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No.

11-0114
3Jn (!Court of
The State of Texas,
Petitioner,
v.
Angelique Naylor and Sabina Daly,
Respondents.
On Petition for Review from the Third Court of Appeals at Austin, Texas
Case No. 03-10-00237-CV
Respondents' Joint Response
to the State's Petition for Review
James J. Scheske (SBN 17745443)
Jason P. Steed (SBN 24070671)
AKIN GUMP STRAUSS HAUER
&FELD LLP
300 West 6th St., Suite 1900
Austin, Texas 78701
Telephone: (512) 499-6200
Facsimile: (512) 703-1112
Email: jscheske@akingump.com
Email: jsteed@akingump.com
COUNSEL FOR RESPONDENT
ANGELIQUE NAYLOR
Robert B. Luther (SBN 12704000)
LAw OFFICES OF
ROBERT B. LUTHER, P.C.
1800 Rio Grande
Austin, Texas 78701
Telephone: (512) 477-2323
Facsimile: (512) 478-1824
Email: rbluther@luthlaw.com
COUNSEL FOR RESPONDENT
SABINA DALY
FILED
IN THE SUPREME COURT
OF TEXAS
11 June 27 P6:11
BLAKE. A. HAWTHORNE
CLERK
Identity of Parties and Counsel
Petitioner
The State of Texas
Counsel for Petitioner
James D. Blacklock
Assistant Solicitor General
State Bar No. 24050296
Cleve W. Doty
Assistant Attorney General
State Bar No. 24069627
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Telephone: (512) 936-1700
Facsimile: (512) 474-2697
Respondent
Angelique Naylor
Counsel for Respondent
Appellate Counsel:
James J. Scheske (SBN 17745443)
Jason P. Steed (SBN 24070671)
AKIN GUMP STRAUSS HAUER
&FELD LLP
300 West 6th St., Suite 1900
Austin, Texas 78701
Telephone: (512) 499-6200
Facsimile: (512) 703-1112
Email: jscheske@akingump.com
Email: jsteed@akingump.com
Trial Counsel:
Jennifer R. Cochran (SBN 24065057)
LAw OFFICE OF
JENNIFER R. COCHRAN
13062 Hwy. 290 West, Suite 201
Austin, Texas 78737
Telephone: (512) 615-3584
Facsimile: (512) 236-5303
Email: jencochranlaw@gmail.com
11
Respondent
Sabina Daly
Counsel for Respondent
Robert B. Luther (SBN 12704000)
LAw OFFICES OF
ROBERT B. LUTHER, P.C.
1800 Rio Grande
Austin, Texas 78701
Telephone: (512) 477-2323
Facsimile: (512) 478-1824
Email: rbluther@luthlaw.com
III
Table of Contents
Identit)r of Parties and CounseL ....................................................................................... ii
Table of Contents .............................................................................................................. .iv
Index of Authorities ........................................................................................................... v
Statement of the Case ..................................................................................................... vii
Statement of Jurisdiction .............................................................................................. viii
Issue Presented .................................................................................................................. ix
Statement of Facts ............................................................................................................. 2
Summary of the Argument .............................................................................................. 6
Argument ........................................................................................................................... 6
I. Because neither the trial court nor the court of appeals considered or
decided the jurisdictional and constitutional issues presented in the
State's petition, this Court lacks jurisdiction to review them ............................ 6
II. Because the State lacks the power to intervene under established law,
and because the court of appeals properly applied that law to deny
intervention, this Court should refuse the State's petition for review .............. 8
A. The State cannot intervene under Rule 60 .............................................. 9
B. The State cannot intervene under CPRC 37.006(b) .......................... 10
C. The State cannot intervene under the "virtual representation"
doctrine ...................................................................................................... 12
III. Because judicial restraint, equitable considerations, and separation of
powers counsel against expanding the Executive Branch's power to
intervene in civil judicial proceedings, the Court should refuse the
State's petition for review ...................................................................................... 14
Prayer ................................................................................................................................. 15
Certificate of Service ........................................................................................................ 17
Appendix ........................................................................................................................... 18
iv
Index of Authorities
Page(s)
State Cases
Arteaga v. State,
2005 WL 2012336 (Tex. App.-San Antonio Aug. 24,2005, pet. ref'd) ................... 15
City of San Benito v. Rio Grande Valley Gas Co.,
109 S.W.3d 750 (Tex. 2003) ........................................................................................ 12
Doe v. Carroll,
2009 WL 1811002 (Tex. App.-Austin June 23, 2009, no pet.) ................................... 9
Gonzalez v. Avalos,
907 S.W.2d 443 (Tex. 1995) .......................................................................................... 7
In re Doe 2,
19 S.W.3d 278 (Tex. 2000) (Hecht, J., joined by J. Abbott, dissenting) ..................... 14
In rel.B.,
No. DF-09-1074, 2009 WL 3316580 (302nd Dist. Ct., Dallas County, Tex.
Oct. 1,2009) (trial order) ........................................................................................ 2, 3, 9
In re Lumbermens Mut. Cas. Co.,
184 S.W.3d 718 (Tex. 2006) .................................................................................. 12, 13
In re Marriage of 1.B. and H.B.,
326 S.W.3d 654 (Tex. App.-Dallas 2010, pet. filed) ........................................ passim
In re Union Carbide Corp.,
273 S.W.3d 152 (Tex. 2008) .......................................................................................... 9
Motor 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, 13
Ojo v. Farmers Group, Inc.,
--- S.W.3d ---, 2011 WL 2112778 (Tex. May 27, 2011) .............................................. 15
Roberson v. Roberson,
420 S.W.2d 495 (Tex. Civ. App.-Houston [14th Dist.] 1967, ref. n.r.e.) .................. 14
Southwestern Refining Co., Inc. v. Bernal,
22 S.W.3d 425 (Tex. 2000) (Enoch, J., joined by c.J. Phillips and J. Hankinson,
dissenting) ..................................................................................................................... 14
v
State v. Naylor,
330 S.W.3d 434 (Tex. App.-Austin 2011, pet. filed) ....................................... passim
Texas Mut. Ins. Co. v. Ledbetter,
251 S.W.3d 31 (Tex. 2008) .................................................................................... 12, 13
Wilson v. Andrews,
10 S.W.3d 663 (Tex. 1999) .................................................................................... 10, 11
State Statutes and Rules
Tex. Fam. Code 6.204 ................................................................................................. ix, 7
Tex. Civ. Prae. & Rem. Code Ann., 37.006(b) ...................................................... passim
Tex. Gov't Code, 22.001(a) ...................................................................................... viii, 7
Tex. R. Civ.Proe. 60 .............................................................................................. 6,8,9,10
Tex. R. App. Proe. 53.4 ........................................................................................................ 8
VI
Nature of the Case:
Trial Court:
Trial Court's
Disposition:
Parties in
Court of Appeals:
Court of Appeals:
Court of Appeals'
Disposition:
Statement of the Case
Angelique Naylor and Sabina Daly were legally
married in Massachusetts in 2004. CR92. In 2009,
Naylor petitioned for a divorce in Texas. CR91-102.
The trial court granted the divorce February 10,
2010. RR3:115. The State attempted to intervene
the 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 divorce
had been granted February 10, 2010, and implicitly
denied the State's intervention as untimely. RR4:41-
42, 68. The State's appeal followed. CR485.
Appellant: State of Texas
Appellees: Angelique Naylor & Sabina Daly
Third Court of Appeals, Austin. Before c.J. Jones, J.
Puryear, and J. Henson.
The Court of Appeals (Henson, J.) held the State
could not intervene and dismissed the appeal for
lack of jurisdiction. Statev. Naylor, 330 S.W.3d 434
(Tex. App.-Austin 2011, pet. filed), attached as App.
Tab 1. No motions for rehearing were filed.
VII
Statement of Jurisdiction
The 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 jurisdiction.
State v. Naylor, SSO S.W.sd 4S4, 444 (Tex. App.-Austin 2011, pet. filed), attached
as App. Tab 1 ("Op:'). As a result, the court of appeals declined to opine on the
issues raised by the State's appeal. Op.441-442 ("we express no opinion on the
merit" of arguments regarding the construction or constitutionality of section 6.204
of the Family Code), 442 n.6 ("we lack subject-matter jurisdiction to resolve"
whether the trial court violated section 6.204 by granting the divorce), 444n.9 ("we
express no opinion on the remaining issues raised by the State"). Thus, contrary to
the State's contentions, see Petition for Review at vi, this case does not involve the
construction or validity of any Texas law, and the court of appeals' decision did not
create a conflict among the courts of appeals regarding the trial court's ability to
hear or grant a divorce. Furthermore, the court of appeals did not err in applying
well-established law governing third-party intervention in civil proceedings, nor
does its opinion conflict with any other Texas court regarding intervention. See
Section II, below. Therefore, this Court lacks jurisdiction and should refuse the
State's petition for review.
viii
Issue Presented
Should the Supreme Court create new law to provide that, when the State's
Executive Branch determines a case involves "matters of significant public
concern;' or when it determines a statute's constitutionality is at issue-
regardless of whether that statute's constitutionality has been directly
challenged - the Executive Branch may intervene as a third party in civil
judicial proceedings?
IX
No. 11-0114
1fn ijtbe ~ u p r m ([ourt of ijtexas
The State of Texas,
Petitioner,
v.
Angelique Naylor and Sabina Daly,
Respondents.
On Petition for Review from the Third Court of Appeals at Austin, Texas
Case No. 03-10-00237-CV
Respondents' Joint Response
to the State's Petition for Review
To THE HONORABLE SUPREME COURT OF TEXAS:
The 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 the
State lacks power to intervene under established law and the court of appeals
properly 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 expanding
the State's power to intervene in civil judicial proceedings, the Court should deny
the State's petition for review.
Statement of Facts
Angelique 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 a
suit affecting the parent-child relationship (SAPCR). CRS2. Then on December S,
2009, Naylor filed for divorce in Travis County District Court. CR9I. Daly
contested Naylor's property claims by raising the usual defenses to a divorce-
including 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 the proceeding but did not
attempt 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 motions
related to the SAPCR and property division. RR2:6-7. But first the court discussed
Daly's motion to dismiss. RR2:I6-SI. The motion to dismiss asserted that the trial
court lacked subject-matter jurisdiction because Texas did not recognize the validity
of Naylor and Daly's marriage. CRI04-I05. The trial court noted this presented a
"unique 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, 2009
WL 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
2
state). During a brief recess, the court took the opportunity to review the findings
of fact and conclusions of law filed in the J.B. case. RR2: 2S-25. The trial court
then worked out a briefing schedule on the jurisdictional issue. RR2:25-S1.
Moving on, the court heard arguments and evidence on the child custody and
property division issues. RR2:SS-211. At one point Naylor's counsel said the
property disputes were the primary source of hostility between the couple. RR2:67.
For its part, the trial court encouraged the couple repeatedly to resolve their
disputes 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 couple
announced they had resolved a dispute relevant to the SAPCR. RRS:5-6. Later
that morning they resolved another dispute, and indicated they were on the verge of
resolving everything. RRS:62-64.
The court was pleased-but this led to some discussion about the property
issues, and the court wondered whether it could issue any orders pertaining to
property before it had decided the jurisdictional question-because if it lacked
jurisdiction over the divorce its orders might be void. RRS:69. Daly said her
motion to dismiss did not contend the trial court lacked jurisdiction, but contended
the court should declare the marriage void. RRS:68,72. The court and Daly's
counsel discussed this confusion over the motion to dismiss, and the court declared
it all a ''legal mess;' RRS:68-72, and again encouraged the parties to work toward
resolving their disputes. RRS:7S-74.
S
The court heard more testimony-then, before breaking for lunch, it chastised
the couple for their accounting "mess" and described the couple's financial situation
as a "sticky wicket:' RR3:100. The court warned that things would only "get
stickier" as the parties continued to pursue litigation -and yet again the court
encouraged the parties to "find a way to extricate" themselves from the mess, by
resolving their disputes. RR3:100.
When the court reconvened, Daly's counsel announced the couple had settled
all disputes. RR3:101. The agreement was read into the record, RR3:102-114, and
Daly's counsel asked the court to grant the divorce if it believed it had the power to
do so. RR3:110,115. The court then granted the divorce.} RR3:115.
The State made no attempt to intervene before rendition-though its
representative was present. PFR at 5-7. Instead, the State filed its petition in
intervention the day after the divorce had been granted, CR240, and filed a plea to
the 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 conspired
with the district court to hurriedly grant the divorce, upon learning the State's representative
was present. PFR at 6-7. But after the State made these same insinuations in the court of
appeals, one panel member openly disapproved of them as "inappropriate" during oral
argument. And in its opinion, the court of appeals went out of its way to note that the State's
"suggestion 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 counsel
"admitted at oral argument ... that the parties asked the district court to abruptly short-circuit
the litigation upon learning that the Attorney General's office was monitoring the case." PFR
at3. This is an outright fabrication-Daly's counsel said no such thing. The record
demonstrates the couple, at the court's urging, was working steadily toward resolving their
disputes throughout the two-day hearing.
4
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 to
intervene, RR4:20-67, and expressed concern about the State's effort to interfere in
a settled divorce, particularly where a child was involved -even pleading with the
State 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 had
rendered judgment on February 10,2010, RR4:68, and indicating it therefore
could refuse the intervention as untimely. RR4:41-42. The court consequently
declined to hear the State's plea to the jurisdiction, telling the State that-ifit could
rightfully intervene pos1judgment under the "virtual representation" doctrine, as
the State contended-it could raise its jurisdictional arguments on appeal.
RR4:27-28. The trial court then signed the final judgment, RR4:70, and the
State's appeal followed. CR485.
The court of appeals never reached the State's statutory and constitutional
arguments, because it held the State could not intervene; therefore, the State lacked
standing and the appeal was dismissed for lack of jurisdiction.
2
Op. 444. The State
then filed its petition for review.
2 The State says the court of appeals "affirmed" the divorce, ''holding ... that a same-sex divorce
might be permissible in Texas court." PFR at 8. This is at odds with the court of appeals'
opinion and holding. Op. 442 n.6 ("we lack subject-matter jurisdiction to resolve" whether the
trial court should have granted the divorce).
5
Summary of the Argument
This 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 civil
proceedings, there are only three bases for intervention: Rule 60,
CPRC 37.006(b), and the "virtual representation" doctrine. None of these
provides 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 create
new law granting the State's Executive Branch special power to intervene in civil
judicial proceedings-based on the State's assertion that the case involves "matters
of significant public concern;' or that a statute's constitutionality is at issue.
The State provides no argument or authority supporting review to create new
law. Moreover, judicial restraint, equitable considerations, and separation of
powers counsel against granting the Executive Branch broad new power to
intervene in civil judicial proceedings. The Court should affirm established law
governing third-party intervention-and because the court of appeals properly
applied that law, the Court should refuse the State's petition for review.
Argument
I. Because neither the trial court nor the court of appeals considered or decided
the jurisdictional and constitutional issues presented in the State's petition,
this Court lacks jurisdiction to review them.
As the State concedes, the trial court did not hear the State's plea to the
jurisdiction raising statutory-construction and constitutional issues. PFR at 7. And
6
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 found
the State lacked standing to raise them on appeal. Op. 441-442 ("we express no
opinion on the merit" of arguments regarding the construction or constitutionality
of section 6.204 of the Family Code), 442 n.6 ("we lack subject-matter jurisdiction
to resolve" whether the trial court should have granted the divorce), 444n.9 ("we
express no opinion on the remaining issues raised by the State").
Further, the Third Court of Appeals' decision did not conflict with the Fifth
Court of Appeals' decision. The Third Court did not substantively address the
construction or constitutionality of section 6.204 of the Family Code (which
prohibits 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 not
substantively address the State's right to intervene, and consequently reached the
statutory-construction and constitutional issues. In re Marriage ofJ.B. and HB.,
326 S.W.3d 654,660,681 (Tex. App.-Dallas 2010, pet. filed). These two opinions
therefore present no conflict for the purposes of this Court's jurisdiction. Gonzalez
v.Avalos, 907 S.W.2d 443,444 (Tex. 1995) (per curiam) (decisions are in conflict,
for purposes of this Court's jurisdiction, only when, if issued by the same court, the
later decision would overrule the earlier decision).
7
Given the above, this case does not properly present jurisdictional or
constitutional questions, contra PFR at vii (questions 2 and 3), and this Court has
no jurisdiction to review them. See TEX. GoV'T CODE, 22.001(a).
Finally, because the court of appeals did not err in its application of
established law governing third-party intervention, see below, the only possible issue
presented is whether the Supreme Court should create new law granting the State
power to intervene in this divorce proceeding. If the Court does grant review to
create new power for the State to intervene, then pursuant to Texas Rule of
Appellate Procedure 53.4, it should remand to the court of appeals for
consideration of the jurisdictional and constitutional issues left undecided.
II. Because the State lacks the power to intervene under established law, and
because 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 civil
judicial proceedings: (A) Texas Rule of Civil Procedure 60; (B) Civil Practice and
Remedies Code (CPRC) 37.006(b); and (C) the judicially-created "virtual
representation" doctrine. The State is elusive about which of these bases it relies
upon to intervene in Naylor and Daly's divorce. Rather than explain the legal basis
for its intervention, the State focuses primarily on timeliness-repeatedly
misconstruing the court of appeals' decision as dismissing the State's appeal merely
because the State "intervened one day after final judgment was rendered:' E.g., PFR
at v, 3, 8. By focusing on timing, the State hopes to characterize the court of
8
appeals' decision as denying intervention on a procedural technicality-which is
ironic, 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 secondary
concern. Under established law, the State lacks the power to intervene at any time.
A. The State cannot intervene under Rule 60.
Rule 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 'Justiciable
