIEF Page 55 of 59 replacement of the monuments, and by disgorgement of the current value of the Littlefield Bequest. E ven if the University were exemp ted from the Texas Gov ernmen t Code, Defen dant Pres. Fenves, Vice

- President Vincent, and the so - called South Mal l 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 Re gents 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

, R ule 60101 [,] these procedures are designed to outline administrative processes associated with t he acceptance, administration, and investment of gifts processed or administered by the Off ice 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 keptAPPELLANTS ’ BRIEF Page 56 of 59 firmly in mind. These procedures also cover gifts give n 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 respons ibility 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 admin istrative r ules 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 n or 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 monument s ultra vires and in violation of Texas
statute s a nd Board of Regents rules.APPELLANTS ’ BRIEF Page 57 of 59 V. A CASE OF FIRST IMPRESSION AND REQUEST FOR ORAL ARGUMENT. This is a case of first impression relative to the facts and law involved. Moreover, the citizens of Texas, as donee beneficiaries, have
a par ticular interest in the fair, competent , and prompt resolution of the questions raised in this appeal. Accordingly, plaintiffs request oral argument so that t hese issues of first impre ssion can be better explained and understood by the Court of Appeals

.
PRAYER S
1

. Plaintiffs request that th is Court find that plaintiffs have both indivi dual 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
t erms of the Littlefield Bequest;APPELLANTS ’ BRIEF Page 58 of 59 5

. Plaintiffs ask the Court to rule th at defendant violated Texas Governmen t Code §§ 2166. 501 and 2166 .5011;
6

. Plaintiffs ask the Court to rule that defendant violated University of Texas Sys tem Rules 138 § 2 and 60101 § 2; and,
7

. Plaintiffs ask that the Court award their costs of court and such and furt her 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 T el. (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 APPELLANTSAPPELLANTS ’ BRIEF Page 59 of 59 CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using Micros oft Word 2011 and contains 9,632 words, as determined by the co mputer 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 c opy 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, Aus tin, Texas 78711, by e mail and the Court’s electr onic filing system on November 6 , 2015. /s/KIRK DAVID LYONS ATTORNEY FOR APPELLANTS