APPELLANTS’ REPLY BRIEF

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No. 06-15-00075-CV

_______________________________________________

IN THE 

SIXTH COURT OF APPEALS

at TEXARKANA

_______________________________________________

GARY DAVID BRAY, et al.,

v.

GREGORY L. FENVES

Appealed from the 53rd District Court of

Travis County, Texas

___________________________________________ 

 

APPELLANTS’ REPLY BRIEF 

___________________________________________ 

/s/C.L. Ray /s/Kirk David Lyons

Texas Bar No. 00000034 Texas Bar No. 12743500

604 Beardsley Lane, Suite 100 Southern Legal Resource Center

Austin, Texas 78746 P.O. Box 1235

Tel. (512) 328-9238 Tel. (828) 669-5189

Fax (512) 857-0606 Fax (828) 669-5191

clray4523@hotmail.com kdl@slrc-csa.org

ATTORNEYS FOR PLAINTIFFS

December 28, 2015

ACCEPTED

06-15-00075-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

12/28/2015 11:30:07 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/29/2015 8:53:00 AM DEBBIE AUTREY Clerk
APPELLANTS’ REPLY BRIEF

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TABLE OF CONTENTS 

INDEX OF AUTHORITIES...................................................3

SUMMARY OF THE ARGUMENT..........................................5

ARGUMENT.......................................................................8

I. The District Court Has a Presumption of Jurisdiction 

that Has Not Been Rebutted and Has Been 

Affirmatively Exercised, Affording the District Court 

Jurisdiction...........................................................8

II. Plaintiffs Have Jurisdiction, Because the Trial Court 

Failed to Adequately Consider that Plaintiffs Bray 

and Littlefield Have Individual Standing................11

III. Plaintiffs Have Taxpayer Standing, Because 

Defendant Violated Federal and State Law in 

Removing the Monuments....................................14

A. Defendant’s Removal of the Monuments Violated 

the Terms of the Littlefield Bequest...............14

B. Defendant’s Removal of the Davis and Wilson 

Monuments Violated the Veterans Memorial 

Preservation and Recognition Act (18 U.S.C. § 

1369).........................................................17

C. Defendant’s Removal of the Davis and Wilson 

Monuments Violated the Texas Government 

Code, Sections 2261.501 and 2261.5011.........19

IV. Plaintiffs Have Jurisdiction, Because the Trial Court 

Failed Adequately to Consider that the Sons of 

Confederate Veterans Has Associational Standing...23

V. Federal Precedents Relative to the Purpose and Effect 
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of Monuments Can Be Construed to Provide that 

Defendant’s Removal of the Monuments Was Unlawful 

and Affords Jurisdiction to the Trial Court..............25

PRAYERS..........................................................................35

CERTIFICATES.................................................................37

 

INDEX OF AUTHORITIES 

 

CASES

Abbott v. G.G.E., 463 S.W.3d 633

(Tex. App.—Austin Apr. 30, 2015).............................12-13

American Humanist Association v. Maryland-National Capitol 

Park and Planning Commission, 

No. DKC-14-0550 (D. Md. Nov. 30, 2015)...................25, 26

City of Dallas v. Wright, 36 S.W.2d 973 (Tex. 1931).................10

Dealers Electrical Supply Co. v. Scoggins Construction Co., Inc., 

292 S.W.3d 650 (Tex. 2009)..........................................19

Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000).........9

Dutcher v. Owens, 647 S.W.2d 948 (Tex. 1983)........................19 

La Sara Grain v. First Nat’l Bank of Mercedes, 

673 S.W.2d 558 (Tex. 1984)..........................................19

Lemon v. Kurtzman, 403 U.S. 602 (1971)...............................25

Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009).....27

Powers v. First Nat’l Bank of Corsicana, 

137 S.W.2d 839 (Tex. Civ. App. 1940).............................18 
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Powers v. First Nat’l Bank of Corsicana, 

161 S.W.2d 273 (Tex. 1942)..........................................18

Rodeheaver v. Alridge, 

601 S.W.2d 51 (Tex. Civ. App.—Houston [1st Dist.] 1980, 

writ ref’d n.r.e.).........................................................20 

Salazar v. Buono, 559 U.S. 700 (2010)....................................27

Sweeney v. Jefferson. 212 S.W.3d 556 

(Tex. App.—Austin 2006, no pet.).......................8, 9, 10, 11

Texas Ass’n of Business v. Texas Air Control Board, 

852 S.W.2d 440 (Tex. 1993)..........................................23

Texas State Bd. of Chiropractic Examiners v. Abbot, 

391 S.W.3d 343 (Tex. App.—Austin 2013, no pet.)............19

Utah Highway Patrol Association v. American Atheists, Inc., 

132 S.Ct. 12 (2011)......................................................27

Van Orden v. Perry, 545 U.S. 677 (2005).....................25, 27, 33

STATUTES

Texas Government Code § 2166.501......................7, 9, 10, 20, 35

Texas Government Code § 2166.5011....................7, 9, 10, 21, 35

U.S. Code, 18 U.S.C. § 1369,Veterans Memorial Preservation

And Recognition Act...........................................7, 17, 35

U.S. Code, 38 U.S.C. § 1501(3), 

Regarding Confederate Veterans...................................17

RULES

Texas Rule of Appellate Procedure 38.3, Reply Brief..................5
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Texas Rule of Appellate Procedure 38.6(c), Time to File Briefs....5

OTHER AUTHORITIES

 

4 William V. Dorsaneo III, 

Texas Litigation Guide § 4.05[2]...............................19, 20

Texas House Concurrent Resolution 38, 77th Leg. (2001).........33

SUMMARY OF THE ARGUMENT 

Appellants/Plaintiffs timely submit this reply brief in 

conformity with Rules 38.3 and 38.6(c). Tex. R. App. Pro.

