Naylor v. Daly Respondants Response to Petition for Review - 09272011

8/13/2019 Naylor v. Daly Respondants Response to Petition for Review - 09272011

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No. 11-01143Jn ~ b e ~ u p r e m e ( Court o ~ e x s

The State ofTexas,Petitioner

vAngelique Naylor and Sabina Daly,

Respondents.On Petition for Review from the Third Court of Appeals at Austin, TexasCase No 03-10-00237-CV

Respondents Joint Responseto the State s Petition for Review

James J. Scheske SBN 17745443)Jason P Steed SBN 24070671)AKIN GUMP STRAUSS HAUER

FELD LLP300 West 6th St., Suite 1900Austin, Texas 78701Telephone: 512) 499-6200Facsimile: 512) 703-1112Email: [email protected]: [email protected]

COUNSEL FOR RESPONDENTANGELIQUE NAYLOR

Robert B Luther SBN 12704000)LAw OFFICES OF

ROBERT B LUTHER, P C1800 Rio GrandeAustin, Texas 78701Telephone: 512) 477-2323Facsimile: 512) 478-1824Email: [email protected]

COUNSEL FOR RESPONDENTSABINA DALY

FILEDIN THE SUPREME COF TEXAS11 June 27 P6:11BLAKE A HAWTHOCLERK


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Identity of arties and ounselPetitionerThe State ofTexas

ounsel for PetitionerJames D BlacklockAssistant Solicitor GeneralState Bar No. 24050296CleveW DotyAssistant Attorney GeneralState Bar No. 24069627OFFICE OF THE

ATTORNEY GENERALP.O. Box 12548 MC 059Austin, Texas 78711-2548Telephone: 512) 936-1700Facsimile: 512) 474-2697RespondentAngelique Naylor

ounsel for RespondentAppellate CounselJames J. Scheske SBN 17745443)Jason P Steed SBN 24070671)AKIN GUMP STRAUSS HAUER

FELD LLP300 West 6th St., Suite 1900Austin, Texas 78701Telephone: 512) 499-6200Facsimile: 512) 703-1112Email: [email protected]: js [email protected]

Trial CounselJennifer R. Cochran SBN 24065057LAw OFFICE OF

JENNIFER R. COCHRAN13062 Hwy. 290 West, Suite 201Austin, Texas 78737Telephone: 512) 615-3584Facsimile: 512) 236-5303Email: [email protected]

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RespondentSabina Daly

ounsel for RespondentRobert B Luther SBN 12704000LAw OFFICES OFROBERT B LUTHER, P C

1800 Rio GrandeAustin, Texas 78701Telephone: 512) 477-2323Facsimile: 512) 478-1824Email: [email protected]


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Table of ontentsIdentit)r of Parties and CounseL ....................................................................................... iiTable of Contents .............................................................................................................. .ivIndex ofAuthorities ........................................................................................................... vStatement of the Case ..................................................................................................... viiStatement ofJurisdiction .............................................................................................. viiiIssue Presented .................................................................................................................. xStatement of Facts ............................................................................................................. 2Summary of the Argument .............................................................................................. 6Argument ........................................................................................................................... 6I. Because neither the trial court nor the court of appeals considered ordecided the jurisdictional and constitutional issues presented in theState's petition, this Court lacks jurisdiction to review them ........................... 6II. Because the State lacks the power to intervene under established law,

and because the court of appeals properly applied that law to denyintervention, this Court should refuse the State's petit ion for review ............. 8A The State cannot intervene under Rule 6 ............................................. 9B The State cannot intervene under CPRC 37.006(b) ......................... 10C The State cannot intervene under the virtual representationdoctrine ..................................................................................................... 12

III. Because judicial restraint, equitable considerations, and separation ofpowers counsel against expanding the Executive Branch's power tointervene in civil judicial proceedings, the Court should refuse theState's petition for review ..................................................................................... 14Prayer ................................................................................................................................15Certificate ofService ........................................................................................................17Appendix ........................................................................................................................... 18

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Index of AuthoritiesPage s)

State Cases

Arteaga v. State,2005 WL 2012336 (Tex. App. San Antonio Aug. 24,2005, pet. ref d) ...................15City ofSan Benito v. Rio Grande Valley Gas Co.,109 S.W.3d 750 (Tex. 2003) ........................................................................................ 12Doe v. Carroll,2009 WL 1811002 (Tex. App. Austin June 23, 2009, no pet.) ................................... 9Gonzalez v. Avalos,907 S.W.2d 443 (Tex. 1995) .......................................................................................... 7In re Doe 2,

19 S.W.3d 278 (Tex. 2000) (Hecht, J., joined by J Abbott, dissenting) ..................... 14In rel.B.,No. DF-09-1074, 2009 WL 3316580 (302nd Dist. Ct., Dallas County, Tex.Oct. 1,2009) (trial order) ........................................................................................ 2, 3, 9In re Lumbermens Mut. Cas. Co.,184 S.W.3d 718 (Tex. 2006) .................................................................................. 12, 13In re Marriage of1.B. and H.B.,326 S.W.3d 654 (Tex. App. Dallas 2010, pet. filed ........................................passimIn re Union Carbide Corp.,273 S.W.3d 152 (Tex. 2008) .......................................................................................... 9Motor Vehicle Bd. of Tex. Dep t of Transp. v El Paso Indep. Auto Dealers Ass n,Inc.,1 S.W.3d 108 (Tex. 1999) .............................................................................. 12, 13Ojo v. Farmers Group, Inc.,--- S.W.3d ---, 2011 WL 2112778 (Tex. May 27, 2011) .............................................. 15Roberson v. Roberson,420 S.W.2d 495 (Tex. Civ. App. Houston [14th Dist.] 1967, ref. n.r.e.) .................. 14Southwestern Refining Co. Inc. v. Bernal,22 S.W.3d 425 (Tex. 2000) (Enoch, J., joined by c.J. Phillips and J Hankinson,dissenting) ..................................................................................................................... 14


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State v Naylor330 S.W.3d 434 (Tex. App.-Austin 2011, pet. filed) .......................................passim

Texas Mut. Ins Co v Ledbetter251 S.W.3d 31 (Tex. 2008) .................................................................................... 12, 13

Wilson v Andrews10 S.W.3d 663 (Tex. 1999) .................................................................................... 10,

State Statutes and ulesTex. Fam. Code 6.204 ................................................................................................. ix, 7Tex. Civ. Prae. Rem. Code Ann., 37.006 b) ......................................................passimTex. Gov t Code, 22.001(a) ...................................................................................... viii, 7Tex. R Civ.Proe. 60 ..............................................................................................6,8,9,10Tex. R App. Proe. 53.4 ........................................................................................................ 8

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Nature of he Case

Trial Court:

Trial Court sDisposition:

Parties inCourt ofAppeals:Court ofAppeals:

Court ofAppealsDisposition:

Statement of the aseAngelique Naylor and Sabina Daly were legallymarried in Massachusetts in 2004. CR92. In 2009Naylor petitioned for a divorce in Texas. CR91-102.The trial court granted the divorce February 10,2010. RR3:115. The State attempted to intervenethe next day, and later filed a plea to the jurisdiction.CR240, 270.126th District Court, Travis County,The Honorable Scott Jenkins presiding.On March 31,2010, the trial court found the divorcehad been granted February 10, 2010, and implicitlydenied the State s intervention as untimely. RR4:41-42, 68. The State s appeal followed. CR485.Appellant: State ofTexasAppellees: Angelique Naylor Sabina DalyThird Court ofAppeals, Austin. Before c.J. Jones, J.Puryear, and J. Henson.The Court ofAppeals (Henson, J.) held the Statecould not intervene and dismissed the appeal forlack of urisdiction. Statev Naylor, 330 S.W.3d 434Tex. App.-Austin 2011, pet. filed), attached as App.Tab 1. No motions for rehearing were filed.

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tatementof urisdictionThe Supreme Court lacks jurisdiction because none of the bases for

jurisdiction under section 22.001(a) of the Government Code apply.The court of appeals dismissed the State's appeal for lack of urisdiction.

State v Naylor SSO S.W.sd 4S4 444 Tex. App. Austin 2011, pet. filed), attachedas App. Tab 1 ( Op:'). s a result, the court of appeals declined to opine on theissues raised by the State's appeal. Op.441 442 ( we express no opinion on themerit of arguments regarding the construction or constitutionality of section 6.204of the Family Code), 442 n.6 ( we lack subject-matter jurisdiction to resolvewhether the trial court violated section 6.204 by granting the divorce), 444n.9 ( weexpress no opinion on the remaining issues raised by the State ). Thus, contrary tothe State's contentions, see Petition for Review at vi, this case does not involve theconstruction or validity of any Texas law, and the court of appeals' decision did otcreate a conflict among the courts of appeals regarding the trial court's ability tohear or grant a divorce. Furthermore, the court of appeals did ot err in applyingwell-established law governing third-party intervention in civil proceedings, nordoes its opinion conflict with any other Texas court regarding intervention. SeeSection II, below. Therefore, this Court lacks jurisdiction and should refuse theState's petition for review.