interest" in the proceeding-stating this requirement is "of paramount importance:'
In re Union Carbide Corp., 273 S.W.3d 152, 154-155 (Tex. 2008). The ''justiciable
interest" requirement "defines the category of non-parties who may ... interject their
interests 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 "could
have brought the pending action, or any part thereof, in (its) own name:' Id.
(internal citations and quotations omitted); see also Doe v. Carroll, 2009 WL
1811002, at *4-*5 (Tex. App.-Austin June 23,2009, no pet.) (affirming denial of
intervention in a divorce action, for lack of justiciable interest).
3 The J.B. case is currently before this Court on petition for review. In the Matter of the Marriage
ofJ.B. and HE. , No. 11-0024. It does not raise the intervention issue because, in J.B., the
district court struck the State's intervention sua sponte, and the court of appeals granted
mandamus relief on the ground that this was an abuse of discretion because Rule 60 required
the 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 discussion
of whether it had the power to intervene in the first place.
9
The State cannot contend it could have brought any part of Naylor and Daly's
divorce proceeding in its own name. Therefore, the State had no power to intervene
under Rule 60, even if its attempted intervention was timely.
B. The State 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 municipal
ordinance or franchise, the municipality must be made a party and is entitled to be
heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional,
the attorney general of the state must also be served with a copy of the proceeding
and 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 neither
Naylor nor Daly sought a declaratory judgment in this case. In her petition for
divorce, Naylor never alleged any Texas law was unconstitutional. CRI32-147. And
in granting the divorce, the trial court made no constitutional ruling. CR404 et seq.
In short, section 37.006(b) simply does not apply.
Grasping nonetheless for power to intervene, the State attempts to bootstrap
section 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 its
claim that the State has a sweeping right "to intervene to defend Texas law against
constitutional attack:' PFR at 10. But Wilson (1) involves a declaratory-judgment
10
action to which section 37.006(b) applies, and (2) does not actually involve a
holding regarding the State's right to intervene, which was not at issue. 10 S.W.3d
at 665-666, 670-671. In sum, the State offers no authority for the power to
intervene in a divorce proceeding "to defend Texas law against constitutional
attack" -because there is none.
Further, even if the State did have this broad power, it remains that no
"constitutional attack" existed in this case. The State claims Naylor levied
constitutional attacks on Texas laws in "the only pleading at the trial court
explaining 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's
response to the State's plea to the jurisdiction-meaning the State argues it has the
right to intervene based on "constitutional attacks" that Naylor made only in
response to the State's intervention.
Finally, the State claims repeatedly that Naylor and Daly-and the district
court-collectively "orchestrated" proceedings to "shield" or "insulate" this divorce
from 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 any
other district court decision. The only "shield" the State faces is the law, which
restricts the pool of third parties who can intervene in a civil proceeding.
4
4 Notably, the State also fails to explain why appellate review is necessary. The trial court's
decision to grant a divorce to a same-sex couple legally married in Massachusetts establishes no
legal precedent or binding authority.
11
The State simply does not have the broad power it seeks, to intervene in any
civil proceeding to defend against "constitutional attack"; rather, it has only limited
power to do so under section 37.006(b). Because section 37.006(b) does not apply
to this divorce proceeding, the State cannot intervene under section 37.006(b).
C. The State 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 Lumbermens Mut. Cas.
Co., 184 S.W.3d 718, 722 (Tex. 2006); Op. 439. In effect, the doctrine provides an
exception to the general rule against postjudgment intervention - but concerns
about timeliness are secondary; the doctrine primarily concerns who qualifies as a
party to the action. Op. 439 n.4 (citing Lumbermens, 184 S.W.3d at 722; Texas
Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008)).
To appeal under the virtual-representation doctrine, the intervenor must show
(1) 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 a
named party to the judgment. Motor Vehicle Bd. of Tex. Dep't ofTransp. v. El Paso
Indep. Auto DealersAss'n, Inc. ("El Paso"), 1 S.W.3d 108, no (Tex. 1999) (per
curiam), attached as App. Tab 3; Op. 439. Consistent with the doctrine's primary
concern with who qualifies as a party to the action, the first requirement-that the
intervenor be bound by the judgment-is the "most important consideration." City
of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 755 (Tex. 2003).
12
Moreover, even if all three of these requirements are met, the intervention is not a
matter of right; the doctrine is equitable, and intervention may be denied if it would
create "unnecessary delay or prejudice to the existing parties:' Ledbetter, 251 S.W.3d
at 36; Lumbermens, 184 S.W.3d at 725; Gp. 439.
Here, as the court of appeals demonstrated, the virtual-representation
doctrine simply does not apply. Gp. 439-443. Most obviously, the State cannot
contend that it satisfies the most important requirement-that it is bound by the
divorce judgment it seeks to appeal. The trial court's divorce decree binds no one
but Angelique Naylor and Sabina Daly, and the State cannot contend otherwise. In
fact, the State does not contend otherwise, and instead attempts to avoid this
requirement by misrepresenting El Paso.
The State claims this Court permitted the State to intervene in El Paso, even
though the State "was not technically bound" by the trial court's judgment. PFR
atl2. Then the State claims El Paso "demonstrates this Court's willingness to
depart from the general rule against postjudgment intervention in order to
ensure ... that the State has the opportunity to defend its laws:' I d. But in El Paso
this Court expressly agreed with the court of appeals that the State was bound by
the trial court's judgment. 1 S.W.3d at no; Gp. 440 n.5. Moreover, in El Paso the
State was entitled to defend its laws because the case involved an action for
declaratory judgment and a direct challenge to the validity of a statute-triggering
section 37.006(b). Id. The State ignores this distinction.
13
The court of appeals correctly determined the State could not rely on the
virtual-representation doctrine to intervene. Op.439-443. Thus, there is no basis
under established law for the State's intervention, regardless of its timing. The
Court 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 in civil
judicial 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. See
Southwestern 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 being
able to reach the merits of every important case is not sufficient reason to fail to
exercise judicial restraint"); In re Doe 2, 19 S.W.3d 278, 295 (Tex. 2000) (Hecht, J.,
joined by J. Abbott, dissenting) (judicial restraint means this Court should not
undo lower court decisions just because "it would like to see a different result").
Furthermore, courts have always guarded against third-party intervention in
divorce actions, on equitable grounds. See, e.g., Roberson v. Roberson, 420 S.W.2d
495,499 (Tex. Civ. App.-Houston (14th Dist.) 1967, ref. n.r.e.) (upholding
dismissal of intervention by putative first wife in divorce case between man and
second wife, because, "We believe that interminable trouble, confusion and delay
would have resulted by the intervention:'). And as the court of appeals noted,
equitable considerations weigh against permitting the State to intervene in this case.
14
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's
divorce decree brought an end to these protracted personal matters. See id ;
Statement of Facts, above. To grant the State new power to intervene, to pursue its
abstract interests, would disrupt the actual lives of Naylor, 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 be
mindful that its judgments "carry with them a threat of state authority;' are
"coercive;' and "signal ... the imposition of violence 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 to
the Legislature-the Judiciary has no duty to promulgate new law at the Executive's
behest. 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 the
Executive broad new power to challenge judicial decisions.
Prayer
For these reasons and in the interest of justice, the Court should reject the
State's pursuit of new law and refuse the State's petition for review.
15
Respectfully submitted,
AKIN GUMP STRAUSS HAUER
&FELDLLP
300 W. 6th Street, Suite 1900
Austin, Texas 78701
Telephone: (512) 499-6200
Facsimile: (512) 499-6290
Email: jscheske@akingump.com
Email: jsteed@akingump.com
By: ________ s ~ __________ __
James J. Scheske
State Bar No. 17745443
Jason P. Steed
State Bar No. 24070671
COUNSEL FOR RESPONDENT
ANGELIQUE NAYLOR
Robert B. Luther
State Bar No. 12704000
LAw OFFICES OF ROBERT B. LUTHER, P.C.
1800 Rio Grande
Austin, Texas 78701
Telephone: (512) 477-2323
Facsimile: (512) 478-1824
Email: rbluther@luthlaw.com
COUNSEL FOR RESPONDENT
SABINA DALY
16
Certificate of Service
I hereby certifY that a true and correct copy of the foregoing Respondents'
Joint Response to the State's Petitionfor Review was forwarded to counsel of
record by email and certified mail, return receipt requested, on this 27th day of
June, 2011.
James D. Blacklock
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Counselfor Petitioner
State of Texas
Jennifer R. Cochran
LAw OFFICE OF
JENNIFER R. COCHRAN
13062 Hwy. 290 West, Suite 201
Austin, Texas 78737
Trial Counsel for Respondent
Angelique Naylor
Robert B. Luther
LAw OFFICES OF
ROBERT B. LUTHER, P.C.
1800 Rio Grande
Austin, Texas 78701
Counselfor Respondent
Sabina Daly
lsi
James J. Scheske
17
No. 11-0114
3Jn Qrourt of
The State of Texas,
Petitioner,
v.
Angelique Naylor and Sabina Daly,
Respondents.
On Petition for Review from the Third Court of Appeals at Austin, Texas
Case No. 03-10-00237-CV
Appendix
to Respondents' Joint Response
to 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 El Paso Indep. Auto Dealers Ass'n, Inc. ("EI Paso"), 1 S.W.3d 108, no (Tex.
1999)
18
TAB 1


