APPELLANTS’ REPLY BRIEF Page 1 of 37 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 Tr avis County, Texas

___________________ ________________________ APPELLANT S’ 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 ATTORNEY S 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

CLERKAPPELLANTS’ REPLY BRIEF Page 2 of 37 TABLE OF CONTENTS INDEX OF AUTHORITIES...................................................3 SUMMARY OF THE ARGU MENT......................................

.. ..5 AR GUMENT.......................................................................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 I I

. Plaintiffs Have Jurisdiction, Because the Trial Court Failed to Adequately Consider that Plaintiffs Bray and Littlefield Have Individual Standing...... ..........11 I I I. 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 2 261.5011 .........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 EffectAPPELLANTS’ REPLY BRIEF Page 3 of 37 of Monuments Can Be Constru ed to Provide that Defendant’s Removal of the Monuments Was Unlawful and Affords Jurisdiction to the Trial Court ..............25 PRAYE RS..........................................................................35 CERTIFICATES................................................................. 37 INDEX OF AUTHORITIES CASES Abbott v. G.G.E. , 463 S.W.3 d 633 (Tex. App.

— Austin Apr. 30, 2015)

..................... ........12
- 13 Am e

rican 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 (T ex. Civ. App. 1940) .............................18APPELLANTS’ REPLY BRIEF Page 4 of 37 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.3 d 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 A nd 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 ..................5APPELLANTS’ REPLY BRIEF Page 5 of 37 Texas Rule of Appellate Procedure 38.6(c), Time to File Briefs

.... 5 OTHER AUTHORITIES
4 William V. Dorsaneo III, Texas Litig ation Guide § 4.05[2]

............................... 19, 20 Texas House Concurrent Res o lution 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 jurisdictio nal iss ues 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 enj oy a presumption of subject

- matter jurisdiction unless a cont rary showing is made. T he Texas Supreme Court , as the Sweeney court noted , has determined that once a co urt has obtained jurisdiction over a cause of action as incidental to its general jurisdic tion, 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, likeAPPELLANTS’ REPLY BRIEF Page 6 of 37 the trial court, derives its juris diction from the exercise by the trial court of its juris diction

— specifically, the denial of Plaintiffs’ application for temporary injunction. Notwithstanding Plaintiffs’ efforts to po int out error, the trial c ourt erred by sustaining the plea to the jurisdiction and went on to exercise juris diction b y denying the preliminary injunction

. Plaintiffs filed a motion to void the trial court’s denial of the preliminary injunction , whi ch was overruled by operation o f law and which was again, an exercise of juris diction. The trial court had a fair opp ortuni ty to void its order denying th e temporary injunction , and thereby af firming that it did not have subject

- matter jurisdiction. At this juncture, the trial court has now exercised its juris diction in this

m atter and no language in the Monument Protection A ct 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 misstatem ent by Defendant regarding Plaintiff ’s position as to the legitimate placement of the J effersonAPPELLANTS’ REPLY BRIEF Page 7 of 3 7 D avis monument. In his brief, Defendant submits that all Plaintiffs agree that the U niversity ’s removal of monuments to the Bri scoe C enter is a sufficiently pr ominent 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 selectiv ely citing from it

. The entire citation fro m the r eporter’s record quotes P laintiffs ’ 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). Plaintiff s have never agreed that the Briscoe Center is a proper site for the South Mall monuments, and D efendant’s m aterial misrepresentation of the reporter’s record cannot be considered inadvertent. Next, with reference to the statutes involved, t he University’s removal of the monuments was not merely improper; the removal was illegal. Plaintiffs will show that the m onumentAPPELLANTS’ REPLY BRIEF Page 8 of 37 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 a nd Wilson monuments and expended public funds in doing so , the trial court acquired jurisdiction in this matter under the taxpayer excepti on 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 HA S 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 cas esAPPELLANTS’ REPLY BRIEF Page 9 of 37 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 r emoving 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 Pe troleum 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 (ci ting Dubai , 12 S.W.3d at 75).APPELLANTS’ REPLY BRIEF Page 10 of 37 As noted in Sweeney, s ections 2166.501 and 2 166.5011 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 w rit 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 o f jurisdicti on, D efendant does not ch allenge the truth of P laintiffs’ jurisdictional arguments under 21 66.501 and 2166.5011, but instead relies solely on his contention that the sections are inapplicable . N o other rebuttals to the presumption of jurisdic tion are in the record, and accordingly, the district court has acquired jurisdiction to decide this matter. T he Texas Supreme Court has determined that once a court has obtained jurisdiction of a cause of action as incidental to itsAPPELLANTS’ REPLY BRIEF Page 11 of 37 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 t he trial court did in fact exercise its
po wer 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