All jurisdictional issues have already been decided by the 

Austin Third Court of Appeals in Sweeney v. Jefferson, 212 

S.W.3d 556 (Tex. App.—Austin 2006, no pet.). District courts are 

courts of general jurisdiction. As courts of general jurisdiction, 

district courts enjoy a presumption of subject-matter jurisdiction 

unless a contrary showing is made. The Texas Supreme Court, as 

the Sweeney court noted, has determined that once a court has 

obtained jurisdiction over a cause of action as incidental to its 

general jurisdiction, the court may exercise any power necessary 

to administer justice to preserve the subject matter of the 

litigation and make its judgment effective. And this Court, like 
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the trial court, derives its jurisdiction from the exercise by the 

trial court of its jurisdiction—specifically, the denial of Plaintiffs’ 

application for temporary injunction. Notwithstanding Plaintiffs’ 

efforts to point out error, the trial court erred by sustaining the 

plea to the jurisdiction and went on to exercise jurisdiction by 

denying the preliminary injunction. Plaintiffs filed a motion to 

void the trial court’s denial of the preliminary injunction, which 

was overruled by operation of law and which was again, an 

exercise of jurisdiction. The trial court had a fair opportunity to 

void its order denying the temporary injunction, and thereby 

affirming that it did not have subject-matter jurisdiction. At this 

juncture, the trial court has now exercised its jurisdiction in this 

matter and no language in the Monument Protection Act divests 

the Court of jurisdiction.

Plaintiffs submit that Sweeney, supra, is on all fours and 

dispositive of the instant matter. However, should this Court 

consider other points, Plaintiffs would begin by correcting a 

significant and material misstatement by Defendant regarding 

Plaintiff’s position as to the legitimate placement of the Jefferson 
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Davis monument. In his brief, Defendant submits that all 

Plaintiffs agree that the University’s removal of monuments to 

the Briscoe Center is a sufficiently prominent position: “It is a 

place where [the monument] needs to be. . . .” Defendant’s 

Response Brief at 15, FN 8. Nothing could be further from the 

truth. Defendant misrepresents the record by selectively citing 

from it. The entire citation from the reporter’s record quotes 

Plaintiffs’ attorney Kirk Lyons as follows: “[The Briscoe Center] 

is a place where it needs to be, but from an artistic and structural 

point of view, you are dealing with fire to move those statues. 

They need to be restored right where they are and we will offer 

testimony as to exactly how and why that should be done. They 

don’t need to go anywhere.” (RR 2:26-27). Plaintiffs have never 

agreed that the Briscoe Center is a proper site for the South Mall 

monuments, and Defendant’s material misrepresentation of the 

reporter’s record cannot be considered inadvertent.

Next, with reference to the statutes involved, the 

University’s removal of the monuments was not merely improper; 

the removal was illegal. Plaintiffs will show that the monument 
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removal was illegal under the Federal Veterans Memorial 

Recognition and Protection Act (18 U.S.C. § 1369); the Texas 

Monument Protection Act §§ 2166.501 and 2166.5011; and under 

an analysis that determines whether a memorial is a veterans’ 

memorial and, therefore, warrants protection under Texas or 

federal law. 

Since the University unlawfully removed the Davis and 

Wilson monuments and expended public funds in doing so, the 

trial court acquired jurisdiction in this matter under the taxpayer 

exception to standing. The trial court also acquired individual 

and associational standing.

ARGUMENT 

I. THE DISTRICT COURT HAS A PRESUMPTION OF 

JURISDICTION THAT HAS NOT BEEN 

ADEQUATELY REBUTTED AND HAS BEEN 

AFFIRMATIVELY EXERCISED AFFORDING THE 

DISTRICT COURT JURISDICTION.

 

The issues in this cause have already been decided in 

Sweeney v. Jefferson, 212 S.W.3d 556 (Tex. App.—Austin 2006, 

no pet.). This decision is dispositive of the instant matter, 

because the clear parallels of fact and law between the two cases 
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are nearly identical. Sweeney involved removal of memorial 

plaques from the Texas Supreme Court Building. In reversing 

the 53rd District Court, the Austin Third Court of Appeals found 

that the trial court erroneously denied subject-matter jurisdiction

to the Texas Division, Sons of Confederate Veterans, Inc. who 

sought declaratory judgment and a temporary injunction against 

the Texas Building and Procurement Commission for violation of 

the Texas Government Code §§ 2166.501 and 2166.5011 by

unlawfully removing memorial plaques from the Texas Supreme 

Court. Id. at 557-60. While the facts vary a bit, the issues before 

this Court are indistinguishable from those before the Sweeney

court.