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ssue PresentedShould the Supreme Court create new law to provide that, when the State'sExecutive Branch determines a case involves matters of significant publicconcern;' or when it determines a statute's constitutionality is at issue-regardless ofwhether that statute's constitutionality has been directlychallenged - the Executive Branch may intervene as a third party in civiljudicial proceedings?

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No. 11 0114

1fn ijtbe ~ u p r m [ourt of ijtexasThe State ofTexas,

Petitionerv

Angelique Naylor and Sabina Daly,Respondents.

On Petition for Review from the Third Court ofAppeals at Austin, TexasCase No. 03-10-00237-CV

Respondents Joint Responseto the State s Petition for Review

o THE HONORABLE SUPREME COURT OF TEXASThe only question properly before the Court is whether it should create new

law to grant the State broad power to intervene in judicial proceedings. Because theState lacks power to intervene under established law and the court of appealsproperly denied intervention; because the State provides neither argument nor

authority for granting review to create new law; and because judicial restraint,equitable considerations, and the separation of powers counsel against expandingthe State s power to intervene in civil judicial proceedings, the Court should denythe State s petition for review.


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Statement of actsAngelique Naylor and Sabina Daly were legally married in Massachusetts on

September 27, 2004. CRISS, 148. They adopted a child together. CR92. But then,in mid-2007, they separated. CRISS. In mid-2009 they reached agreement over asuit affecting the parent-child relationship (SAPCR). CRS2. Then on December S2009, Naylor filed for divorce in Travis County District Court. CR9I. Dalycontested Naylor's property claims by raising the usual defenses to a divorceincluding a Motion to Dismiss and/or Motion to Declare Marriage Void in Texas:'challenging the validity of the marriage. CRI04-06.

The State's Attorney General's office was aware of he proceeding but did notattempt to intervene; instead it monitored the case for weeks as it proceeded.Petition for Review (PFR) at 5.

On February 9, 2010, the trial court held a hearing on pending motionsrelated to the SAPCR and property division. RR2:6-7. But first the court discussedDaly's motion to dismiss. RR2:I6-SI. The motion to dismiss asserted that the trialcourt lacked subject-matter jurisdiction because Texas did not recognize the validityofNaylor and Daly's marriage. CRI04-I05. The trial court noted this presented aunique legal issue but the court also noted a recent decision by another trial

court on the same issue. RR2:I6, 25 (referring to In reJ.B. No. DF-09-I074, 2009WL SSI6580 S02nd Dist. Ct., Dallas County, Tex. Oct. 1 2009) (trial order)(finding the trial court had jurisdiction to divorce parties legally married in another

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state). During a brief recess, the court took the opportunity to review the findingsoffact and conclusions of law filed in the J B case. RR2:2S 25. The trial courtthen worked out a briefing schedule on the jurisdictional issue. RR2:25-S1.

Moving on, the court heard arguments and evidence on the child custody andproperty division issues. RR2:SS-211. At one point Naylor s counsel said theproperty disputes were the primary source ofhostility between the couple. RR2:67.For its part, the trial court encouraged the couple repeatedly to resolve theirdisputes for the sake of their child. E.g. RR2:6S-64 81 88-89.

The next day-February 10, 2010-the hearing reconvened and the coupleannounced they had resolved a dispute relevant to the SAPCR. RRS:5-6. Laterthat morning they resolved another dispute, and indicated they were on the verge ofresolving everything. RRS:62-64.

The court was pleased-but this led to some discussion about the propertyissues, and the court wondered whether it could issue any orders pertaining toproperty before it had decided the jurisdictional question-because if it lackedjurisdiction over the divorce its orders might be void. RRS:69. Daly said hermotion to dismiss did not contend the trial court lacked jurisdiction, but contendedthe court should declare the marriage void. RRS:68 72. The court and Daly scounsel discussed this confusion over the motion to dismiss, and the court declaredit all a legal mess; RRS:68-72, and again encouraged the parties to work towardresolving their disputes. RRS:7S-74.

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The court heard more testimony-then before breaking for lunch, it chastisedthe couple for their accounting mess and described the couple's financial situationas a sticky wicket:' RR3:100. The court warned that things would only getstickier as the parties continued to pursue litigation and yet again the courtencouraged the parties to find a way to extricate themselves from the mess, byresolving their disputes. RR3:100.

When the court reconvened, Daly's counsel announced the couple had settledall disputes. RR3:101. The agreement was read into the record, RR3:102-114, andDaly's counsel asked the court to grant the divorce if it believed it had the power todo so. RR3:110,115. The court then granted the divorce.} RR3:115.

The State made no attempt to intervene before rendition-though itsrepresentative was present. PFR at 5-7. Instead, the State filed its petition inintervention the day after the divorce had been granted, CR240, and filed a plea tothe jurisdiction on February 23, 2010. CR270. Both Naylor and Daly opposed the

I The State claims things changed abruptly over lunch, and insinuates the parties conspiredwith the district court to hurriedly grant the divorce, upon learning the State's representativewas present. PFR at 6-7. But after the State made these same insinuations in the court ofappeals, one panel member openly disapproved of them as inappropriate during oralargument. And in its opinion, the court of appeals went out of its way to note that the State'ssuggestion of impropriety on the part of the trial court was) unsupported by the record. Op.

437 n.l. Yet here, the State not only repeats its insinuations, it even claims Daly's counseladmitted at oral argument ... that the parties asked the district court to abruptly short-circuitthe litigation upon learning that the Attorney General's office was monitoring the case. PFRat3. This is an outright fabrication-Daly 's counsel said no such thing. The recorddemonstrates the couple, at the court's urging, was working steadily toward resolving theirdisputes throughout the two-day hearing.


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intervention. CR251, 356. Naylor also opposed the plea to the jurisdiction.CR364.

On March 31, 2010 the trial court heard arguments on the State's ability tointervene, RR4:20-67 and expressed concern about the State's effort to interfere ina settled divorce, particularly where a child was involved-even pleading with theState to reconsider its actions and to simply leave these parties alone:' RR4:68-70.

The court then implicitly denied the State's intervention, finding it hadrendered judgment on February 10 2010 RR4:68 and indicating it thereforecould refuse the intervention as untimely. RR4:41-42. The court consequentlydeclined to hear the State's plea to the jurisdiction, telling the State that-ifit couldrightfully intervene pos1judgment under the virtual representation doctrine, asthe State contended-it could raise its jurisdictional arguments on appeal.RR4:27-28. The trial court then signed the final judgment, RR4:70 and theState's appeal followed. CR485.

The court of appeals never reached the State's statutory and constitutionalarguments, because it held the State could not intervene; therefore, the State lackedstanding and the appeal was dismissed for lack of urisdiction. Op. 444. The Statethen filed its petition for review.

2 The State says the court of appeals affirmed the divorce, ''holding ... that a same-sex divorcemight be permissible in Texas court. PFR at 8. This is at odds with the court of appeals'opinion and holding. Op. 44 n.6 ( we lack subject-matter jurisdiction to resolve whether thetrial court should have granted the divorce).

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Summary of the ArgumentThis case is not about statutory construction or the constitutionality of any

Texas law. This case is about the State's power to intervene in a divorce proceeding.And under well-established law governing third-party intervention in civilproceedings, there are only three bases for intervention: Rule 60,CPRC 37.006(b), and the virtual representation doctrine. None of theseprovides a basis for the State's intervention in this divorce regardless of its timing.Therefore, the only possible question before this Court is whether it should createnew law granting the State's Executive Branch special power to intervene in civiljudicial proceedings based on the State's assertion that the case involves mattersofsignificant public concern;' or that a statute's constitutionality is at issue.

The State provides no argument or authority supporting review to create newlaw. Moreover, judicial restraint, equitable considerations, and separation ofpowers counsel against granting the Executive Branch broad new power tointervene in civil judicial proceedings. The Court should affirm established lawgoverning third-party intervention and because the court of appeals properlyapplied that law, the Court should refuse the State's petition for review.

ArgumentI Because neither the trial court nor the court of appeals considered or decidedthe jurisdictional and constitutional issues presented in the State s petition,

this Court lacks jurisdiction to review themAs the State concedes, the trial court did not hear the State's plea to the

jurisdiction raising statutory-construction and consti tutional issues. PFR at 7 And6


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the district court's judgment does not address those issues. CR404 et seq Likewise,the court of appeals expressly refrained from opining on these issues, having foundthe State lacked standing to raise them on appeal. Op. 441-442 ( we express noopinion on the merit of arguments regarding the construction or constitutionalityofsection 6.204 of the Family Code), 442 n.6 ( we lack subject-matter jurisdictionto resolve whether the trial court should have granted the divorce), 444n.9 ( weexpress no opinion on the remaining issues raised by the State ).