. Th e trial court, however, deni ed P laintiffs’ 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 tria l 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. I I. PLAINTIFF S HAVE JURISDICTION, BECAUSE THE TRIAL COURT FAILED TO CONSIDER ADEQUATELY THAT PLAINTIFFS BRAY AND LITTLEFIELD HAVE INDIVIDUAL STANDING.APPELLANTS’ REPLY BRIEF Page 12 of 37 In addition, Def endant erroneously ar gues that P laintiffs Bray and Littlefield have not suffered a personal injury. Defendant’s Brief at 6. Defendant alleges that P laintiffs 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 affiliat ions with this Civil War commemorative
org anization 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 po pulation. 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 pe rsons, and preserving monuments. The SCV works to ensure the maintenance of graves and cenotaphs of AmericanAPPELLANTS’ REPLY BRIEF Page 13 of 37 war dead that the general populace does not know about, does not care about, and often misconstrues. Bray and Littlefield have not merely suffere d 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 in jury 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 in juries are fairly traceable to D efendant’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’ injur ies 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 P laintiffs’ individual standing in the matter, which provide s the trial courtAPPELLANTS’ REPLY BRIEF Page 14 of 37 with juri sdiction. I I I. 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 Pres ident 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 propose s “the President of the University is authorized to cha nge 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 allega tion is not merely spurious, but also purposefully misleading

. Maj. Littlefield’s Will expressly provided for the veterans monuments to be plac ed on the University’s South Mall and no where else . The Will states: “The arrangement given here isAPPELLANTS’ REPLY BRIEF Page 15 of 37 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 des ign 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
vetera ns’ 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 a ssertion that it can dismember monuments of aAPPELLANTS’ REPLY BRIEF Page 16 of 37 single complex and scatter them categorically extinguishes the testator’s intent in his Will. Moreover, the te stator gave authorization to a design committee

. Id. The three

- member committee wa s expressly named: Will C. Hogg of Houston, Texas; H.A. Wroe of Austin, Texas; and whoever wa s the President of the University of Texas at the season of construction and final placement. The testator does not give authorization t o the University of Texas, nor to the President alone , nor in perpetuity . T he design committee

accom plished its purpose and wound down its business, having placed the monument com plex in its current location in perpetuity. The University admits in pre

- l itigation 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 p lans, and the architect’s placement as expressed andAPPELLANTS’ REPLY BRIEF Page 17 of 37 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 D efendant did have authority to remove the monuments, such authority in the Li ttlefield Will does not exempt D efendant 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).
T he 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 Preserva tion and Recognition Act: (a) Whoever, in a circumstan ce 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,APPELLANTS’ REPLY BRIEF Page 18 of 37 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 f oreign 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 publ ic view . The monuments commemorated the service of two persons in the Armed F orces of the United States, the C ommanders

- in

- Chief of American A rmies. In unlawfull y removing the monuments, D efend ant used the mail or other instrumentality of interstate commerce, including but not limited to e

- mail or other forms of electronic

c ommunication, to communicate with and enter i nto a contract with Jerome Patrick Sheehy of Vault Fine Art Services, who

remo ved the veterans ’ monuments. (RR 2:95

- 97). Defendant violated the Veterans Memorial Preservation and Recognition Act by entering into a contract via the mail orAPPELLANTS’ REPLY BRIEF Page 19 of 37 other instrumentality of interstate commerce and injured the Davis and Wilson monument by remo ving 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.3 d 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 the ir 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 legislativeAPPELLANTS’ REPLY BRIEF Page 20 of 37 act. Dutcher v. Owens , 647 S.W.2d 948, 949

- 51 (Tex. 1983).
Even where s tatutes 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 Mer cedes , 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 stat ute. 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 Protecti on Act are not examples of conflicting general and specific statutes, but examples of complementary statutes, whose construction should be harmonized . S ub section 501 concern s th e identification, and subsection 5011 concerns the identification and protecti on of veterans’ m onumen ts . Since no conflict , but overlap between subsections exist s , the Court should harmonize the twoAPPELLANTS’ REPLY BRIEF Page 21 of 37 subsections and construe them as a whole. The subsection 2166.501, on Monuments and Memorials, defines veterans’ monuments as : (a) A monum ent 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 M emorial, 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 war

related 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 Hi storical Commission; (3) by the State Preservation Board; or (4) as provided by Subsection (c). Using the rule of statutory construction of in pari materiaAPPELLANTS’ REPLY BRIEF Page 22 of 37 and harmonizing the two adjacent subsections, the def inition 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

wa r - 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
Ind ependence, or (3) to any other event of historic significance to Texans and this state. Using this harmonization of subsections, when D efendant 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 aAPPELLANTS’ REPLY BRIEF Page 23 of 37 person of historic signifi cance to Texans and this state. D efendant’s expenditure of government funds to remove the monuments without proper statutory authority violate d the Monument Protection Act and provided the trial court with jurisdiction in this matter. Defendant ignored the terms of the Littlefield Bequest in removing th e Davis and Wilson monuments; D efendant entered into a contract through an instrumentality of interstate