Page 1
330 S.W.3d 434
(Cite as: 330 S.W.3d 434)

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 married
under Massachusetts law instituted divorce pro-
ceedings. The 126th Judicial District Court, Travis
County, 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 was
untimely;
(2) State was not bound by judgment and thus was
not virtually represented;
(3) State further did not have privity of interest and
thus was not virtually represented;
(4) there was no identity of interest between State
and any named party to divorce judgment, as would
allow State to be virtually represented; and
(5) even if State were a deemed party by virtual
representation, equitable considerations weighed
against allowing State to appeal.

Affirmed.

West Headnotes

[1] Appeal and Error 30 148

30 Appeal and Error
30IV Right of Review
30IV(A) Persons Entitled
30k148 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 pursue
an appeal of the trial court's judgment.

[2] Parties 287 42

287 Parties
287IV New Parties and Change of Parties
287k37 Intervention
287k42 k. Time for intervention. Most
Cited Cases
While state rules of civil procedure do not im-
pose a deadline for intervention, the general rule is
that a party may not intervene after final judgment
unless the judgment is set aside. Vernon's
Ann.Texas Rules Civ.Proc., Rule 60.

[3] Divorce 134 73

134 Divorce
134IV Proceedings
134IV(D) Parties
134k73 k. Intervention. Most Cited Cases

Divorce 134 178

134 Divorce
134IV Proceedings
134IV(O) Appeal
134k178 k. Right of review. Most Cited
Cases
State's attempt at intervention in divorce pro-
ceeding of same-sex couple, who had married under
Massachusetts law, was untimely, as would result
in State lacking standing to pursue appeal of di-
vorce judgment, even if State intervened before
written judgment was rendered, where State at-
tempted to intervene after trial court's judgment had
been orally rendered in open court. Vernon's
Ann.Texas Rules Civ.Proc., Rule 60.

[4] Appeal and Error 30 148

30 Appeal and Error
30IV Right of Review

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30IV(A) Persons Entitled
30k148 k. Persons other than parties or
privies. Most Cited Cases
Untimeliness of party's intervention does not
bar that party's appeal if it has standing under the
virtual-representation doctrine, an exception to
the rule that appeal is available only to parties of
record.

[5] Appeal and Error 30 148

30 Appeal and Error
30IV Right of Review
30IV(A) Persons Entitled
30k148 k. Persons other than parties or
privies. Most Cited Cases
In order to claim virtual representation, so as to
give standing for an appeal, an appellant must show
that: (1) 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
appellant and a named party to the judgment.

[6] Appeal and Error 30 329

30 Appeal and Error
30VI Parties
30k329 k. Intervention or addition of new
parties. 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 unnecessary
delay or prejudice to the existing parties.

[7] Divorce 134 178

134 Divorce
134IV Proceedings
134IV(O) Appeal
134k178 k. Right of review. Most Cited
Cases
State was not bound by judgment and thus was
not virtually represented in divorce proceedings
between same-sex couple, who had married under
Massachusetts 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, neither
of the named parties raised any constitutional chal-
lenge to any state statute or mounted any defense of
the constitutionality of any state statute, and peti-
tion for divorce was not implied constitutional chal-
lenge to state statute providing that state could not
give effect to right asserted as result of same-sex
marriage, and trial court could grant divorce
without finding statute unconstitutional. V.T.C.A.,
Family Code 6.204(c).

[8] Divorce 134 178

134 Divorce
134IV Proceedings
134IV(O) Appeal
134k178 k. Right of review. Most Cited
Cases
State did not have privity of interest and thus
was not virtually represented in divorce proceed-
ings between same-sex couple, who had married
under Massachusetts law, as would give State
standing to appeal divorce judgment; fact that trial
court's actions were allegedly taken in violation of
state statute did not mean that trial court invalidated
statute. V.T.C.A., Family Code 6.204(c).

[9] Divorce 134 178

134 Divorce
134IV Proceedings
134IV(O) Appeal
134k178 k. Right of review. Most Cited
Cases
There was no identity of interest between State
and any named party to divorce judgment, and thus
State was not virtually represented in divorce pro-
ceedings between same-sex couple, who had mar-
ried under Massachusetts law, as would give State
standing to appeal divorce judgment, where divorce
defendant, upon whom State claimed it relied to
protect 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 and
ordering payment of interim attorney's fees.

[10] Divorce 134 178

134 Divorce
134IV Proceedings
134IV(O) Appeal
134k178 k. Right of review. Most Cited
Cases
Even if State was a deemed party under the vir-
tual-representation doctrine, equitable considera-
tions weighed against allowing State to appeal
agreed divorce judgment of same-sex couple, who
had married under Massachusetts law; parties were
able to settle protracted and complex property dis-
pute by entering into agreed judgment, parties
agreed to a child custody order which would allow
child's custody situation to become settled, and
State was not prejudiced in any way by being un-
able to intervene on appeal.

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

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


Before Chief Justice JONES, Justices PURYEAR
and HENSON.


OPINION
DIANE M. HENSON, Justice.
The State appeals from the final divorce decree
of appellees Angelique Naylor and Sabina Daly, as-
serting that section 6.204 of the family code de-
prives the trial court of subject-matter jurisdiction
over the appellees' divorce. See Tex. Fam.Code
Ann. 6.204(c) (West 2006) (prohibiting state
agency 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 of
record and lacks standing to appeal, we dismiss this
appeal for want of jurisdiction.

BACKGROUND
Naylor and Daly were married under Mas-
sachusetts law on September 27, 2004. Naylor and
Daly then returned to their home in Texas, where
they adopted a child, J.D., and started a real estate
business together. The couple later separated, and
in January 2009, Naylor filed a suit affecting the
parent-child relationship (SAPCR) in Travis
County district court, requesting that she and Daly
be named joint managing conservators of J.D. and
that she be given the exclusive right to designate
J.D.'s primary residence. The parties later settled
the SAPCR, and an agreed order was issued. On
December 3, 2009, Naylor filed a pro se petition for
divorce in the same cause number as the SAPCR,
later amending her petition to add, among other
things, a request for modification of the parent-
child relationship. In response, Daly moved to de-
clare the marriage void under family code section
6.204. See id. 6.204(b) (West 2006) (marriage
between persons of same sex is void in Texas); see
also id. 6.307 (West 2006) (providing that either
party to void marriage may sue to have the mar-
riage declared void). In the alternative, Daly re-
quested temporary orders under the family code
governing 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 a
continuance to allow Naylor to obtain counsel, and
issued temporary orders related to the parties' prop-
erty. Daly subsequently filed a motion to compel
and for sanctions, asserting that Naylor had failed
to comply with the temporary orders.

On February 9, 2010, the trial court held a
hearing on a number of the parties' pending motions
related to both the motion to modify the parent-
child relationship and the property division. The tri-
al court repeatedly urged the parties to settle as
many issues related to the parent-child relationship
as 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 the
child custody and property division issues, includ-
ing evidence suggesting that due to the parties' real
estate business, the division of property would be a
complex 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 accumulated
twelve properties in the course of their business en-
terprise, in part by borrowing money from family
and friends, and that many of these properties were
in or near foreclosure. On this basis, Daly sought
temporary orders that would allow her to sell cer-
tain properties, which would then free up funds to
help pay creditors.

The hearing was continued to the next day, at
which time the trial court questioned whether it
could issue temporary orders if it lacked subject-
matter jurisdiction over the parties' divorce. After
noting that final resolution of the property division
would be substantially delayed by any litigation re-
garding the validity of the marriage, the trial court
again encouraged the parties to settle, stating:

We have, in summary, a legal mess. And we have
two people who have decided, decided, not to do
good accounting.... So we have an incredibly
complex legal problem. We have an incredibly
complex factual problem with ... poor accounting.
And we have a situation where we have two *437
people who, if I've ever seen it, have an incentive
to try to resolve this.