Texas districts courts are courts of general jurisdiction. 

Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000); 

Sweeney, 212 S.W.3d at 562. “As courts of general jurisdiction, 

Texas district courts enjoy a presumption of subject-matter 

jurisdiction unless a contrary showing is made.” Sweeney, 212 

S.W.3d at 562 (citing Dubai, 12 S.W.3d at 75). 
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As noted in Sweeney, sections 2166.501 and 2166.5011 of 

the Monument Protection Act are silent as to the district court’s 

jurisdiction in this matter, i.e., whether the removal of the 

veterans’ monuments was illegal or not or whether a remedy is 

available for violation of the statute. Sweeney, 212 S.W.3d at 

564. 

A court, once having obtained jurisdiction of a cause of 

action as incidental to its general jurisdiction, may 

exercise any power, or grant any writ, including the 

writ of injunction, necessary to administer justice

between the parties to preserve the subject matter of 

the litigation, and make its judgment effective.

Sweeney, 212 S.W.3d at 564.

Since sections 2166.501 and 2166.5011 do not divest the 

district court of jurisdiction, Defendant does not challenge the 

truth of Plaintiffs’ jurisdictional arguments under 2166.501 and 

2166.5011, but instead relies solely on his contention that the 

sections are inapplicable. No other rebuttals to the presumption 

of jurisdiction are in the record, and accordingly, the district court 

has acquired jurisdiction to decide this matter.

The Texas Supreme Court has determined that once a court 

has obtained jurisdiction of a cause of action as incidental to its 
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general jurisdiction, the court may exercise any power necessary 

to administer justice to preserve the subject matter of the 

litigation and make its judgment effective. City of Dallas v. 

Wright, 36 S.W.2d 973, 975 (Tex. 1931); Sweeney, 212 S.W.3d at 

564. It is undisputed that the trial court did in fact exercise its 

power of jurisdiction by denying Plaintiffs’ application for 

temporary injunction. (CR 280). As set out in the introduction 

above, Plaintiffs apprised the trial court of its error. The trial 

court, however, denied Plaintiffs’ motion to void the trial court’s 

order on the preliminary injunction by function of law, (CR 280), 

thereby affirming the trial court’s exercise of jurisdiction. Had 

the trial court voided the order denying the temporary injunction, 

the trial court would have been affirming that it did not have 

subject-matter jurisdiction. Because the trial court has exercised 

its incidental jurisdiction in this matter and refused to deny its 

exercise of incidental jurisdiction, the trial court has acquired 

general jurisdiction in this matter. Sweeney, 212 S.W.3d at 564.

II. PLAINTIFFS HAVE JURISDICTION, BECAUSE THE 

TRIAL COURT FAILED TO CONSIDER 

ADEQUATELY THAT PLAINTIFFS BRAY AND 

LITTLEFIELD HAVE INDIVIDUAL STANDING.
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In addition, Defendant erroneously argues that Plaintiffs 

Bray and Littlefield have not suffered a personal injury. 

Defendant’s Brief at 6. Defendant alleges that Plaintiffs do not 

plead “facts that sufficiently distinguish them from the general 

public as to the damage alleged.” Id. at 7. This is wholly 

inaccurate. Bray and Littlefield are descendants of Confederate 

veterans and are members of the Texas Division, Sons of 

Confederate Veterans, Inc. (SCV). Bray’s and Littlefield’s 

personal affiliations with this Civil War commemorative 

organization works to preserve historic memory and events that 

are distinguished from those of the general populace. The SCV 

has only about 2,800 members in Texas of a general population of 

about 27 million. SCV members comprise a mere 0.01% of the 

Texas population. Only 2800 people in Texas have distinguished 

themselves from the general population to contribute to this 

historic project to commemorate and honor their own personal 

family stories through re-enacting historic events, remembering 

significant persons, and preserving monuments. The SCV works 

to ensure the maintenance of graves and cenotaphs of American 
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war dead that the general populace does not know about, does not 

care about, and often misconstrues. Bray and Littlefield have not 

merely suffered personal injuries, due to the University’s removal 

of the Davis monument to the Civil War, but more accurately 

unique injuries due to their own direct family participation in

historic events that the Davis monument commemorates. This 

personal, actual injury is concrete and particularized and 

establishes the first prong of the Abbott test for individual 

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

Austin Apr. 30, 2015). 

Bray’s and Littlefield’s personal injuries are fairly 

traceable to Defendant’s unlawful conduct, because the 

University illegally removed the Davis and Wilson monuments, 

as will be shown below and has been shown in Plaintiff’s Brief, 

completing the second prong of the test for individual standing. 

Id. Plaintiffs’ injuries are likely to be redressed by the requested 

relief, sufficing the third prong of the test for individual injury. 