Further, the Third Court ofAppeals' decision did not conflict with the FifthCourt ofAppeals' decision. The Third Court did not substantively address theconstruction or constitutionality of section 6.204 of the Family Code (whichprohibits same-sex marriages in this state), but instead dismissed the State's appeal,holding the State could not intervene. Op. 444. In contrast, the Fifth Court did notsubstantively address the State's right to intervene, and consequently reached thestatutory-construction and consti tutional issues. In re Marriage ofJ.B. andHB.326 S.W.3d 654 660 681 Tex. App.-Dallas 2010, pet. filed). These two opinionstherefore present no conflict for the purposes of this Court's jurisdiction. Gonzalezv.Avalos 907 S.W.2d 443 444 (Tex. 1995) (per curiam) (decisions are in conflict,for purposes of his Court's jurisdiction, only when, if issued by the same court, thelater decision would overrule the earlier decision).

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Given the above, this case does not properly present jurisdictional orconstitutional questions, contr PFR at vii (questions 2 and 3), and this Court hasno jurisdiction to review them. See TEX. GoV T CODE 22.001(a).

Finally, because the court of appeals did not err in its application ofestablished law governing third-party intervention, see below the only possible issuepresented is whether the Supreme Court should create new law granting the Statepower to intervene in this divorce proceeding. f he Court does grant review tocreate new power for the State to intervene, then pursuant to Texas Rule ofAppellate Procedure 53.4, it should remand to the court of appeals forconsideration of the jurisdictional and constitutional issues left undecided.II Because the State lacks the power to intervene under established law, andbecause the court of appeals properly applied that law to deny intervention,this Court should refuse the State s petition for review.

There are only three established bases for third-party intervention in civiljudicial proceedings: A) Texas Rule of Civil Procedure 60; (B) Civil Practice andRemedies Code (CPRC) 37.006(b); and (C) the judicially-created virtualrepresentation doctrine. The State is elusive about which of these bases it reliesupon to intervene in Naylor and Daly's divorce. Rather than explain the legal basisfor its intervention, the State focuses primarily on timeliness repeatedlymisconstruing the court of appeals' decision as dismissing the State's appeal merelybecause the State intervened one day after final judgment was rendered:' E.g., PFRat v 3, 8. By focusing on timing, the State hopes to characterize the court of

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appeals' decision as denying intervention on a procedural technicality-which isironic, given the circumstances of the State's intervention in the J B case.3

The State was too late to intervene in the trial court, but this is of secondaryconcern. Under established law, the State lacks the power to intervene at any time.

A The State cannot intervene under Rule 60Rule 60 states: ''Any party may intervene by filing a pleading, subject to being

stricken out by the court for sufficient cause on the motion of any party:' However,the Supreme Court has required the would-be intervenor to have a 'Justiciableinterest in the proceeding-stating this requirement is ofparamount importance:'In re Union Carbide Corp. 273 S.W.3d 152, 154-155 Tex. 2008). The ''justiciableinterest requirement defines the category of non-parties who may ... interject theirinterests into a pending suit to which the intervenors have not been invited:' Id.at155. To show a justiciable interest, the would-be intervenor must show it couldhave brought the pending action, or any part thereof, in its) own name:' Id.(internal citations and quotations omitted); see also Doe v Carroll 2009 WL1811002, at *4-*5 (Tex. App.-Austin June 23 2009 no pet.) (affirming denial ofintervention in a divorce action, for lack of usticiable interest).

3 The J.B. case is currently before this Court on petition for review. In the Matter of he MarriageofJ.B. and HE , No. 11-0024. It does not raise the intervention issue because, in J.B. thedistrict court struck the State's intervention sua sponte and the court of appeals grantedmandamus reliefon the ground that this was an abuse of discretion because Rule 60 requiredthe intervention to be challenged by a motion of any party. J.E. 326 S.W.3d at 660-662.Thus the State was permitted to intervene on a procedural technicality, without any discussionof whether it had the power to intervene in the first place.

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The State cannot contend it could have brought any part ofNaylor and Daly'sdivorce proceeding in its own name. Therefore, the State had no power to interveneunder Rule 60, even if its attempted intervention was timely.

B The tate cannot intervene under CPRC 37.006(b).Chapter 37 of the CPRC governs declaratory judgments, and section

37.006(b) states: In any proceeding that involves the validity of a municipalordinance or franchise, the municipality must be made a party and is entitled to beheard, and if the statute, ordinance, or franchise is alleged to be unconstitutional,the attorney general of he state must also be served with a copy of the proceedingand is entitled to be heard:' TEx. CIV. PRAC. REM. CODE ANN., 37.006(b),attached as App. Tab 2.

A divorce proceeding is not an action for declaratory judgment and neitherNaylor nor Daly sought a declaratory judgment in this case. In her petition fordivorce, Naylor never alleged any Texas law was unconstitutional. CRI32-147. Andin granting the divorce, the trial court made no consti tutional ruling. CR404 t seqIn short, section 37.006(b) simply does not apply.

Grasping nonetheless for power to intervene, the State attempts to bootstrapsection 37.006(b) to its argument for intervention-not by citing section 37.006(b)directly, but by citing Wilson v Andrews 10 S.W.3d 663 Tex. 1999), to support itsclaim that the State has a sweeping right to intervene to defend Texas law againstconstitutional attack:' PFR at 10. But Wilson (1) involves a declaratory-judgment

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action to which section 37.006(b) applies, and 2) does not actually involve aholding regarding the State's right to intervene, which was not at issue. 10 S.W.3dat 665-666, 670-671. In sum, the State offers no authority for the power tointervene in a divorce proceeding to defend Texas law against constitutionalattack -because there is none.

Further, even if the State did have this broad power, it remains that noconstitutional attack existed in this case. The State claims Naylor levied

constitutional attacks on Texas laws in the only pleading at the trial courtexplaining the legal basis for her divorce claim:' PFR at 11 (citing CR364-378).But this is misleading and circular. The pleading the State refers to is Naylor'sresponse to the State's plea to the jurisdiction-meaning the State argues it has theright to intervene based on constitutional attacks that Naylor made only inresponse to the State's intervention.

Finally, the State claims repeatedly that Naylor and Daly-and the districtcourt-collectively orchestrated proceedings to shield or insulate this divorcefrom appellate review, necessitating the State's intervention. PFR at 1 3-4, 10, 13-14. But the court's decision is no more shielded from appellate review than anyother district court decision. The only shield the State faces is the law, whichrestricts the pool of third parties who can intervene in a civil proceeding.4

4 Notably, the State also fails to explain why appellate review s necessary. The trial court'sdecision to grant a divorce to a same-sex couple legally married in Massachusetts establishes nolegal precedent or binding authority.

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The State simply does not have the broad power it seeks, to intervene in anycivil proceeding to defend against constitutional attack ; rather, it has only limitedpower to do so under section 37.006(b). Because section 37.006(b) does not applyto this divorce proceeding, the State cannot intervene under section 37.006(b).

C. The tate cannot intervene under the virtual representation doctrine.The virtual representation doctrine is a judicially-created exception to the

rule that appeal is available only to parties of record. In re LumbermensMut. Cas.Co. 184 S.W.3d 718, 722 Tex. 2006 ; Op. 439. In effect, the doctrine provides anexception to the general rule against postjudgment intervention - but concernsabout timeliness are secondary; the doctrine primarily concerns who qualifies as aparty to the action. Op. 439 n.4 (citing Lumbermens, 184 S.W.3d at 722; TexasMut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008)).

To appeal under the virtual-representation doctrine, the intervenor must show1) it is bound by the judgment, (2) its privity of estate, title, or interest appears

from the record, and (3) there is an identity of interest between the intervenor and anamed party to the judgment. Motor Vehicle Bd. ofTex. Dep't ofTransp. v. ElPasoIndep. uto DealersAss'n, Inc. ( El Paso ), 1 S.W.3d 108, no (Tex. 1999) (percuriam), attached as App. Tab 3; Op. 439. Consistent with the doctrine's primaryconcern with who qualifies as a party to the action, the first requirement-that theintervenor be bound by the judgment-is the most important consideration. CityofSan Benito v. Rio Grande Valley Gas Co. 109 S.W.3d 750, 755 (Tex. 2003 .

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Moreover, even if all three of these requirements are met, the intervention is not amatter of right; the doctrine is equitable, and intervention may be denied if it wouldcreate unnecessary delay or prejudice to the existing parties:' Ledbetter 251 S.W.3dat 36; Lumbermens 184 S.W.3d at 725; Gp. 439.

Here, as the court of appeals demonstrated, the virtual-representationdoctrine simply does not apply. Gp. 439 443. Most obviously, the State cannotcontend that it satisfies the most important requirement that it is bound by thedivorce judgment it seeks to appeal. The trial court's divorce decree binds no onebut Angelique Naylor and Sabina Daly, and the State cannot contend otherwise. Infact, the State does not contend otherwise, and instead attempts to avoid thisrequirement by misrepresenting l Paso.