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


We're going to break now and resume with you at
2:00 to give you maximum opportunity to resolve
some issues.... [S]o far, I don't understand your
accounting. I don't understand how you ran these
businesses. I don't understand how you possibly
did tax returns. I don't understand how a CPA
could 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 some
other sticky wickets.... I don't know where this is
all headed.... And it's only going to get stickier as
you continue down this path, which you can
choose to do, or you can find a way to extricate
yourself. I wish you good luck with that, and I
will 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 the
trial court stated, The divorce is granted pursuant
to the agreement you have recited into the record,
and the division of your estate as set forth by your
attorneys is approved as a just and right division of
your estate. The hearing then concluded. At that
time, the State had not yet attempted to intervene in
the case, and no party had presented any arguments
or filed any pleadings challenging or defending the
constitutionality of any provision of the Texas Fam-
ily Code.

FN1. While the State claims that the
parties and the trial court abruptly and un-
expectedly changed course upon learning
that a representative of the attorney gener-
al's office was in attendance, abandoning
adversarial jurisdictional arguments in fa-
vor of a hurriedly prepared settlement
agreement, this suggestion of impropriety
on the part of the trial court is unsupported
by the record. Rather, the record reflects
that the trial court consistently urged the
parties to settle their differences over the
course of the two-day hearing, citing the
best interest of J.D. and, secondarily, con-


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cerns regarding the property division and
the parties' accounting practices. In addi-
tion, while the trial court raised the juris-
dictional issue at the hearing, neither Daly
nor Naylor made any substantive argument
regarding the trial court's subject-matter
jurisdiction to grant a divorce.

The next day, February 11, 2010, the State
filed a petition in intervention, arguing that the trial
court lacked jurisdiction to grant the divorce be-
cause Naylor and Daly were of the same sex. The
State further asserted that the sole vehicle for dis-
solving the parties' Massachusetts marriage was an
action 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 to
the jurisdiction, reiterating the arguments made in
its petition in intervention and seeking to have the
suit dismissed for lack of subject-matter jurisdic-
tion.

FN2. Specifically, Daly filed an
objection to the intervention, taking the
position that the motion-to-strike proced-
ure described in Texas Rule of Civil Pro-
cedure 60 was inapplicable because the
State'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, writ
denied) (holding that rule governing mo-
tion-to-strike procedure does not apply to
interventions attempted after rendition of
judgment (citing Tex.R. Civ. P. 60 (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.))). Naylor, on the other hand,
raised her arguments in opposition to the
intervention 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 motion
for entry of final judgment and the timeliness of the
State's intervention, as the parties had not properly
set any other matter on the court's docket. After ob-
serving that a trial court can simply not consider
the intervention because it's not timely, and that
the State could arguably reassert its late-in-
tervention arguments on appeal, the trial court
signed the written divorce decree without expressly
ruling on the State's petition in intervention or plea
to the jurisdiction. The State then filed its notice of
appeal.

DISCUSSION
Because the State's standing to intervene in this
case after rendition of judgment implicates this
Court'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-
ject-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 to
parties of record, so that non-parties who have not
properly intervened in the trial court lack standing
to 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 is
available only to parties of record); Gore v. 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); see also
Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586,
98 L.Ed.2d 629 (1988) (per curiam) (The rule that
only parties to a lawsuit, or those that properly be-
come parties, may appeal an adverse judgment, is
well settled.).

[2][3] While the Texas Rules of Civil Proced-
ure do not impose a deadline for intervention, see
Tex.R. Civ. P. 60, the general rule is that a party
may not intervene after final judgment unless the
judgment 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 too
late if filed after judgment and may not be con-
sidered unless and until the judgment has been set
aside.). The State's petition in intervention in this
case was filed on February 11, one day after the tri-
al court rendered judgment in open court. See Dunn
v. Dunn, 439 S.W.2d 830, 83133 (Tex.1969)
(holding that oral rendition of divorce constituted
final judgment, despite fact that written judgment
had not yet been signed); Giles v. Giles, 830
S.W.2d 232, 237 (Tex.App.-Fort Worth 1992, no
writ) (holding that judgment was rendered when tri-
al court orally granted divorce in open court); see
also S & A Restaurant Corp. v. Leal, 892 S.W.2d
855, 857 (Tex.1995) ( Judgment is rendered when
the trial court officially announces its decision in
open court or by written memorandum filed with
the 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. See Ledbetter, 251 S.W.3d at 36.

FN3. While the State contends that it is
not clear that the district court rendered a
final judgment at the February 10 hearing,
the trial court made an express finding on
the record at the March 31 hearing on
Daly's motion for entry of judgment that
[t]he divorce was granted on February
10th. We give deference to a trial court's
determination regarding whether it previ-
ously rendered judgment. See In re Dicker-
son, 259 S.W.3d 299, 301
(Tex.App.-Beaumont 2008, pet. denied).
The State also argues that the oral granting
of the divorce was not final because both
the parties and the court contemplated the
preparation of a written order that would
be more detailed than what was recited in-
to the record. We disagree. First, the
parties 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 the
parties nor the court indicated that addi-
tional claims were left to be resolved by
the subsequent written form of judgment.
Second, the written form of judgment did
not resolve any additional issues between
the parties, but merely specified each
party's separate property in detail, as op-
posed to the oral settlement agreement,
which provided that each party owns their
sole and separate property that is either in
their name title or in their sole and separate
possession.

[4] The untimeliness of the State's intervention,
however, does not bar the State's appeal if it has
standing 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, theoretically
it is not required to intervene in order to appeal.
(citation and internal quotation marks omitted)); see
also Wojcik v. Wesolick, 97 S.W.3d 335, 342
(Tex.App.-Houston [14th Dist.] 2003, no pet.)
(Anderson, J., concurring) (describing doctrine of
virtual representation as an exception to the gener-
al rule for appellate standing that only parties of re-
cord may exercise the right of appeal (emphasis
omitted)).
FN4


FN4. The supreme court has observed that
as a practical matter, one who seeks to in-
voke the virtual-representation doctrine in
order to assert an interest on appeal must
take some timely, appropriate action to at-
tain named-party status. In re Lumber-
mens Mut. Cas. Co., 184 S.W.3d 718, 722
(Tex.2006). A motion to intervene on ap-
peal, while untimely under the general rule
against post-judgment intervention, has
been considered sufficient to invoke the
virtual-representation doctrine. See id. For
this reason, the virtual-representation doc-


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trine is sometimes viewed as an exception
to 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 Texas Mut. 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 the
judgment, (2) its privity of estate, title, or interest
appears from the record, and (3) there is an identity
of interest between the appellant and a named party
to the judgment. Motor Vehicle Bd. v. El Paso In-
dep. Auto. Dealers Ass'n, 1 S.W.3d 108, 110
(Tex.1999) (per curiam); Taylor v. Hill, 249
S.W.3d 618, 623 (Tex.App.-Austin 2008, pet.
denied). Even if all three of the virtual-rep-
resentation requirements are met, however, a party
need not be permitted to intervene if the interven-
tion would create unnecessary delay or prejudice
to the existing parties. Ledbetter, 251 S.W.3d at
36; see also Lumbermens, 184 S.W.3d at 722;
Taylor, 249 S.W.3d at 623.

To support its contention that it has standing to
appeal the divorce decree under the virtual-
representation doctrine, the State relies on Motor
Vehicle Board v. El Paso Independent Automobile
Dealers Ass'n., 1 S.W.3d 108. In El Paso, the court
held that the virtual-representation *440 doctrine
allowed the State to intervene on appeal and chal-
lenge a trial court's judgment holding provisions of
the 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 El
Paso, seeking to enjoin them from enforcing certain
transportation code provisions, referred to as the
Blue 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 the
attorney general or any state agency as a party to
the suit, but served a copy of its petition on the at-
torney general, as required for all suits seeking to
declare a statute unconstitutional. Id.; see also Tex.
Civ. Prac. & Rem.Code Ann. 37.006(b) (West
2008) ([I]f the statute ... is alleged to be unconsti-
tutional, the attorney general of the state must also
be served with a copy of the proceeding and is en-
titled to be heard.). The attorney general expressly
declined to participate in the case, stating in a letter
that the local government officials were capable of
adequately presenting the constitutional issues to
the court. El Paso, 1 S.W.3d at 111.

After filing a general denial, however, the local
officials came to the conclusion that the Blue Law
was, in fact, unconstitutional. Id. at 110. The local
officials then negotiated a pretrial agreement con-
sistent with their conclusion that the Blue Law was
unconstitutional, leading the trial court to render
judgment declaring the law unconstitutional and
permanently enjoining all officials charged with en-
forcement of the Blue Law, including the attorney
general, from doing so.
FN5
Id. Upon learning of
the declaratory judgment and permanent injunction,
the attorney general and the Motor Vehicle Divi-
sion of the Texas Department of Transportation
(collectively, the State), unsuccessfully attempted
to 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 party
of record in the underlying suit. Id. The supreme
court 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 been
waived by the attorney general's letter deferring to
the local officials' ability to adequately defend the
constitutionality of the Blue Law. Id. at 11011. In
reaching this conclusion, the supreme court
reasoned that the letter was based on a belief that
the statute would be defended by the Local Offi-
cials statutorily charged with its enforcement. Id.
at 111.