Id. The trial court failed to adequately consider Plaintiffs’ 

individual standing in the matter, which provides the trial court 
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with jurisdiction. 

III. PLAINTIFFS HAVE TAX-PAYER STANDING 

BECAUSE DEFENDANT VIOLATED FEDERAL 

AND STATE LAW IN REMOVING THE 

MONUMENTS.

A. Defendant’s Removal of the Monuments Violated 

the Terms of the Littlefield Bequest.

Defendant erroneously argues that President Fenves had 

“full authority to remove, relocate, or alter the statues in 

question.” Defendant’s Brief at 8. Defendant provides a 

disingenuous construction of Maj. Littlefield’s Will that proposes 

“the President of the University is authorized to change the 

location of the statues, so long as they are given prominence 

wherever they are located.” Id. at 9. The testator’s intent was 

never to retain authority in the University President in 

perpetuity as to the location of the monuments, and such 

allegation is not merely spurious, but also purposefully 

misleading.

Maj. Littlefield’s Will expressly provided for the veterans 

monuments to be placed on the University’s South Mall and no 

where else. The Will states: “The arrangement given here is 
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suggested to the committee as being the best; however, they are 

authorized to change it or the design suggested if they wish, 

giving prominence however to the statues of the men named 

above.” (CR 212). 

The testator authorized changes to the arrangement or the 

design of the monuments, not to the site of the monuments. The 

phrase “place of prominence” refers to a prominent place within 

the design. The Will makes provision of a grand arch, which was 

modified into the Littlefield Fountain and the accompanying

veterans’ monuments. Id. Thus, Maj. Littlefield provided 

authorization to modify the arrangement of the monuments on 

the same site that everyone involved in the project had always

and only contemplated. For instance, the design of the arch was 

changed into a fountain, but the placement was on the same site

as the arch. The University recently moved one outdoor 

monument to an indoor location a mile and a half away from all 

other monuments in the complex. The second monument was

removed with no plans for its return or other use. The 

University’s assertion that it can dismember monuments of a 
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single complex and scatter them categorically extinguishes the 

testator’s intent in his Will.

Moreover, the testator gave authorization to a design 

committee. Id. The three-member committee was expressly 

named: Will C. Hogg of Houston, Texas; H.A. Wroe of Austin, 

Texas; and whoever was the President of the University of Texas

at the season of construction and final placement. The testator 

does not give authorization to the University of Texas, nor to the 

President alone, nor in perpetuity. The design committee 

accomplished its purpose and wound down its business, having 

placed the monument complex in its current location in

perpetuity. 

The University admits in pre-litigation documents that the 

only place the testator intended the monuments to be placed was 

on the South Mall. (CR 179-81). No other location was ever 

contemplated by anyone involved in the design, construction, 

and placement of the monuments. Id. The testator’s and donor’s 

intent as expressed in his Will, the sculptor’s design as expressed 

in his plans, and the architect’s placement as expressed and 
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realized in the present landscape of monuments from the Main 

Building to the Littlefield Fountain point to the fact that these 

veterans’ monuments were always and only intended to be 

placed prominently on the University’s South Mall and nowhere 

else. (CR 179).

Even if Defendant did have authority to remove the 

monuments, such authority in the Littlefield Will does not 

exempt Defendant from the requirements of federal and Texas 

law that protects veterans’ monuments.

B. Defendant’s Removal of the Davis and Wilson 

Monuments Violated the Veterans Memorial 

Preservation and Recognition Act (18 U.S.C. § 1369).

The Davis and Wilson monuments were dedicated to 

American veterans, as provided under 38 U.S.C. § 1501(3). 

Defendant’s removal of the Davis and Wilson monuments 

violated the Veterans Memorial Preservation and Recognition 

Act: 

(a) Whoever, in a circumstance described in subsection 

(b), willfully injures or destroys, or attempts to injure 

or destroy, any structure, plaque, statue, or other 

monument on public property commemorating the 

service of any person or persons in the armed forces of 

the United States shall be fined under this title, 
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imprisoned not more than 10 years, or both.

(b) A circumstance described in this subsection is that 

(1) in committing the offense described in 

subsection (a), the defendant travels or causes to 

travel in interstate or foreign commerce, or uses 

the mail or an instrumentality of interstate or 

foreign commerce. . . .

18 U.S.C. § 1369. 

Defendant willfully injured the Davis and Wilson 

monuments by illegally removing the monuments from public 

view on the University’s South Mall. Defendant unlawfully 

removed the monuments from public view. The monuments 

commemorated the service of two persons in the Armed Forces of 

the United States, the Commanders-in-Chief of American Armies. 

In unlawfully removing the monuments, Defendant used 

the mail or other instrumentality of interstate commerce, 

including but not limited to e-mail or other forms of electronic 

communication, to communicate with and enter into a contract 

with Jerome Patrick Sheehy of Vault Fine Art Services, who

removed the veterans’ monuments. (RR 2:95-97).

Defendant violated the Veterans Memorial Preservation 

and Recognition Act by entering into a contract via the mail or 
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other instrumentality of interstate commerce and injured the 

Davis and Wilson monument by removing them. This violation of 

federal law, paid for with the expenditure of public funds, gave 

the trial court jurisdiction by means of the taxpayer exception to 

standing.