The State claims this Court permitted the State to intervene in l Paso eventhough the State was not technically bound by the trial court's judgment. PFRatl2. Then the State claims lPaso demonstrates this Court's willingness todepart from the general rule against postjudgment intervention in order toensure ... that the State has the opportunity to defend its laws:' Id But in l Pasothis Court expressly agreed with the court of appeals that the State was bound bythe trial court's judgment. 1 S.W.3d at no; Gp. 440 n.5. Moreover, in lPaso theState was entitled to defend its laws because the case involved an action fordeclaratory judgment and a direct challenge to the validity of a statute triggeringsection 37.006(b). Id. The State ignores this distinction.

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The court of appeals correctly determined the State could not rely on thevirtual-representation doctrine to intervene. Op.439-443. Thus, there is no basisunder established law for the State's intervention, regardless of its timing. TheCourt therefore should refuse or deny the State's petition for review.III. Because judicial restraint, equitable considerations, and separation of powers

counsel against expanding the Executive Branch s power to intervene n civiljudicial proceedings, the Court should refuse the State s petition for review.Judicial restraint counsels this Court to apply established law and affirm the

denial of the State's intervention, by refusing the State's petition for review. SeeSouthwestern Rifining Co. Inc. v. Bernal 22 S.W.3d 425, 441 (Tex. 2000 (Enoch,J., joined by c.J. Phillips and J. Hankinson, dissenting) ( frustration at not beingable to reach the merits of every important case is not sufficient reason to fail toexercise judicial restraint ); n re Doe 2, 19 S.W.3d 278, 295 (Tex. 2000 (Hecht, J.,joined by J. Abbott, dissenting) (judicial restraint means this Court should notundo lower court decisions just because it would like to see a different result ).

Furthermore, courts have always guarded against third-party intervention indivorce actions, on equitable grounds. See e.g. Roberson v. Roberson 420 S.W.2d495,499 (Tex. Civ App.-Houston (14th Dist.) 1967, ref. n.r.e.) (upholdingdismissal of intervention by putative first wife in divorce case between man andsecond wife, because, We believe that interminable trouble, confusion and delaywould have resulted by the intervention:'). And as the court ofappeals noted,equitable considerations weigh against permitting the State to intervene in this case.

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Op.443. Naylor and Daly were able to settle numerous complex property disputes,as well as disputes related to child custody and parenting issues, and the trial court'sdivorce decree brought an end to these protracted personal matters. See i ;Statement of Facts, above. To grant the State new power to intervene, to pursue itsabstract interests, would disrupt the actual lives ofNaylor, Daly, and their child.Op.443; see also Qjo v Farmers Group Inc. --- S.W.3d ---,2011 WL 2112778, at*13 and n.8 Tex. May 27,2011) (Jefferson, C.J., concurring) (the Court should bemindful that its judgments carry with them a threat of state authority;' arecoercive;' and signal ... the imposition ofviolence upon others;' insomuch as

judicial acts result in somebody los (ing) his freedom, his property, his children ... :').Finally, where the Executive Branch believes a different outcome is warranted

in a judicial proceeding that binds private citizens, it should take its argument tothe Legislature-the Judiciary has no duty to promulgate new law at the Executive'sbehest. Arteaga v State 2005 WL 2012336, at *2 Tex. App.-San Antonio Aug.24 2005 pet. ref'd). Separation of powers counsels strongly against granting theExecutive broad new power to challenge judicial decisions.

rayerFor these reasons and in the interest of ustice, the Court should reject the

State's pursuit of new law and refuse the State's petition for review.

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Respectfully submitted,AKIN GUMP STRAUSS HAUER

FELDLLP300 W 6th Street, Suite 1900Austin, Texas 78701Telephone: 512) 499-6200Facsimile: 512) 499-6290Email: [email protected]: [email protected]

By: James J. ScheskeState Bar No. 17745443Jason P SteedState Bar No. 24070671

COUNSEL FOR RESPONDENTANGELIQUE NAYLOR

Robert B LutherState Bar No. 12704000LAw OFFICES OF ROBERT B LUTHER P.C.1800 Rio GrandeAustin, Texas 78701Telephone: 512) 477-2323Facsimile: 512) 478-1824Email: [email protected] FOR RESPONDENTSABINA DALY

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ertificate of ServiceI hereby certifY that a true and correct copy of the foregoing Respondents

Joint Response to the State s Petitionfor Review was forwarded to counsel ofrecord by email and certified mail, return receipt requested, on this 27th day ofJune, 2011.

James D. BlacklockOFFICE OF THE

ATTORNEY GENERALP.O. Box 12548 MC 059Austin, Texas 78711-2548Counselfor PetitionerState ofTexasJennifer R. CochranL w OFFICE OF

JENNIFER R. COCHRAN13062 Hwy 290 West, Suite 201Austin, Texas 78737Trial Counselfor RespondentAngelique Naylor

Robert B. LutherL w OFFICES OF

ROBERT B. LUTHER, P.C.1800 Rio GrandeAustin, Texas 78701Counselfor RespondentSabina Daly

lsiJames J. Scheske

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No. 11-0114

Jn ~ e ~ u p r e m e rourt of ~ e x l lThe State ofTexas,

Petitioner,v.

Angelique Naylor and Sabina Daly,Respondents

On Petition for Review from the Third Court ofAppeals at Austin, TexasCase No. 03-10-00237-CV

Appendixto Respondents Joint Responseto the State s Petition for Review

Tab 1: State v Naylor, 330 S.W.3d 434 Tex. App.-Austin 20n pet. filed)Tab 2: TEx. CIV. PRAC. REM. CODE ANN. 37.006 b)Tab 3 ElPaso Indep. Auto Dealers Ass'n, Inc. ( EI Paso ), 1 S.W.3d 108, no Tex.1999)

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TAB 1


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Page 1330 S.W.3d 434(Citeas:330S.W.3d434)

Court of Appeals of Texas,Austin.STATE of Texas, Appellant,

v.Angelique S. NAYLOR and Sabina Daly, Ap-

pellees.

No. 031000237CV.Jan. 7, 2011.

Background: Same-sex couple who had marriedunder Massachusetts law instituted divorce pro-ceedings. The 126th Judicial District Court, TravisCounty, Scott H. Jenkins, J., entered final divorce

decree. State appealed as purported intervenor.

Holdings:The Court of Appeals, Diane M. Henson, J., held that:(1) State's attempt at intervention in proceeding wasuntimely;(2) State was not bound by judgment and thus wasnot virtually represented;(3) State further did not have privity of interest andthus was not virtually represented;(4) there was no identity of interest between Stateand any named party to divorce judgment, as wouldallow State to be virtually represented; and(5) even if State were a deemed party by virtual

representation, equitable considerations weighedagainst allowing State to appeal.

Affirmed.

West Headnotes

[1]AppealandError30 148

30 Appeal and Error30IV Right of Review

30IV(A) Persons Entitled30k148 k. Persons other than parties or

privies. Most Cited Cases

Generally, an appeal is available only to parties

of record, so that non-parties who have not properly

intervened in the trial court lack standing to pursuean appeal of the trial court's judgment.

[2]Parties287 42

287 Parties287IV New Parties and Change of Parties

287k37 Intervention287k42 k. Time for intervention. Most

CitedCasesWhile state rules of civil procedure do not im-

pose a deadline for intervention, the general rule isthat a party may not intervene after final judgmentunless the judgment is set aside. Vernon's

Ann.TexasRulesCiv.Proc.,Rule60.

[3]Divorce134 73

134 Divorce134IV Proceedings

134IV(D) Parties134k73 k. Intervention. Most Cited Cases

Divorce134 178


134IV(O) Appeal

134k178 k. Right of review. Most CitedCases

State's attempt at intervention in divorce pro-ceeding of same-sex couple, who had married underMassachusetts law, was untimely, as would resultin State lacking standing to pursue appeal of di-vorce judgment, even if State intervened beforewritten judgment was rendered, where State at-tempted to intervene after trial court's judgment hadbeen orally rendered in open court. Vernon'sAnn.TexasRulesCiv.Proc.,Rule60.



2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2 of 12

6/14/2011http://web2.westlaw.com/print/printstream.aspx?mt=99&prft=HTMLE&vr=2.0&destinatio...


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privies. Most Cited CasesUntimeliness of party's intervention does not

bar that party's appeal if it has standing under thevirtual-representation doctrine, an exception tothe rule that appeal is available only to parties ofrecord.




privies. Most Cited CasesIn order to claim virtual representation, so as to

give standing for an appeal, an appellant must showthat: (1) it is bound by the judgment; (2) its privityof estate, title, or interest appears from the record;and (3) there is an identity of interest between theappellant and a named party to the judgment.


30 Appeal and Error30VI Parties

30k329 k. Intervention or addition of newparties. Most Cited Cases

Even if all requirements for virtual representa-tion are met, a party need not be permitted to inter-

vene if the intervention would create unnecessarydelay or prejudice to the existing parties.