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FN5. In oral argument in this case, the
State took the position that the trial court's
judgment in El Paso had not been binding
on the State. The El Paso court of appeals
decision, however, quoted the trial court's
judgment as permanently enjoining [a]ll
officials authorized by Tex. Trans[p]. Code
728.004 to enforce the Blue Law from
doing so unless the Texas Supreme Court
shall subsequently rule that the statutes are
constitutional. Attorney Gen. v. El Paso
Indep. Auto. Dealers Ass'n, 966 S.W.2d
783, 785 (Tex.App.-El Paso 1998), rev'd
on 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 Attorney
General ... with enforcement of [the Blue
Law]. Accordingly, the Attorney Gener-
al is bound by the judgment. The judg-
ment also declares [the Blue Law] un-
constitutional. Since the Motor Vehicle
Commission Code authorizes the Motor
Vehicle 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 Division
also arguably is bound under the judg-
ment from enforcing its authority....

Id. The supreme court agreed with the
court of appeals on this point. El Paso, 1
S.W.3d at 110.

*441 [7] In the present case, the State contends
that it declined to intervene prior to rendition of
judgment because it was relying on Daly to defend
the constitutionality of family code section 6.204,
just as it relied on the local officials in El Paso. Ac-
cording to the State, it was virtually represented by
Daly until she abandoned her defense of the stat-
ute. The State argues that under the reasoning of
El Paso, it is entitled to intervene on appeal in this
case in order to defend the family code from consti-
tutional attack. The facts of the present case,



however, are distinguishable from El Paso in signi-
ficant ways. The underlying suit in which the State
sought to intervene in El Paso was a suit directly
attacking the constitutionality of the statute. Id. at
110. There is no question that the State has an in-
terest in defending its statutes from attack, and that
the attorney general is entitled to be heard in a suit
challenging the constitutionality of a statute. See
Tex. Civ. Prac. & Rem.Code Ann. 37.006(b).
This case, on the other hand, is not a suit to declare
a statute unconstitutional or enjoin its enforcement,
but a private divorce proceeding involving issues of
property division and child custody. Neither of the
named parties raised any constitutional challenge to
any Texas statute or, for that matter, mounted any
defense 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 had
been challenged. See id. In fact, the first time the
word constitution appears in the clerk's record is
in the State's petition in intervention, filed after
rendition of judgment. The State's claim that Daly
abandoned her defense of the statute fails because
Daly 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 simply
sought to declare the marriage void under section
6.204, or in the alternative, to obtain temporary or-
ders governing the use of the parties' property and
ordering payment of interim attorney's fees as per-
mitted under the family code. See Tex. Fam.Code
Ann. 6.502. A request for relief under a particular
statute is not the equivalent of a defense of that
statute's constitutionality, especially where no con-
stitutional challenge has been raised. Otherwise, the
State would be entitled to intervene in any case in
which statutory relief has been requested, in order
to defend the statute granting such relief from
any potential (but as yet unraised) constitutional at-
tack.

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


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could not possibly have granted the divorce without
determining that section 6.204 is unconstitutional.
See id. 6.204(c) (providing that state agency or
political subdivision may not give effect to right or
claim to any legal protection, benefit, or responsib-
ility asserted as result of same-sex marriage). We
decline to read an implied constitutional challenge
into Naylor's petition for divorce where no such
challenge has been expressly raised, particularly
given the potential for interpreting section 6.204 in
a manner that would allow the trial court to grant a
divorce in this case. One could argue, for example,
that section 6.204 did not prohibit the trial court's
actions because divorce is a benefit of state resid-
ency, rather than a legal protection, benefit, or re-
sponsibility resulting from marriage. See id. One
could also argue that under the plain language of
section 6.204, the trial court is only prohibited from
taking actions that create, recognize, or give effect
to same-sex marriages on a going-forward basis,
so that the granting of a divorce would be permiss-
ible. Naylor *442 has in fact made both of these ar-
guments, either on appeal or in response to the
State's post-judgment plea to the jurisdiction. While
we express no opinion on the merit of these argu-
ments, the fact remains that there are interpretations
of section 6.204 that would allow the trial court to
grant the divorce without finding the statute uncon-
stitutional. Furthermore, any such interpretation
would have to be entertained before a conclusion of
unconstitutionality 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 a
manner that renders it constitutional if it is possible
to do so.). Thus, Naylor's petition for divorce does
not, as the State suggests, represent an implied con-
stitutional challenge.

This case is also distinguishable from El Paso
in that the divorce decree at issue here does not de-
clare any Texas statute unconstitutional, nor does it
enjoin the State from enforcing any statute. Unlike
El Paso, 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 in
this case are the parties of recordDaly and
Naylor. See 1 S.W.3d at 110. While the State ar-
gued at the hearing on the motion to enter judgment
that future litigants might cite this case in support
of the contention that the State waived its ability to
defend section 6.204 from constitutional attack, that
cannot possibly be the case. A divorce proceeding
between two private parties, where no constitution-
al issues were raised or decided and the State was
not 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 section
6.204. 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. See City
of San Benito v. Rio Grande Valley Gas Co., 109
S.W.3d 750, 755 (Tex.2003) (holding that the
most important consideration in virtual-
representation doctrine is whether the appellant is
bound by the judgment).

[8] The State also fails to meet the second vir-
tual-representation doctrine requirement because it
cannot show that its privity of estate, title, or in-
terest appears from the record. The record does not
reflect 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 purported
interest 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 were
taken in violation of section 6.204 does not mean
that the trial court's actions invalidated section
6.204.
FN6


FN6. Whether the trial court actually viol-
ated section 6.204 in granting the divorce
is a matter on which the State and the
parties of record disagree. Because the
State lacks standing to appeal, we lack
subject-matter jurisdiction to resolve this


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question.

[9] Furthermore, the State cannot show an
identity of interest between itself and any named
party to the judgment, as required by the third and
final 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 any
Texas statute. She sought only to declare her mar-
riage void under the family code, or alternatively,
for temporary orders governing the parties' property
division and ordering payment of interim attorney's
fees. *443 As previously discussed, a request for
relief 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 in
El Paso, Daly is not charged with the enforcement
or defense of the validity of state law. Thus, we
cannot conclude that the State is so connected in
law with a party to the judgment as to have such an
identity of interests that the party to the judgment
represented the same legal right. Benson v. Ander-
son, 899 S.W.2d 272, 275 (Tex.App.-Houston [14th
Dist.] 1995, writ denied) (quoting Mobil Explora-
tion & Producing U.S. Inc. v. McDonald, 810
S.W.2d 887, 890 (Tex.App.-Beaumont 1991, writ
denied)).
FN7
Because the State cannot establish the
three required elements of the virtual-representation
doctrine, it has no standing to appeal as a deemed
party of record.

FN7. An argument could be made that
Daly shared the State's interest, not in de-
fending the constitutionality of the family
code, but in the position, alleged in her
pleading seeking to declare the marriage
void, 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 existed
where party of record and would-be inter-
venor shared same ultimate aim of re-
versing underlying judgment). Assuming
without deciding that the State and Daly



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

[10] Even if the State had been a deemed party
under the virtual-representation doctrine, however,
equitable considerations weigh against allowing the
State 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 equitable
considerations do not weigh against allowing [the
non-party] to participate on appeal); see also id. at
729 ([W]hether a would-be intervenor is entitled
to appeal under the virtual-representation doctrine
is an equitable determination that must be decided
on a case-by-case basis.). By entering into the
agreed judgment in this case, Naylor and Daly were
able 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 the
couple's fledgling business enterprise. Naylor and
Daly were also able to settle their differences with
respect to the motion to modify the parent-child re-
lationship, incorporating a 50page agreed order
governing child custody into the divorce decree and
further agreeing to an order on co-parenting coun-
seling. To allow the State to intervene at this stage
of the proceedings would greatly prejudice not only
the existing parties and their creditors, but the child
whose custody situation remains unsettled while
this litigation continues. The State, on the other
hand, is not prejudiced in any way if it is unable to
intervene on appeal, as it is in no way bound by the


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

As the foregoing discussion demonstrates, the
State does not meet any of the required elements of
the virtual-representation doctrine in order to be
deemed a party of record in this case, and equitable
*444 considerations weigh against allowing the
State to intervene on appeal. Because the State has
not properly intervened and cannot be considered a
deemed 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.
FN9

See Novak, 52 S.W.3d at 708 (Standing is a pre-
requisite to subject-matter jurisdiction....).