The Court’s consideration of the Veterans Memorial 

Preservation and Recognition Act is an issue of first impression.

C. Defendant’s Removal of the Davis and Wilson 

Monuments Violated the Texas Government Code, 

Sections 2166.501 and 2166.5011.

Statutes related to the same general subject matter and 

with the same general object or purpose are in pari materia. 

Texas State Bd. of Chiropractic Examiners v. Abbot, 391 S.W.3d

343, 348-50 (Tex. App.—Austin 2013, no pet.); see also 4 William 

V. Dorsaneo III, Texas Litigation Guide § 4.05[2]. Whenever 

possible, statutes in pari materia should be construed in the 

same light in order to give full effect to their legislative intent. 

Dealers Electrical Supply Co. v. Scoggins Construction Co., Inc., 

292 S.W.3d 650, 658 (Tex. 2009). Courts are also governed in 

pari materia in construing subsections of the same legislative 
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act. Dutcher v. Owens, 647 S.W.2d 948, 949-51 (Tex. 1983). 

Even where statutes are not in pari materia, courts will 

generally construe statutes on the same subject matter to 

harmonize them. La Sara Grain v. First Nat’l Bank of Mercedes, 

673 S.W.2d 558, 565 (Tex. 1984). 

Where both general and specific statutes cover the same 

subject matter, the specific statute is a special law that 

constitutes only a part of the legislative jurisdiction and is 

probably covered by the general statute. Rodeheaver v. Alridge, 

601 S .W.2d 51, 54 (Tex. Civ. App.—Houston [1st Dist.] 1980, 

writ ref’d n.r.e.). Specific rules for the construction of general 

and specific statutes apply. 4 Dorsaneo § 4.05[2].

Here, the subsections of the Monument Protection Act are 

not examples of conflicting general and specific statutes, but 

examples of complementary statutes, whose construction should 

be harmonized. Subsection 501 concerns the identification, and 

subsection 5011 concerns the identification and protection of 

veterans’ monuments. Since no conflict, but overlap between 

subsections exists, the Court should harmonize the two 
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subsections and construe them as a whole.

The subsection 2166.501, on Monuments and Memorials, 

defines veterans’ monuments as:

(a) A monument or memorial for Texas heroes of the 

Confederate States of America or the Texas War for 

Independence or to commemorate another event or 

person of historical significance to Texans and this 

state may be erected on land owned or acquired by the 

state or, if a suitable contract can be made for 

permanent preservation of the monument or memorial, 

on private property or land owned by the federal 

government or other states.

The second subsection, 2166.5011, Removal, Relocation, or 

Alteration of a Monument or Memorial, defines veterans’ 

monuments as:

a) In this section, "monument or memorial" means a 

permanent monument, memorial, or other 

designation, including a statue, portrait, plaque, seal, 

symbol, building name, or street name, that:

(1) is located on state property; and

(2) honors a citizen of this state for military or warrelated service. 

(b) Notwithstanding any other provision of this code, 

a monument or memorial may be removed, relocated, 

or altered only:

(1) by the legislature;

(2) by the Texas Historical Commission;

(3) by the State Preservation Board; or

(4) as provided by Subsection (c).

Using the rule of statutory construction of in pari materia
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and harmonizing the two adjacent subsections, the definition of a 

monument should reasonably be:

A permanent monument, memorial, or other designation, 

including a statue, portrait, plaque, seal, symbol, building name, 

or street name that: (1) is located on federal, state, or private 

property, and (2) honors a citizen of this state for military or 

war-related service, or a person of historic significance to Texans 

and this state, including but not limited to (1) Texas heroes of 

the Confederate States of America, (2) the Texas War for 

Independence, or (3) to any other event of historic significance to 

Texans and this state.

Using this harmonization of subsections, when Defendant 

removed the monuments without authorization from a 

competent state agency with authority to remove monuments, 

violated the Texas Monument Protection Act. The Davis 

monument was a permanent monument or statue, located on 

state property that honored a person of historic significance to 

Texans and this state. The Wilson monument was a permanent 

monument or statue, located on state property that honored a 
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person of historic significance to Texans and this state.

Defendant’s expenditure of government funds to remove 

the monuments without proper statutory authority violated the 

Monument Protection Act and provided the trial court with 

jurisdiction in this matter.

Defendant ignored the terms of the Littlefield Bequest in 

removing the Davis and Wilson monuments; Defendant entered 

into a contract through an instrumentality of interstate 

commerce, expending public funds to do so, and violated federal

law designed to protect veterans’ monuments and Texas law to 

protect veterans’ and historic monuments. Defendant’s illegal 

expenditure of public funds in violation of law gives Plaintiffs’ 

taxpayer standing in this matter as an exception to the general 

rule to show a particularized injury for standing. 

IV. PLAINTIFFS HAVE JURISDICTION, BECAUSE 

THE TRIAL COURT FAILED TO CONSIDER 

ADEQUATELY THAT THE SONS OF 

CONFEDERATE VETERANS, INC., HAS 

ASSOCIATIONAL STANDING.