[7]Divorce134 178


134IV(O) Appeal134k178 k. Right of review. Most Cited

CasesState was not bound by judgment and thus was

not virtually represented in divorce proceedingsbetween same-sex couple, who had married underMassachusetts law, as would give State standing to

appeal divorce judgment despite the untimeliness of

its intervention in case; case was not a suit to de-clare a statute unconstitutional or enjoin its enforce-ment, but a private divorce proceeding involving is-sues of property division and child custody, neitherof the named parties raised any constitutional chal-lenge to any state statute or mounted any defense ofthe constitutionality of any state statute, and peti-tion for divorce was not implied constitutional chal-lenge to state statute providing that state could notgive effect to right asserted as result of same-sexmarriage, and trial court could grant divorcewithout finding statute unconstitutional. V.T.C.A.,FamilyCode6.204(c).

[8]Divorce134 178

134 Divorce

134IV Proceedings134IV(O) Appeal134k178 k. Right of review. Most Cited

CasesState did not have privity of interest and thus

was not virtually represented in divorce proceed-ings between same-sex couple, who had marriedunder Massachusetts law, as would give Statestanding to appeal divorce judgment; fact that trialcourt's actions were allegedly taken in violation ofstate statute did not mean that trial court invalidatedstatute. V.T.C.A., Family Code 6.204(c).

[9]Divorce134 178



CasesThere was no identity of interest between State

and any named party to divorce judgment, and thusState was not virtually represented in divorce pro-ceedings between same-sex couple, who had mar-ried under Massachusetts law, as would give Statestanding to appeal divorce judgment, where divorcedefendant, upon whom State claimed it relied toprotect its interests, did not defend validity of any

state statute but instead only sought to declare her


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marriage void under family code or sought tempor-ary orders governing parties' property division andordering payment of interim attorney's fees.

[10]Divorce134 178



CasesEven if State was a deemed party under the vir-

tual-representation doctrine, equitable considera-tions weighed against allowing State to appealagreed divorce judgment of same-sex couple, whohad married under Massachusetts law; parties wereable to settle protracted and complex property dis-

pute by entering into agreed judgment, partiesagreed to a child custody order which would allowchild's custody situation to become settled, andState was not prejudiced in any way by being un-able to intervene on appeal.

*435 James D. Blacklock, Office of the AttorneyGeneral, Austin, TX, for State of Texas.

James J. Scheske, Akin, Gump, Strauss, Hauer &Feld, LLP, Robert B. Luther, Law Offices of RobertB. Luther, P.C., Austin, TX, for Angelique S.Naylor and Sabina Daly.

Before Chief Justice JONES, Justices PURYEARand HENSON.

OPINIONDIANEM.HENSON, Justice.

The State appeals from the final divorce decreeof appellees Angelique Naylor and Sabina Daly, as-serting that section 6.204 of the family code de-prives the trial court of subject-matter jurisdictionover the appellees' divorce. See Tex. Fam.CodeAnn. 6.204(c) (West 2006) (prohibiting stateagency or political subdivision from giving effect

to right or claim to any legal protection,*436 be-nefit, or responsibility asserted as a result of same-

sex marriage). Because the State is not a party ofrecord and lacks standing to appeal, we dismiss thisappeal for want of jurisdiction.

BACKGROUNDNaylor and Daly were married under Mas-

sachusetts law on September 27, 2004. Naylor andDaly then returned to their home in Texas, wherethey adopted a child, J.D., and started a real estatebusiness together. The couple later separated, andin January 2009, Naylor filed a suit affecting theparent-child relationship (SAPCR) in TravisCounty district court, requesting that she and Dalybe named joint managing conservators of J.D. andthat she be given the exclusive right to designateJ.D.'s primary residence. The parties later settledthe SAPCR, and an agreed order was issued. On

December 3, 2009, Naylor filed a pro se petition fordivorce in the same cause number as the SAPCR,later amending her petition to add, among otherthings, a request for modification of the parent-child relationship. In response, Daly moved to de-clare the marriage void under family code section6.204. See id. 6.204(b) (West 2006) (marriagebetween persons of same sex is void in Texas); seealso id. 6.307 (West 2006) (providing that eitherparty to void marriage may sue to have the mar-riage declared void). In the alternative, Daly re-quested temporary orders under the family codegoverning the use of the parties' property and order-ing payment of interim attorney's fees. See id.

6.502 (West 2006). The trial court then granted acontinuance to allow Naylor to obtain counsel, andissued temporary orders related to the parties' prop-erty. Daly subsequently filed a motion to compeland for sanctions, asserting that Naylor had failedto comply with the temporary orders.

On February 9, 2010, the trial court held ahearing on a number of the parties' pending motionsrelated to both the motion to modify the parent-child relationship and the property division. The tri-al court repeatedly urged the parties to settle asmany issues related to the parent-child relationshipas possible, emphasizing that it was in the best in-


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terest of the child to minimize litigation in that re-gard. The trial court heard evidence on both thechild custody and property division issues, includ-ing evidence suggesting that due to the parties' realestate business, the division of property would be acomplex process involving multiple corporate entit-ies, a large amount of real property, various credit-ors, and possibly inadequate accounting. The testi-mony revealed that the parties had accumulatedtwelve properties in the course of their business en-terprise, in part by borrowing money from familyand friends, and that many of these properties werein or near foreclosure. On this basis, Daly soughttemporary orders that would allow her to sell cer-tain properties, which would then free up funds tohelp pay creditors.

The hearing was continued to the next day, atwhich time the trial court questioned whether itcould issue temporary orders if it lacked subject-matter jurisdiction over the parties' divorce. Afternoting that final resolution of the property divisionwould be substantially delayed by any litigation re-garding the validity of the marriage, the trial courtagain encouraged the parties to settle, stating:

We have, in summary, a legal mess. And we havetwo people who have decided, decided, not to dogood accounting.... So we have an incrediblycomplex legal problem. We have an incrediblycomplex factual problem with ... poor accounting.

And we have a situation where we have two *437people who, if I've ever seen it, have an incentiveto try to resolve this.

The trial court then heard additional testimonyrelevant to the division of property, as well as testi-mony by Daly's counsel that due to the complexityof the property division and the potential for litiga-tion regarding the validity of the marriage, interimattorney's fees and costs in the amount of $50,000would be necessary to continue the case through fi-nal trial, with another $12,000 in interim fees forthe SAPCR. The trial court then repeated its earlierconcerns about the parties' property division:

We're going to break now and resume with you at2:00 to give you maximum opportunity to resolvesome issues.... [S]o far, I don't understand youraccounting. I don't understand how you ran thesebusinesses. I don't understand how you possiblydid tax returns. I don't understand how a CPAcould sign a tax return when there's no document-ation on loans. I'm really curious about all that.And quite frankly, that can take you into someother sticky wickets.... I don't know where this isall headed.... And it's only going to get stickier asyou continue down this path, which you canchoose to do, or you can find a way to extricateyourself. I wish you good luck with that, and Iwill see you at 2:00.

The parties subsequently came back on the re-

cord and announced that they had reached a settle-ment of all issues in the case.FN1 The parties'agreement was then read into the record, and thetrial court stated, The divorce is granted pursuantto the agreement you have recited into the record,and the division of your estate as set forth by yourattorneys is approved as a just and right division ofyour estate. The hearing then concluded. At thattime, the State had not yet attempted to intervene inthe case, and no party had presented any argumentsor filed any pleadings challenging or defending theconstitutionality of any provision of the Texas Fam-ily Code.

FN1. While the State claims that theparties and the trial court abruptly and un-expectedly changed course upon learningthat a representative of the attorney gener-al's office was in attendance, abandoningadversarial jurisdictional arguments in fa-vor of a hurriedly prepared settlementagreement, this suggestion of improprietyon the part of the trial court is unsupportedby the record. Rather, the record reflectsthat the trial court consistently urged theparties to settle their differences over thecourse of the two-day hearing, citing thebest interest of J.D. and, secondarily, con-


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cerns regarding the property division andthe parties' accounting practices. In addi-tion, while the trial court raised the juris-dictional issue at the hearing, neither Dalynor Naylor made any substantive argumentregarding the trial court's subject-matterjurisdiction to grant a divorce.

The next day, February 11, 2010, the Statefiled a petition in intervention, arguing that the trialcourt lacked jurisdiction to grant the divorce be-cause Naylor and Daly were of the same sex. TheState further asserted that the sole vehicle for dis-solving the parties' Massachusetts marriage was anaction for voidance under section 6.307 of the fam-ily code. Id.6.307. Both Daly and Naylor filed re-sponses seeking to strike the State's petition in in-

tervention.FN2

The State also filed *438 a plea tothe jurisdiction, reiterating the arguments made inits petition in intervention and seeking to have thesuit dismissed for lack of subject-matter jurisdic-tion.