FN8. Had the State attempted to intervene
prior to the rendition of judgment, the trial
court's decision on whether to grant a
party's motion to strike would have been
reviewed for an abuse of discretion. See
Guaranty Fed. Sav. Bank v. Horseshoe Op-
erating Co., 793 S.W.2d 652, 657
(Tex.1990) ([T]he trial court has broad
discretion 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 posture
of this case, particularly with respect to
the State's intervention, differs from that
of In re J.B., 326 S.W.3d 654
(Tex.App.-Dallas 2010, no pet. h.). In
that case, the court of appeals held that
the trial court abused its discretion in
striking the State's timely intervention
where no party had filed a motion to
strike. Id. at 660 (The court abuses its
discretion by striking an intervention in
the absence of a motion to strike.); see
also id. at 660 (Lack of a justiciable in-
terest to intervene must be raised by a



motion to strike or the defense is
waived.). But see Dunker, 799 S.W.2d
at 336 (holding that rule governing mo-
tion-to-strike procedure does not apply
to interventions attempted after rendition
of 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.

CONCLUSION
Because the State lacks standing to appeal, we
dismiss this appeal for want of jurisdiction.

Tex.App.Austin,2011.
State v. Naylor
330 S.W.3d 434

END OF DOCUMENT

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TAB 2


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

Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. 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 the
declaration 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 be
made 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

Uniform Law:

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's Ann.Civ.St. art. 2524-1, 11.


CROSS REFERENCES

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TAB 3


Page 1
1 S.W.3d 108, 42 Tex. Sup. Ct. J. 1128
(Cite as: 1 S.W.3d 108)

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 and
others, seeking to enjoin them from enforcing
Blue Law that prohibited the sale of cars on con-
secutive weekend days, and to have the statutes de-
clared unconstitutional. The District Court, El Paso
County, Reed Leverton and Sam Callan, JJ., de-
clared the Blue Law unconstitutional, and enjoined
all officials authorized under the Transportation
Code from enforcing their provisions. The District
Court denied the Attorney General and the Motor
Vehicle Board's posttrial motions to intervene. City
and 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 General
and the Board's appeal, and the city and others
thereafter voluntarily dismissed their appeal. Attor-
ney General and Board appealed. The Supreme
Court held: (1) Attorney General and Board had
standing to appeal via the doctrine of virtual repres-
entation; (2) Attorney General and Board did not
waive their right to appeal; and (3) mistake in ap-
peal caption did not deprive the Board of the right
to appeal.

Reversed and remanded.

West Headnotes

[1] Declaratory Judgment 118A 392.1

118A Declaratory Judgment
118AIII Proceedings


118AIII(H) Appeal and Error
118Ak392 Appeal and Error
118Ak392.1 k. In General. Most Cited
Cases
Attorney General and Motor Vehicle Board
were parties pursuant to doctrine of virtual repres-
entation, and thus had standing to appeal trial
court's judgment declaring unconstitutional statutes
that prohibited the sale of cars on consecutive
weekend days, though the Attorney General and the
Board declined to participate when the suit was first
filed. V.T.C.A., Transportation Code 728.001
728.004.

[2] Appeal and Error 30 138

30 Appeal and Error
30IV Right of Review
30IV(A) Persons Entitled
30k137 Parties of Record
30k138 k. In General. Most Cited Cases

Appeal and Error 30 148

30 Appeal and Error
30IV Right of Review
30IV(A) Persons Entitled
30k148 k. Persons Other Than Parties or
Privies. Most Cited Cases
Generally, appeal is available only to parties of
record; however, an exception exists when the ap-
pellant is deemed to be a party under the doctrine of
virtual representation.

[3] Appeal and Error 30 148

30 Appeal and Error
30IV Right of Review
30IV(A) Persons Entitled
30k148 k. Persons Other Than Parties or
Privies. Most Cited Cases
To 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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(Cite as: 1 S.W.3d 108)
its privity of estate, title, or interest appears from
the record; and (3) there is an identity of interest
between the appellant and a party to the judgment.

[4] Declaratory Judgment 118A 392.1

118A Declaratory Judgment
118AIII Proceedings
118AIII(H) Appeal and Error
118Ak392 Appeal and Error
118Ak392.1 k. In General. Most Cited
Cases
Attorney General's letter declining participa-
tion in suit challenging constitutionality of Blue
Law prohibiting the sale of cars on consecutive
weekend days did not waive Attorney General and
Motor Vehicle Board's right to appeal, pursuant to
doctrine of virtual representation, trial court judg-
ment declaring the Blue Law unconstitutional,
where the letter was issued with the belief the
named parties would defend the constitutionality of
the statutes, and the letter did not surrender any ar-
gument as to the statutes' constitutionality.
V.T.C.A., Transportation Code 728.001
728.004.

[5] Estoppel 156 52.10(2)

156 Estoppel
156III Equitable Estoppel
156III(A) Nature and Essentials in General
156k52.10 Waiver Distinguished
156k52.10(2) k. Nature and Elements
of Waiver. Most Cited Cases

Estoppel 156 52.10(3)

156 Estoppel
156III Equitable Estoppel
156III(A) Nature and Essentials in General
156k52.10 Waiver Distinguished
156k52.10(3) k. Implied Waiver and
Conduct Constituting Waiver. Most Cited Cases
A party's express renunciation of a known right
can establish waiver; silence or inaction, for so long
a period as to show an intention to yield the known



right, is also enough to prove waiver.

[6] Estoppel 156 52.10(3)

156 Estoppel
156III Equitable Estoppel
156III(A) Nature and Essentials in General
156k52.10 Waiver Distinguished
156k52.10(3) k. Implied Waiver and
Conduct Constituting Waiver. Most Cited Cases
Waiver is largely a matter of intent; thus, for
implied waiver to be found through a party's ac-
tions, intent must be clearly demonstrated by the
surrounding facts and circumstances.

[7] Estoppel 156 119

156 Estoppel
156III Equitable Estoppel
156III(G) Trial
156k119 k. Questions for Jury. Most
Cited Cases
Although waiver is ordinarily a question of
fact, when the facts and circumstances are admitted
or clearly established, the question becomes one of
law.

[8] Declaratory Judgment 118A 392.1

118A Declaratory Judgment
118AIII Proceedings
118AIII(H) Appeal and Error
118Ak392 Appeal and Error
118Ak392.1 k. In General. Most Cited
Cases
That appeal was filed in the name of the Motor
Vehicle Division, rather than in the name of the
Motor Vehicle Board, did not deprive the Board of
standing to appeal trial court judgment declaring
Blue Law prohibiting the sale of cars on consec-
utive weekend days unconstitutional, though the
Board and the Motor Vehicle Division were not
technically the same, where their interests were vir-
tually identical, and no confusion resulted from the
misnomer. V.T.C.A., Transportation Code
728.001728.004.

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[9] Declaratory Judgment 118A 392.1

118A Declaratory Judgment
118AIII Proceedings
118AIII(H) Appeal and Error
118Ak392 Appeal and Error
118Ak392.1 k. In General. Most Cited
Cases
Attorney General and Motor Vehicle Board
preserved error for appellate review, in appeal of
judgment declaring Blue Law prohibiting the sale
of cars on consecutive weekend days unconstitu-
tional, by timely filing posttrial motions stating
their grounds for setting aside the judgment and for
intervening; the trial court's alleged error appeared
in the record and no formal bill of exception was
required. V.T.C.A., Transportation Code
728.001 728.004; Rules App.Proc., Rules 33.1(a),
33.2.

[10] Declaratory Judgment 118A 392.1

118A Declaratory Judgment
118AIII Proceedings
118AIII(H) Appeal and Error
118Ak392 Appeal and Error
118Ak392.1 k. In General. Most Cited
Cases
Named parties' voluntarly dismissal of their ap-
peal from judgment declaring Blue Law prohibit-
ing the sale of cars on consecutive weekend days
unconstitutional did not affect the Attorney General
and Motor Vehicle Board's ability to appeal under
the doctrine of virtual representation; the doctrine
did not require that the named parties perfect an ap-
peal. V.T.C.A., Transportation Code 728.001
728.004.

*109 Toni Hunter, Linda B. Secord, Douglas Fraser
, John Cornyn, Andy Taylor, David A. Talbot, Jr.,
Karen Watson Kornell, Austin, for Petitioner.

Thomas F. Keever, Corey W. Haugland, Don W.
Minton, Jose R. Rodriguez, El Paso, for Respond-
ent.



PER CURIAM.
In this case, we consider whether the Texas De-
partment of Transportation's Motor Vehicle Board
(the Board) waived its right to appeal a trial court
judgment holding Texas Transportation Code sec-
tions 728.001 through 728.004 unconstitutional and
enjoining the enforcement of those *110 provisions.
We hold that the Board did not waive its right to
appeal. Accordingly, we reverse the court of ap-
peals' judgment dismissing the Board's appeal and
remand the case to that court to address the merits
of the trial court's decision.