Defendant erroneously contends that this Court should use 

the test used in Texas Association of Business v. Texas Air 
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Control Board in the instant matter. 852 S.W.2d 440, 447 (Tex. 

1993). Defendant’s Brief at 9. Texas Association of Business 

(TAB) is distinguished from this matter, because TAB concerned 

a business association, charged with civil penalties, sought a 

declaratory judgment challenging the enabling statutes of two 

state agencies as conflicting with the open courts and jury trial 

provisions of the Texas Constitution.		Here, in contrast, we have a 

non-profit organization attempting to enjoin a state institution of 

higher education from violating state and federal law and then 

seeking declaratory judgment of these violations. The general 

test for associational standing is appropriate here, because the 

purpose and interests of the SCV are the same as those of Bray 

and Littlefield. Defendant’s attempt to utilize a test for standing 

from a precedent is irrelevant absent Defendant’s showing that 

his proposed test is applicable to the instant matter. The facts 

from Texas Association of Business require the use of a standing 

analysis materially distinguishable from the facts in the instant 

matter.

SCV and Defendant have a real controversy as to the 
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placement of the veterans’ monuments that will be actually 

determined by the Court’s declaratory judgment as to whether 

the monuments were illegally removed. These two elements of 

the general associational standing test were met, which afforded 

the trial court jurisdiction.

V. FEDERAL PRECEDENTS RELATIVE TO THE 

PURPOSE AND EFFECT OF MONUMENTS CAN 

BE CONSTRUED TO PROVIDE THAT’S REMOVAL 

OF THE MONUMENTS WAS UNLAWFUL AND 

AFFORDs JURISDICTION TO THE TRIAL COURT.

In Van Orden v. Perry, the U.S. Supreme Court handed 

down an opinion affirming the constitutionality of the Ten 

Commandments monument at the Texas Capitol in Austin. 545 

U.S. 677, 697-98 (2005). The court used the legal-judgment test

to determine whether a passive monument violates the 

Establishment Clause of the federal Constitution. Id. at 700. A 

court “must take account of context and consequences measured 

in light of [the] purposes” of the Establishment Clause. Id. (J. 

Rehnquist). Subsequent courts have applied the Van Orden test, 

the Lemon test, Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), 

or a hybrid of both. American Humanist Association v. 
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Maryland-National Capitol Park and Planning Commission, No. 

DKC-14-0550 (D. Md. Nov. 30, 2015).

The very recent case of American Humanist was handed 

down on November 30, 2015, after plaintiffs filed their brief.

American Humanist provides the most thorough analysis of a 

veterans’ monument using both Van Orden and Lemon tests to 

determine whether a veterans’ monument had a religious purpose 

or effect. Plaintiffs applied to amend their brief subsequent to 

filing, because plaintiffs felt a duty to the court to inform as to 

this pertinent case. 

The monument at issue in American Humanist was a 20-

foot-high cross, placed at a major highway intersection. Id. The 

monument was placed by the American Legion, a prominent 

veterans’ organization and had been present since 1919. Id. The 

monument was placed on city property. Id. The monument was 

dedicated to the slain American soldiers of World War I, the 

Secretary of the Navy was the keynote speaker at the 

monument’s dedication, and the monument has been used to 

commemorate veterans ever since the dedication. Id. The 
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monument has been marked with express wording that the 

monument was dedicated to veterans and soldiers. Id. Other 

monuments in the park with the memorial cross were also 

dedicated and used to commemorate veterans. Id. 

The American Humanist Association brought suit against 

the public landowner of the park and cross in 2014.1 Id. The 

association alleged that the cross had a predominant purpose and 

primary effect that endorsed religion rather than promoted the 

commemoration of veterans and war dead. The issue as to what 

the purpose and effect of an expressly constructed veterans’ 

monument is pertinent to the instant matter.

Plaintiffs have reviewed other U.S. Supreme Court cases 

that have followed Van Orden’s test for passive monuments, 

																																																							 1			Title to the land was at some point transferred to the state. Id.

2		Most of the inscriptions on the monument complex are not in the record.

3		The citation certainly applies to the seventeen monuments and twenty-one

historical monuments on the Capitol grounds; however, plaintiffs suggest 

that because the University South Mall was physically aligned with the 

dome of the Texas Capitol, the free space along University Avenue, the 

Littlefield Fountain, the other South Mall veterans’ monuments, and the 

Texas Tower, the University aesthetically and culturally aligned itself and 

the Littlefield monuments as an extension of the commemorative effect of 

the Capitol monuments that compose Texas identity. Just such a 

commemorative extension was created on the National Mall in Washington, 

D.C., when Washington planners built the Lincoln Memorial and extended 

the Mall by one mile to the Memorial. Indeed, the building of the Littlefield 
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including: Utah Highway Patrol Association v. American 

Atheists, Inc., 132 S.Ct. 12 (2011) (whether memorial crosses 

along Utah highways for state troopers killed in the line of duty 

impermissibly endorsed religion); Salazar v. Buono, 559 U.S. 700 

(2010) (whether a cross on a mountain park impermissibly 

endorsed religion); Pleasant Grove City, Utah v. Summum, 555 

U.S. 460 (2009) (whether a city could permissibly exclude a 

monument to Summum from a park with other monuments). 