FN2. Specifically, Daly filed anobjection to the intervention, taking theposition that the motion-to-strike proced-ure described in Texas Rule of Civil Pro-cedure 60 was inapplicable because theState's attempt at intervention was un-timely. See Central Mut. Ins. Co. v.Dunker, 799 S.W.2d 334, 336

(Tex.App.-Houston [14th Dist.] 1990, writdenied) (holding that rule governing mo-tion-to-strike procedure does not apply tointerventions attempted after rendition ofjudgment (citing Tex.R. Civ. P. 60 (Anyparty may intervene by filing a pleading,subject to being stricken out by the courtfor sufficient cause on the motion of anyparty.))). Naylor, on the other hand,raised her arguments in opposition to theintervention in a motion to strike.

On March 31, 2010, the trial court held a hear-ing on Daly's motion for entry of final judgment. At

the outset of the hearing, the trial court clarified

that the hearing would be limited to Daly's motionfor entry of final judgment and the timeliness of theState's intervention, as the parties had not properlyset any other matter on the court's docket. After ob-serving that a trial court can simply not considerthe intervention because it's not timely, and thatthe State could arguably reassert its late-in-tervention arguments on appeal, the trial courtsigned the written divorce decree without expresslyruling on the State's petition in intervention or pleato the jurisdiction. The State then filed its notice ofappeal.

DISCUSSIONBecause the State's standing to intervene in this

case after rendition of judgment implicates thisCourt's subject-matter jurisdiction, we will first ad-

dress the timeliness of the intervention. See M.D.Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704,708 (Tex.2001) (Standing is a prerequisite to sub-ect-matter jurisdiction, and subject-matter jurisdic-

tion is essential to a court's power to decide a case.).

[1] Generally, an appeal is available only toparties of record, so that non-parties who have notproperly intervened in the trial court lack standingto pursue an appeal of the trial court's judgment.See Gunn v. Cavanaugh, 391 S.W.2d 723, 724(Tex.1965) (stating that remedy by appeal isavailable only to parties of record); Gorev.Peck,191 S.W.3d 927, 92829 (Tex.App.-Dallas 2006,

no pet.) (dismissing appeal for lack of standing be-cause appellant failed to timely intervene); seealsoMarino v.Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586,98 L.Ed.2d 629 (1988) (per curiam) (The rule thatonly parties to a lawsuit, or those that properly be-come parties, may appeal an adverse judgment, iswell settled.).

[2][3] While the Texas Rules of Civil Proced-ure do not impose a deadline for intervention, seeTex.R. Civ. P. 60, the general rule is that a partymay not intervene after final judgment unless theudgment is set aside. See Texas Mut. Ins. Co. v.

Ledbetter, 251 S.W.3d 31, 36 (Tex.2008); First


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Alief Bank v. White, 682 S.W.2d 251, 252(Tex.1984) ([A] plea in intervention comes toolate if filed after judgment and may not be con-sidered unless and until the judgment has been setaside.). The State's petition in intervention in thiscase was filed on February 11, one day after the tri-al court rendered judgment in open court. SeeDunnv. Dunn, 439 S.W.2d 830, 83133 (Tex.1969)(holding that oral rendition of divorce constitutedfinal judgment, despite fact that written judgmenthad not yet been signed); Giles v. Giles, 830S.W.2d 232, 237 (Tex.App.-Fort Worth 1992, nowrit) (holding that judgment was rendered when tri-al court orally granted divorce in open court); seealso S &ARestaurant Corp. v.Leal, 892 S.W.2d855, 857 (Tex.1995) ( Judgment is rendered whenthe trial court officially announces its decision in

open court or by written memorandum filed withthe clerk.); Greene v. State, 324 S.W.3d 276, 282(Tex.App.-Austin 2010, no pet.) (same).FN3 Be-cause the *439 State's attempt at intervention oc-curred after rendition of final judgment, it was un-timely. SeeLedbetter,251S.W.3dat36.

FN3. While the State contends that it isnot clear that the district court rendered afinal judgment at the February 10 hearing,the trial court made an express finding onthe record at the March 31 hearing onDaly's motion for entry of judgment that[t]he divorce was granted on February

10th. We give deference to a trial court'sdetermination regarding whether it previ-ously rendered judgment. SeeIn reDicker-son, 259 S.W.3d 299, 301(Tex.App.-Beaumont 2008, pet. denied).The State also argues that the oral grantingof the divorce was not final because boththe parties and the court contemplated thepreparation of a written order that wouldbe more detailed than what was recited in-to the record. We disagree. First, theparties agreed on the record at the Febru-ary 10 hearing that their settlement agree-ment constituted a full and complete set-

tlement of all disputed issues. Neither theparties nor the court indicated that addi-tional claims were left to be resolved bythe subsequent written form of judgment.Second, the written form of judgment didnot resolve any additional issues betweenthe parties, but merely specified eachparty's separate property in detail, as op-posed to the oral settlement agreement,which provided that each party owns theirsole and separate property that is either intheir name title or in their sole and separatepossession.

[4] The untimeliness of the State's intervention,however, does not bar the State's appeal if it hasstanding under the virtual-representation doc-

trine, an exception to the rule that appeal is avail-able only to parties of record. See In re Lumber-mens Mut. Cas. Co., 184 S.W.3d 718, 722(Tex.2006) (Because one who is virtually repres-ented is already deemed to be a party, theoreticallyit is not required to intervene in order to appeal.(citation and internal quotation marks omitted)); seealso Wojcik v. Wesolick, 97 S.W.3d 335, 342(Tex.App.-Houston [14th Dist.] 2003, no pet.)(Anderson, J., concurring) (describing doctrine ofvirtual representation as an exception to the gener-al rule for appellate standing that only parties of re-cord may exercise the right of appeal (emphasisomitted)).FN4

FN4. The supreme court has observed thatas a practical matter, one who seeks to in-voke the virtual-representation doctrine inorder to assert an interest on appeal musttake some timely, appropriate action to at-tain named-party status. In re Lumber-mensMut. Cas. Co., 184 S.W.3d 718, 722(Tex.2006). A motion to intervene on ap-peal, while untimely under the general ruleagainst post-judgment intervention, hasbeen considered sufficient to invoke thevirtual-representation doctrine. See id. Forthis reason, the virtual-representation doc-


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trine is sometimes viewed as an exceptionto the rule against post-judgment interven-tion, although it is more accurately charac-terized as an exception to the rule that ap-peals are available only to parties of re-cord. See id.; see also TexasMut.Ins. Co.v. Ledbetter, 251 S.W.3d 31, 36(Tex.2008) (stating that parties can inter-vene even after judgment or on appeal un-der virtual-representation doctrine).

[5][6] In order to claim virtual representation,an appellant must show that (1) it is bound by theudgment, (2) its privity of estate, title, or interest

appears from the record, and (3) there is an identityof interest between the appellant and a named partyto the judgment. Motor VehicleBd. v.El PasoIn-

dep. Auto. Dealers Ass'n, 1 S.W.3d 108, 110(Tex.1999) (per curiam); Taylor v. Hill, 249S.W.3d 618, 623 (Tex.App.-Austin 2008, pet.denied). Even if all three of the virtual-rep-resentation requirements are met, however, a partyneed not be permitted to intervene if the interven-tion would create unnecessary delay or prejudiceto the existing parties. Ledbetter, 251 S.W.3d at36; see also Lumbermens, 184 S.W.3d at 722;Taylor,249S.W.3dat623.

To support its contention that it has standing toappeal the divorce decree under the virtual-representation doctrine, the State relies on Motor

Vehicle Board v. El Paso Independent AutomobileDealersAss'n.,1S.W.3d108. In ElPaso, the courtheld that the virtual-representation *440 doctrineallowed the State to intervene on appeal and chal-lenge a trial court's judgment holding provisions ofthe transportation code unconstitutional and enjoin-ing the enforcement of those provisions. Id. at 109.The appellees, an association of used-car dealers,filed suit against local government officials in ElPaso, seeking to enjoin them from enforcing certaintransportation code provisions, referred to as theBlue Law, that made it illegal to sell cars on con-secutive weekend days. Id. at 110. The dealers fur-ther sought a declaration that the Blue Law was un-

constitutional. Id. The association did not name theattorney general or any state agency as a party tothe suit, but served a copy of its petition on the at-torney general, as required for all suits seeking todeclare a statute unconstitutional. Id.; see also Tex.Civ. Prac. & Rem.Code Ann. 37.006(b) (West2008) ([I]f the statute ... is alleged to be unconsti-tutional, the attorney general of the state must alsobe served with a copy of the proceeding and is en-titled to be heard.). The attorney general expresslydeclined to participate in the case, stating in a letterthat the local government officials were capable ofadequately presenting the constitutional issues tothe court. ElPaso,1S.W.3dat111.