commerce , expending public funds to do so, and violate d federal law designed to protect veterans’ monum ents and Texas law to protect veterans’ and historic monuments. Defendant’s illegal expenditure of public f unds in violation of law gives P laintiffs’ 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 AirAPPELLANTS’ REPLY BRIEF Page 24 of 37 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, charg ed 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 at tempting 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 association al standing is appropriate here, because the purpose and interests o f 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 D efendant’s showing that his proposed test is applicable to the instant matter. The facts from Texas Associa tion of Business require the use of a standing analysis materially distinguishable from the facts in the instant
matter. SCV and D efendant have a real controversy as to theAPPELLANTS’ REPLY BRIEF Page 25 of 37 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 MON UMENTS CAN BE CONSTRUED TO PROVIDE THAT’S REMOVAL OF THE MON UMENTS 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 monum ent 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 con text 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 H umanist Association v.APPELLANTS’ REPLY BRIEF Page 26 of 37 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’ organiza tion 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 mo nument has been used to commemorate veterans ever since the dedication. Id. TheAPPELLANTS’ REPLY BRIEF Page 27 of 37 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 als o 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 C ourt 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 inscripti ons on the monument complex are not in the record. 3 The cita tion 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 al igned 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 monume nts 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 extende d the Mall by one mile to the Memorial. Indeed, the building of the LittlefieldAPPELLANTS’ REPLY BRIEF Page 28 of 37 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 im permissibly 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 Sum mum from a park with other monuments)

. T he veterans’ monuments at the University of Texas at Austin and their commemorative expression of veterans’ sacrific es can be identified under modified Van Orden and Lemon tests. These federal determinations of th e purpose and effect of veterans’ monuments would most likely construe the University’s removal of the veterans’ mo numents as violations of law that have conferred jurisdiction on the trial court

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

wa s 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 suchAPPELLANTS’ REPLY BRIEF Page 29 of 37 American or Texas veterans. The predominant purpose of a monument shall be deter mined 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 repor ts 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,APPELLANTS’ REPLY BRIEF Page 30 of 37 whether the monument expressly memorializes service m embers, whether the m onument is placed singly or in a complex with other monuments or structures as a whole and what the complex expresses, what uses the m onument

— 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 Wa r 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 esp ecially theAPPELLANTS’ REPLY BRIEF Page 31 of 37 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 additi on 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 ind ividual 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 Texa s veterans. (CR 210

- 12, 235). Inscriptions on the pedestals of the monuments expressly commemorate Jefferson Davis and Woodrow Wilson asAPPELLANTS’ REPLY BRIEF Page 32 of 37 commanders

- in

- chief of American Armies in the Civil War and World War I, respectively. (CR 176). Further inscripti ons 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 vie w 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 aAPPELLANTS’ REPLY BRIEF Page 33 of 37 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 commemora te individual veterans, (CR 179): Robe rt E. Lee, Commander of the Army of Northern Virginia; and General Albert Sidney Johnston, Commander of the Army of Tennessee

. The complex of monu ments on the University’s South Mall includes the buildings surrounding the statues and extends to the Texas C apitol. From the Texas Tower and UT Main Building, to th e 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 v eterans’ 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 free

standing sculpture in Texas, and the purpose of the UT

- Capitol

2 Most of the inscripti ons on the monument complex are not in the record.APPELLANTS’ REPLY BRIEF Page 34 of 37 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. T he removal or defacing of one of the monuments impairs the complete expr ession 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 f or

3 The cita tion 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 al igned 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 monume nts 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 extende d 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.APPELLANTS’ REPLY BRIEF 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 infor med, 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 Cou rt should find that the statues are protected under §§ 2066.501 and 2066.50 11 of the Texas Government Code. PRAYERS
1. Plaintiffs request that this Court reverse the trial court’s grant of the plea to the jurisdiction andAPPELLANTS’ REPLY BRIEF Page 36 of 37 remand for a trial on the merits;
2. Plaintiffs request t hat 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 D efe ndant violated the federal Veterans M emorial 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 D efendant to return the Davis and Wilson monum ent s back to their original pedestals at the University promptly; and,
5

. Plaintiff s ask that the Court award them reasonable attorney fees, costs of court , and such and further relief to which plaintiffs are justly entitled to.APPELLANTS’ REPLY BRIEF Page 37 of 37 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 ATTORNEY S FOR PLAINTIFFS Decembe r 2 8 , 2015

CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using Micros oft Word 2011 a nd contai ns 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: Dece mber 28 , 2015 CERTIFICA TE 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 78 711, by e

mail at adam.bitter @texasattorneygeneral.gov and the Court’s electr o nic filing system on December 28 , 2015. /s/ C.L. Ray ATTORNEY FOR PLAINTIFFS