The veterans’ monuments at the University of Texas at 

Austin and their commemorative expression of veterans’ 

sacrifices can be identified under modified Van Orden and Lemon

tests. These federal determinations of the purpose and effect of 

veterans’ monuments would most likely construe the University’s 

removal of the veterans’ monuments as violations of law that 

have conferred jurisdiction on the trial court.

A monument on public land is a veterans' monument, if it 

was erected with the predominant purpose of commemorating one 

or more, named or unnamed, American or Texas veterans and the 

monument has the primary effect of commemorating such 
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American or Texas veterans.

The predominant purpose of a monument shall be 

determined by considering the circumstances of construction and 

design of the monument; payment for land, materials, and work 

of the monument; the monument's express purpose, as evidenced 

by inscriptions on or near the monument itself; and 

contemporaneous reports of the construction and dedication of the 

monument.

The primary effect of the monument shall be determined by 

whether an informed, reasonable observer would view the 

monument as commemorating American or Texas veterans. An 

informed, reasonable observer is aware of the purpose, context, 

and history of the events giving rise to the commemoration 

expressed through the monument. The issue is not whether any 

person might be offended by the monument, nor whether some 

people might be offended, but rather what would the informed, 

reasonable person think about the monument. 

The primary effect of the monument is determined by the 

prima facie writing or engravings on or near the monument, 
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whether the monument expressly memorializes service members, 

whether the monument is placed singly or in a complex with 

other monuments or structures as a whole and what the complex 

expresses, what uses the monument—and its complex if placed

within one—has been put, and how long the monument has stood.

The predominant purpose of the University monuments was 

to commemorate American and Texas veterans. The Davis 

monument is undisputed to be a monument to a Confederate 

veteran. In an act of national reconciliation, Congress declared 

that Confederate veterans are American veterans. 38 U.S.C. § 

1501(3). Jefferson Davis, as Commander-in-Chief of the 

Confederate Armies, is an American veteran of the Civil War and 

an American veteran and hero of the Mexican War. Woodrow 

Wilson, as Commander-in-Chief of the American Armies in World 

War I, is also an American veteran. 

The construction of the monuments was funded and 

designed by a private benefactor of the University of Texas, 

George Washington Littlefield, who had as his primary, express 

purpose to commemorate American history, but especially the 
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American Civil War. (CR 210-12, 235). The University admits 

that Maj. Littlefield created the monuments in order for 

“students to honor in a solemn place those who had hitherto 

served and died in the nation’s wars.”. . . (CR 180). In addition to 

the monuments, Maj. Littlefield bequeathed the funds for the 

purchase of scholarly materials on the history of the South, the 

endowment of a scholarly chair in American history, and the 

publication of a volume on American history. Id. All these 

individual bequests are provided for in a single paragraph of Maj. 

Littlefield’s Will, paragraph no. 1 of the thirty-six paragraphs in 

the Will. Id. The circumstances of the design and construction of 

the monument support the claim that the Jefferson Davis and 

Woodrow Wilson monuments were established to commemorate 

American veterans of the Civil War and World War I. 

Maj. Littlefield donated the funds for the design and 

construction of the monuments, and he did so expressly to 

commemorate American and Texas veterans. (CR 210-12, 235). 

Inscriptions on the pedestals of the monuments expressly 

commemorate Jefferson Davis and Woodrow Wilson as 
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commanders-in-chief of American Armies in the Civil War and 

World War I, respectively. (CR 176). Further inscriptions 

commemorate Davis and Wilson for their service to the United 

States and the nations of the world. 

Contemporaneous reports of the construction and 

dedication of the monuments are not in the record.

The evidence on the record supports plaintiffs’ claim that 

the Davis and Wilson monuments’ primary purpose is to 

commemorate American veterans of the Civil War and World 

War I.

The primary effect of the monuments has been to 

commemorate American and Texas veterans. An informed, 

reasonable observer would view the monuments as 

commemorating American and Texas veterans. The prima facie 

inscriptions on the monuments commemorate American and 

Texas veterans. One of the inscriptions around the Littlefield 

Foundation reads:

To the men and women of the Confederacy who fought 

with valor and suffered with fortitude that states’ rights 

be maintained and who, not dismayed by defeat nor 

discouraged by misrule, builded [sic] from the ruins of a 
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devastating war a greater south. And the men and 

women of the nation who gave of their possessions and 

of their lives that free government be made secure to 

the people of the earth this memorial is dedicated.2

(CR 181). 

Inscriptions on monument pedestals above the fountain

further commemorate individual veterans, (CR 179): Robert E. 

Lee, Commander of the Army of Northern Virginia; and General 

Albert Sidney Johnston, Commander of the Army of Tennessee.