After filing a general denial, however, the localofficials came to the conclusion that the Blue Law

was, in fact, unconstitutional. Id. at 110. The localofficials then negotiated a pretrial agreement con-sistent with their conclusion that the Blue Law wasunconstitutional, leading the trial court to renderudgment declaring the law unconstitutional and

permanently enjoining all officials charged with en-forcement of the Blue Law, including the attorneygeneral, from doing so.FN5 Id. Upon learning ofthe declaratory judgment and permanent injunction,the attorney general and the Motor Vehicle Divi-sion of the Texas Department of Transportation(collectively, the State), unsuccessfully attemptedto intervene post-judgment. Id. The State then per-fected an appeal, and the association filed a motion

to dismiss on the basis that the State was not a partyof record in the underlying suit. Id. The supremecourt determined that the State had standing to in-tervene under the doctrine of virtual representation,and that the State's right of appeal had not beenwaived by the attorney general's letter deferring tothe local officials' ability to adequately defend theconstitutionality of the Blue Law. Id. at 11011. Inreaching this conclusion, the supreme courtreasoned that the letter was based on a belief thatthe statute would be defended by the Local Offi-cials statutorily charged with its enforcement. Id.at111.


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FN5. In oral argument in this case, theState took the position that the trial court'sjudgment in El Paso had not been bindingon the State. The El Paso court of appealsdecision, however, quoted the trial court'sjudgment as permanently enjoining [a]llofficials authorized by Tex. Trans[p]. Code 728.004 to enforce the Blue Law fromdoing so unless the Texas Supreme Courtshall subsequently rule that the statutes areconstitutional. Attorney Gen. v. El PasoIndep. Auto. Dealers Ass'n, 966 S.W.2d783, 785 (Tex.App.-El Paso 1998), rev'don other grounds, 1 S.W.3d 108(Tex.1999) (per curiam). The court of ap-peals went on to state:

Section 728.004 charges the AttorneyGeneral ... with enforcement of [the BlueLaw]. Accordingly, the Attorney Gener-al is bound by the judgment. The judg-ment also declares [the Blue Law] un-constitutional. Since the Motor VehicleCommission Code authorizes the MotorVehicle Division to deny, revoke, or sus-pend the license of any person who viol-ates any law relating to the sale or distri-bution of motor vehicles, the Divisionalso arguably is bound under the judg-ment from enforcing its authority....

Id. The supreme court agreed with thecourt of appeals on this point. ElPaso, 1S.W.3dat110.

*441 [7]In the present case, the State contendsthat it declined to intervene prior to rendition ofudgment because it was relying on Daly to defend

the constitutionality of family code section 6.204,ust as it relied on the local officials in ElPaso.Ac-

cording to the State, it was virtually represented byDaly until she abandoned her defense of the stat-ute. The State argues that under the reasoning ofElPaso, it is entitled to intervene on appeal in thiscase in order to defend the family code from consti-

tutional attack. The facts of the present case,

however, are distinguishable from ElPaso in signi-ficant ways. The underlying suit in which the Statesought to intervene in El Paso was a suit directlyattacking the constitutionality of the statute. Id. at110. There is no question that the State has an in-terest in defending its statutes from attack, and thatthe attorney general is entitled to be heard in a suitchallenging the constitutionality of a statute. SeeTex. Civ. Prac. & Rem.Code Ann. 37.006(b).This case, on the other hand, is not a suit to declarea statute unconstitutional or enjoin its enforcement,but a private divorce proceeding involving issues ofproperty division and child custody. Neither of thenamed parties raised any constitutional challenge toany Texas statute or, for that matter, mounted anydefense of the constitutionality of any Texas stat-ute. Naylor did not serve the attorney general with a

copy of her petition, as she would have been re-quired to do if the constitutionality of a statute hadbeen challenged. See id. In fact, the first time theword constitution appears in the clerk's record isin the State's petition in intervention, filed afterrendition of judgment. The State's claim that Dalyabandoned her defense of the statute fails becauseDaly never defended the statute in the first place.She had no reason to do so, given that no constitu-tional challenge had been raised. Daly simplysought to declare the marriage void under section6.204, or in the alternative, to obtain temporary or-ders governing the use of the parties' property andordering payment of interim attorney's fees as per-

mitted under the family code. See Tex. Fam.CodeAnn.6.502. A request for relief under a particularstatute is not the equivalent of a defense of thatstatute's constitutionality, especially where no con-stitutional challenge has been raised. Otherwise, theState would be entitled to intervene in any case inwhich statutory relief has been requested, in orderto defend the statute granting such relief fromany potential (but as yet unraised) constitutional at-tack.

The State treats Naylor's petition for divorce asan implied constitutional attack on section 6.204of the family code, reasoning that the trial court


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could not possibly have granted the divorce withoutdetermining that section 6.204 is unconstitutional.See id. 6.204(c) (providing that state agency orpolitical subdivision may not give effect to right orclaim to any legal protection, benefit, or responsib-ility asserted as result of same-sex marriage). Wedecline to read an implied constitutional challengeinto Naylor's petition for divorce where no suchchallenge has been expressly raised, particularlygiven the potential for interpreting section 6.204 ina manner that would allow the trial court to grant adivorce in this case. One could argue, for example,that section 6.204 did not prohibit the trial court'sactions because divorce is a benefit of state resid-ency, rather than a legal protection, benefit, or re-sponsibility resulting from marriage. See id. Onecould also argue that under the plain language of

section 6.204, the trial court is only prohibited fromtaking actions that create, recognize, or give effectto same-sex marriages on a going-forward basis,so that the granting of a divorce would be permiss-ible. Naylor *442has in fact made both of these ar-guments, either on appeal or in response to theState's post-judgment plea to the jurisdiction. Whilewe express no opinion on the merit of these argu-ments, the fact remains that there are interpretationsof section 6.204 that would allow the trial court togrant the divorce without finding the statute uncon-stitutional. Furthermore, any such interpretationwould have to be entertained before a conclusion ofunconstitutionality could be reached. See City of

Houston v.Clark, 197 S.W.3d 314, 320 (Tex.2006)(When faced with multiple constructions of a stat-ute, we must interpret the statutory language in amanner that renders it constitutional if it is possibleto do so.). Thus, Naylor's petition for divorce doesnot, as the State suggests, represent an implied con-stitutional challenge.

This case is also distinguishable from El Pasoin that the divorce decree at issue here does not de-clare any Texas statute unconstitutional, nor does itenjoin the State from enforcing any statute. UnlikeElPaso, where all state actors charged with enfor-cing the statute were bound by the trial court's judg-

ment, the only parties bound by the judgment inthis case are the parties of recordDaly andNaylor. See 1 S.W.3d at 110. While the State ar-gued at the hearing on the motion to enter judgmentthat future litigants might cite this case in supportof the contention that the State waived its ability todefend section 6.204from constitutional attack, thatcannot possibly be the case. A divorce proceedingbetween two private parties, where no constitution-al issues were raised or decided and the State wasnot a party of record, could not be used to success-fully argue that the State has waived its right to in-tervene in future litigation involving an actual, dir-ect challenge to the constitutionality of section6.204. Because the State is not bound by the judg-ment in this case, it cannot meet the first require-ment of the virtual-representation doctrine. SeeCity

of San Benito v. Rio Grande Valley Gas Co., 109S.W.3d 750, 755 (Tex.2003) (holding that themost important consideration in virtual-representation doctrine is whether the appellant isbound by the judgment).

[8] The State also fails to meet the second vir-tual-representation doctrine requirement because itcannot show that its privity of estate, title, or in-terest appears from the record. The record does notreflect that the State has any interest in the parties'property division or the terms of their agreement re-lated to child custody. While the State's purportedinterest is in defending the validity of family code

section 6.204, the trial court's judgment did not de-clare any provision of the family code to be uncon-stitutional or otherwise invalid. The mere fact that,in the State's view, the trial court's actions weretaken in violation of section 6.204 does not meanthat the trial court's actions invalidated section6.204. FN6

FN6. Whether the trial court actually viol-ated section 6.204 in granting the divorceis a matter on which the State and theparties of record disagree. Because theState lacks standing to appeal, we lacksubject-matter jurisdiction to resolve this


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question.

[9] Furthermore, the State cannot show anidentity of interest between itself and any namedparty to the judgment, as required by the third andfinal element of the virtual-representation doctrine.Daly, upon whom the State claims it relied to pro-tect its interests, did not defend the validity of anyTexas statute. She sought only to declare her mar-riage void under the family code, or alternatively,for temporary orders governing the parties' propertydivision and ordering payment of interim attorney'sfees. *443 As previously discussed, a request forrelief under a statute is not the equivalent of a de-fense of that statute from hypothetical constitution-al attack. Unlike the State, or the local officials inElPaso, Daly is not charged with the enforcement

or defense of the validity of state law. Thus, wecannot conclude that the State is so connected inlaw with a party to the judgment as to have such anidentity of interests that the party to the judgmentrepresented the same legal right. Benson v.Ander-son, 899 S.W.2d272, 275 (Tex.App.-Houston [14thDist.] 1995, writ denied) (quoting Mobil Explora-tion & Producing U.S. Inc. v. McDonald, 810S.W.2d 887, 890 (Tex.App.-Beaumont 1991, writdenied)).FN7 Because the State cannot establish thethree required elements of the virtual-representationdoctrine, it has no standing to appeal as a deemedparty of record.

FN7. An argument could be made thatDaly shared the State's interest, not in de-fending the constitutionality of the familycode, but in the position, alleged in herpleading seeking to declare the marriagevoid, that the trial court lacked subject-mat-ter jurisdiction to grant the parties' divorce.See Lumbermens, 184 S.W.3d at 724(holding that identity of interest for pur-poses of virtual representation existedwhere party of record and would-be inter-venor shared same ultimate aim of re-versing underlying judgment). Assumingwithout deciding that the State and Daly

shared an identity of interest with respectto subject-matter jurisdiction, the fact re-mains that the trial court's judgment wasnot binding on the State as to any issue,jurisdictional or otherwise. As a result, theState was not virtually represented by Dalyin the underlying suit. See City of SanBenito v.Rio Grande Valley Gas Co., 109S.W.3d 750, 755 (Tex.2003) (holding thatthe most important consideration in vir-tual-representation doctrine is whether theappellant is bound by the judgment).

[10] Even if the State had been a deemed partyunder the virtual-representation doctrine, however,equitable considerations weigh against allowing theState to participate on appeal. See Lumbermens,

184 S.W.3d at 722 (holding that non-party is en-titled to participate on appeal if requirements of vir-tual-representation doctrine are met and equitableconsiderations do not weigh against allowing [thenon-party] to participate on appeal); seealso id. at729 ([W]hether a would-be intervenor is entitledto appeal under the virtual-representation doctrineis an equitable determination that must be decidedon a case-by-case basis.). By entering into theagreed judgment in this case, Naylor and Daly wereable to settle a protracted and complex property dis-pute involving numerous business entities, a sub-stantial amount of real property, and multiple cred-itors, one of whom testified that she had substan-

tially depleted her life savings to loan money to thecouple's fledgling business enterprise. Naylor andDaly were also able to settle their differences withrespect to the motion to modify the parent-child re-lationship, incorporating a 50page agreed ordergoverning child custody into the divorce decree andfurther agreeing to an order on co-parenting coun-seling. To allow the State to intervene at this stageof the proceedings would greatly prejudice not onlythe existing parties and their creditors, but the childwhose custody situation remains unsettled whilethis litigation continues. The State, on the otherhand, is not prejudiced in any way if it is unable tointervene on appeal, as it is in no way bound by the


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trial court's judgment or otherwise prevented fromdefending any state statute from constitutional at-tack.

As the foregoing discussion demonstrates, theState does not meet any of the required elements ofthe virtual-representation doctrine in order to bedeemed a party of record in this case, and equitable*444 considerations weigh against allowing theState to intervene on appeal. Because the State hasnot properly intervened and cannot be considered adeemed party of record under the virtual-representation doctrine, it lacks standing to appeal.FN8 See Gunn, 391 S.W.2d at 724. This Court can-not exercise subject-matter jurisdiction over an ap-peal in which the sole appellant lacks standing. FN9SeeNovak, 52 S.W.3d at 708 (Standing is a pre-

requisite to subject-matter jurisdiction....).

FN8. Had the State attempted to interveneprior to the rendition of judgment, the trialcourt's decision on whether to grant aparty's motion to strike would have beenreviewed for an abuse of discretion. SeeGuarantyFed. Sav.Bank v.HorseshoeOp-erating Co., 793 S.W.2d 652, 657(Tex.1990) ([T]he trial court has broaddiscretion in determining whether an inter-vention should be stricken....). We ex-press no opinion on the State's ability to in-tervene under those circumstances.

We also note that the procedural postureof this case, particularly with respect tothe State's intervention, differs from thatof In re J.B., 326 S.W.3d 654(Tex.App.-Dallas 2010, no pet. h.). Inthat case, the court of appeals held thatthe trial court abused its discretion instriking the State's timely interventionwhere no party had filed a motion tostrike. Id. at 660 (The court abuses itsdiscretion by striking an intervention inthe absence of a motion to strike.); seealso id. at 660 (Lack of a justiciable in-

terest to intervene must be raised by a

motion to strike or the defense iswaived.). But see Dunker, 799 S.W.2dat 336 (holding that rule governing mo-tion-to-strike procedure does not applyto interventions attempted after renditionof judgment (citing Tex.R. Civ. P. 60)).

FN9. Having determined that we lack sub-ject-matter jurisdiction over this appeal,we express no opinion on the remaining is-sues raised by the State.

CONCLUSIONBecause the State lacks standing to appeal, we

dismiss this appeal for want of jurisdiction.

Tex.App.Austin,2011.

State v. Naylor330 S.W.3d 434

END OF DOCUMENT


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TAB 2


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V.T.C.A., Civil Practice & Remedies Code 37.006 Page 1

Effective:[SeeTextAmendments]

Vernon's Texas Statutes and Codes Annotated CurrentnessCivil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and AppealSubtitleC. Judgments

Chapter37. Declaratory Judgments (Refs & Annos)37.006.Parties

(a) When declaratory relief is sought, all persons who have or claim any interest that would be affected by thedeclaration must be made parties. A declaration does not prejudice the rights of a person not a party to the pro-ceeding.

(b) In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must bemade a party and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitution-al, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard.

CREDIT(S)

Acts 1985, 69th Leg., ch. 959, 1, eff. Sept. 1, 1985.

HISTORICAL AND STATUTORY NOTES

2008 Main Volume

UniformLaw:

This section is similar to 11 of the Uniform Declaratory Judgments Act. See Vol. 12A Uniform Laws Annot-ated, Master Edition or ULA Database on Westlaw.

Prior Laws:

Acts 1943, 48th Leg., p. 265, ch. 164, 11.

Vernon'sAnn.Civ.St.art.2524-1,11.

CROSS REFERENCES


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Page 11 S.W.3d 108, 42 Tex. Sup. Ct. J. 1128(Citeas:1S.W.3d108)

Supreme Court of Texas.MOTOR VEHICLE BOARD OF THE TEXAS DE-PARTMENT OF TRANSPORTATION, Petitioner,

v.EL PASO INDEPENDENT AUTOMOBILE

DEALERS ASSOCIATION, INC., Respondent.

No. 980514.Aug. 26, 1999.

Automobile dealers association sued city andothers, seeking to enjoin them from enforcingBlue Law that prohibited the sale of cars on con-secutive weekend days, and to have the statutes de-

clared unconstitutional. The District Court, El PasoCounty, Reed Leverton and Sam Callan, JJ., de-clared the Blue Law unconstitutional, and enjoinedall officials authorized under the TransportationCode from enforcing their provisions. The DistrictCourt denied the Attorney General and the MotorVehicle Board's posttrial motions to intervene. Cityand others appealed, in an effort to preserve an av-enue for the Attorney General and the Board to per-fect their appeal. The El Paso Court of Appeals,966 S.W.2d 783, dismissed the Attorney Generaland the Board's appeal, and the city and othersthereafter voluntarily dismissed their appeal. Attor-ney General and Board appealed. The Supreme

Court held: (1) Attorney General and Board hadstanding to appeal via the doctrine of virtual repres-entation; (2) Attorney General and Board did notwaive their right to appeal; and (3) mistake in ap-peal caption did not deprive the Board of the rightto appeal.

Reversed and remanded.

West Headnotes

[1]DeclaratoryJudgment118A 392.1

118A Declaratory Judgment

118AIII Proceedings

118AIII(H) Appeal and Error

118Ak392 Appeal and Error118Ak392.1 k. In General. Most CitedCases

Attorney General and Motor Vehicle Boardwere parties pursuant to doctrine of virtual repres-entation, and thus had standing to appeal trialcourt's judgment declaring unconstitutional statutesthat prohibited the sale of cars on consecutiveweekend days, though the Attorney General and theBoard declined to participate when the suit was firstfiled. V.T.C.A., Transportation Code 728.001 728.004.



30IV(A) Persons Entitled30k137 Parties of Record

30k138 k. In General. Most Cited Cases

AppealandError30 148


30IV(A) Persons Entitled30k148 k. Persons Other Than Parties or

Privies. Most Cited Cases

Generally, appeal is available only to parties ofrecord; however, an exception exists when the ap-pellant is deemed to be a party under the doctrine ofvirtual representation.



30IV(A) Persons Entitled30k148 k. Persons Other Than Parties or

Privies. Most Cited CasesTo claim virtual representation, to be entitled

to appeal when not a party of record, an appellant

must show that: (1) it is bound by the judgment; (2)


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Page 21 S.W.3d 108, 42 Tex. Sup. Ct. J. 1128(Citeas:1S.W.3d108)

its privity of estate, title, or interest appears fromthe record; and (3) there is an identity of interestbetween the appellant and a party to the judgment.

[4]DeclaratoryJudgment118A 392.1

118A Declaratory Judgm

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