The complex of monuments on the University’s South Mall 

includes the buildings surrounding the statues and extends to the 

Texas Capitol. From the Texas Tower and UT Main Building, to 

the Biblical inscription that “Ye Shall Know the Truth and the 

Truth Shall Set You Free,” to the monument to George 

Washington, Commander-in-Chief of the Revolutionary Armies, 

through the Littlefield veterans’ monuments, the Littlefield 

Fountain, and to the Texas Capitol and Capitol monuments, the 

entire complex of University and Capitol is placed as a single 

complex. The complex comprises the largest museum of freestanding sculpture in Texas, and the purpose of the UT-Capitol 

																																																							 2		Most of the inscriptions on the monument complex are not in the record.
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Monument Complex is to commemorate the “people, ideals, and 

events that compose Texan identity.”3 Van Orden, 545 U.S. at 

681; Tex. H. Con. Res. 38, 77th Leg. (2001). The people, ideals, 

and events that compose Texas identity as evidenced by the 

Capitol monuments extends to the Littlefield veterans’ 

monuments. The removal or defacing of one of the monuments 

impairs the complete expression of the assembled Texas 

monuments. If each monument in the Capitol-UT complex is a 

page in a book that physically expresses one event in Texas 

history, whether tragedy or triumph, the removal of even one 

monument is an erasure of Texas history that should not be 

countenanced by this Court.

The Littlefield monuments have stood at the University for 

																																																							 3		The citation certainly applies to the seventeen monuments and twenty-one

historical monuments on the Capitol grounds; however, plaintiffs suggest 

that because the University South Mall was physically aligned with the 

dome of the Texas Capitol, the free space along University Avenue, the 

Littlefield Fountain, the other South Mall veterans’ monuments, and the 

Texas Tower, the University aesthetically and culturally aligned itself and 

the Littlefield monuments as an extension of the commemorative effect of 

the Capitol monuments that compose Texas identity. Just such a 

commemorative extension was created on the National Mall in Washington, 

D.C., when Washington planners built the Lincoln Memorial and extended 

the Mall by one mile to the Memorial. Indeed, the building of the Littlefield 

Monuments coincided with the construction of veterans’ monuments across 

the country.
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Page 35 of 37

eighty-four years. While individuals have expressed dismay at 

the presence of the veterans’ monument, the University has 

undertaken no action to remove the monuments until Pres. 

Fenves recently took office. Indeed, the University elected to 

accept the benefits of the Littlefield bequest ninety-five years ago. 

The Davis and Wilson monuments have reached the age of 

antiquity for monuments in Texas, and their uncontested 

acceptance, construction, placement, and longevity support the 

theory that the informed, reasonable observer would think that 

the monuments’ primary effect is to commemorate American and 

Texas veterans.

Since the predominant purpose and primary effect of the 

Davis and Wilson monuments is to commemorate American and 

Texas veterans, the Court should find that the statues are 

protected under §§ 2066.501 and 2066.5011 of the Texas 

Government Code.

PRAYERS

1. Plaintiffs request that this Court reverse the trial 

court’s grant of the plea to the jurisdiction and 
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remand for a trial on the merits;

2. Plaintiffs request that this Court order the trial court 

to apply the proposed Veterans’ Monument Protection 

analysis to preserve the veterans’ monuments at 

issue; 

3. Plaintiffs request that this Court find that Defendant 

violated the federal Veterans Memorial Preservation 

and Recognition Act (18 U.S.C. § 1369) and refer this 

finding to the United States Attorney for the Western 

District of Texas, Austin Division;

4. Plaintiffs request that this Court order Defendant to 

return the Davis and Wilson monuments back to their 

original pedestals at the University promptly; and,

5. Plaintiffs ask that the Court award them reasonable 

attorney fees, costs of court, and such and further 

relief to which plaintiffs are justly entitled to.
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RESPECTFULLY SUBMITTED,

/s/C.L. Ray /s/Kirk David Lyons

Texas Bar No. 00000034 Texas Bar No. 12743500

604 Beardsley Lane, Suite 100 Southern Legal Resource Center

Austin, Texas 78746 P.O. Box 1235

Tel. (512) 328-9238 Tel. (828) 669-5189

Fax (512) 857-0606 Fax (828) 669-5191

clray4523@hotmail.com kdl@slrc-csa.org

ATTORNEYS FOR PLAINTIFFS

December 28, 2015

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer 

using Microsoft Word 2011 and contains 5,380 words, as 

determined by the computer software’s word-count function, 

excluding the sections of the document listed in Texas Rule of 

Appellate Procedure 9.4(i)(3).

/s/C.L. Ray

ATTORNEY FOR PLAINTIFFS

Dated: December 28, 2015

CERTIFICATE OF SERVICE

I certify that a copy of Plaintiffs’ Brief was served on Pres. 

Greg L. Fenves, President of the University of Texas at Austin, 

through counsel of record, Adam N. Bitter, Office of the Texas 

Attorney General, P.O. Box 12548, Austin, Texas 78711, by email at adam.bitter@texasattorneygeneral.gov and the Court’s 

electronic filing system on December 28, 2015.

/s/C.L. Ray

ATTORNEY FOR PLAINTIFFS