Sections 728.001 through 728.004 of the
Transportation Codecommonly known as the
Blue Lawmake it illegal to sell cars on consec-
utive weekend days. TEX. TRANSP. CODE
728.001 728.004. The El Paso Independent Auto-
mobile Dealers Association (EPIADA), an asso-
ciation of used car dealers, filed suit against the El
Paso District, City, and County Attorneys (Local
Officials), seeking to enjoin them from enforcing
the Blue Law and to have the law declared uncon-
stitutional. Although the suit named neither the At-
torney General nor its client-agency, the Board, as
defendants, EPIADA served a copy of its petition
on the Attorney General, as required by law. See
TEX. CIV. PRAC. & REM.CODE 37.006(b)
([I]f the statute ... is alleged to be unconstitutional,
the attorney general of the state must also be served
with a copy of the proceeding....). By letter dated
October 24, 1997, the Attorney General declined to
participate in the case at trial.

The Local Officials filed a general denial on
November 17, 1997, but upon researching their de-
fense, came to believe that the Blue Law was, in
fact, unconstitutional. Without notifying the Attor-
ney General, the Local Officials negotiated a pretri-
al agreement with EPIADA for findings of fact and
conclusions of law consistent with their view of the
Blue Law's unconstitutionality. On December 23,
1997, following an evidentiary hearing, the trial
court rendered judgment declaring the Blue Law
unconstitutional, and permanently enjoined all of-


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ficials authorized under the Transportation Code
from enforcing its provisions.

The Attorney General and the Board filed post-
judgment motions in an attempt to intervene; these
motions were denied by the trial court. The Local
Officials appealed, despite their belief in the Blue
Law's unconstitutionality, in an effort to preserve
an avenue for the Attorney General and the Board
to perfect an appeal. EPIADA moved to dismiss the
Attorney General and the Board on the grounds that
they were not parties to the original suit. The court
of appeals held that the Attorney General and the
Board had the right to appeal under the doctrine of
virtual representation, but concluded that the Attor-
ney General had waived this right by its October
24, 1997 letter. Attorney General of Texas v. El
Paso Independent Automobile Dealers Ass., Inc.
966 S.W.2d 783, 78586 (Tex.App.El Paso
1998). On May 21, 1998, after the court of appeals
issued its opinion dismissing the appeal by the
Board and the Attorney General, the Local Officials
voluntarily dismissed their appeal.

[1][2][3] Generally, appeal is available only to
parties of record. However, an exception exists
when the appellant is deemed to be a party under
the doctrine of virtual representation. See, e.g.,
Gunn v. Cavanaugh, 391 S.W.2d 723, 725
(Tex.1965); Jernigan v. Jernigan, 677 S.W.2d 137,
140 (Tex.App.Dallas 1984, no writ). To claim
virtual representation, an appellant must show that:
(1) it is bound by the judgment; (2) its privity of es-
tate, title, or interest appears from the record; and
(3) there is an identity of interest between the ap-
pellant and a party to the judgment. See Continental
Cas. Co. v. Huizar, 740 S.W.2d 429, 432
(Tex.1987) (Kilgarlin, J., concurring). The court of
appeals concluded that the Attorney General and
the Board satisfied this test, but nevertheless held
that the Attorney General and the Board waived
their right to appeal pursuant to the doctrine. 966
S.W.2d at 78586.

[4][5][6][7] Although we agree that the doc-
trine of virtual representation applies, we disagree



with the court of appeals' holding that the Board's
right to appeal was waived by the Attorney Gener-
al's letter declining to participate in the trial court
*111 proceedings. The law on waiver is well estab-
lished. A party's express renunciation of a known
right can establish waiver. Silence or inaction, for
so long a period as to show an intention to yield the
known right, is also enough to prove waiver. Ten-
neco Inc. v. Enterprise Prods. Co., 925 S.W.2d
640, 643 (Tex.1996) (citation omitted). Waiver is
largely a matter of intent; thus, for implied waiver
to be found through a party's actions, intent must be
clearly demonstrated by the surrounding facts and
circumstances. See EZ Pawn Corp. v. Mancias, 934
S.W.2d 87, 89 (Tex.1996) (applying to waiver of
arbitration rights). Although waiver is ordinarily a
question of fact, when the facts and circumstances
are admitted or clearly established, the question be-
comes one of law. Tenneco, 925 S.W.2d at 643.
Here, the facts are undisputed: The waiver argu-
ment rests squarely on the substance of the Attor-
ney General's letter.

After conversations with the Local Officials,
the Attorney General issued the letter, stating:

Even though the constitutionality of a state
statute is involved in this cause, the Attorney
General believes that the [Local Officials] can
adequately present the issues to the court. For
this reason, the Attorney General respectfully de-
clines to participate in this case.

In accordance with the Attorney General's
stated belief, the Local Officials filed a general
denial to EPIADA's claims on November 17, 1997.
But the Local Officials reversed course and elected
not to defend the statute without informing the At-
torney General until after the trial court entered
judgment.

The letter demonstrates the Attorney General's
belief that the Local Officials would mount a de-
fense to the Blue Law's constitutionality. Nothing
about the letter indicates an intention to expressly
renounce or otherwise yield any right the Attorney


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General had to have the case fully defended or sub-
sequently appealed. It cannot be presumed that the
Attorney General or the Board forfeited any right to
appeal the agreed judgment, of which they were not
made aware until judgment was entered.

EPIADA relies on our decision in Continental
Casualty, 740 S.W.2d at 430, to argue that the At-
torney General waived its right to appeal, and thus
the Board's right, by electing to let others decide
the fate of the Blue Law. This reliance is mis-
placed. In Continental Casualty, the nonparty in-
surer waived its right to appeal a judgment against
its insured by paying an amount equal to policy
limits on the litigated claim. Id. at 430. This affirm-
ative act directly contravened rights the insurer sub-
sequently wished to claim on appeal. In contrast,
the Attorney General's letter did not surrender any
argument as to the Blue Law's constitutionality.
Rather, as stated, the letter was based on a belief
that the statute would be defended by the Local Of-
ficials statutorily charged with its enforcement.
Thus, there was no express renunciation or volun-
tary relinquishment of a known right. Therefore, we
reverse the court of appeals' judgment that the At-
torney General's letter declining to participate in the
trial court proceedings waived the right of the At-
torney General and the Board to appeal under the
virtual representation doctrine.

[8] EPIADA also challenges the Board's stand-
ing to bring this petition for review because the ap-
peal was filed in the name of the Motor Vehicle Di-
vision rather than the Motor Vehicle Board. At
most, this presents a case of misnomer that does not
affect the Board's standing. Our policy has been to
construe the Rules of Appellate Procedure liberally,
so that decisions turn on substance rather than pro-
cedural technicality. See City of San Antonio v.
Rodriguez, 828 S.W.2d 417, 418 (Tex.1992);
Crown Life Ins. Co. v. Estate of Gonzalez, 820
S.W.2d 121, 121 (Tex.1991). In Rodriguez, we
cited with approval a case factually similar to this
one. See *112El Paso Cent. Appraisal Dist. v. Mon-
trose Partners, 754 S.W.2d 797, 799



(Tex.App.El Paso 1988, writ denied). There, the
chief appraiser who filed the appeal was not a
named party to the case, although his interests were
so intertwined with the party-appellant's as to
essentially produce an alter ego relationship.
Montrose Partners, 754 S.W.2d at 799. Because no
confusion or disadvantage arose, the court held that
the appeal was valid, and should not be defeated
on a technical construction of the rules. Id. This
case is analogous. Although the Board and the Mo-
tor Vehicle Division are not technically the same,
FN1
their interests are virtually identical under the
Motor Vehicle Commission Code. TEX.REV.CIV.
STAT. ANNN. art. 4413(36) (Vernon Supp.1999).
Moreover, EPIADA points to no confusion wrought
by the Board's petition, nor is any apparent from the
record.

FN1. Both the Board and the Division refer
to the former Texas Motor Vehicle Com-
mission, which was incorporated into the
Texas Department of Transportation in
1991. See Act of Aug. 9, 1991, 72
nd
Leg.,
1
st
C.S., ch. 7, 1A.011A.08, 1991
Tex. Gen. Laws 226, 23739. Confusion in
nomenclature arose with the incorporation
and continues to persist (e.g., the Motor
Vehicle Commission Code establishes a
Director of the Motor Vehicle Board, but
provides for judicial review of actions by
the Director of the Motor Vehicle Divi-
sion; both refer to the same person.
TEX.REV.CIV. STAT. ANN. art.
4413(36), 1.03(10) and 7.01(b) (Vernon
Supp.1999)).

[9] EPIADA's argument that the Board failed to
preserve error is also without merit. The post-trial
motions of the Board and the Attorney General
were timely filed and stated their grounds for set-
ting aside the judgment and intervening, and a rul-
ing was obtained when these motions were denied
by the trial court. See TEX.R.APP. P. 33.1(a). Con-
trary to EPIADA's contention, no formal bill of ex-
ception was required because the trial court's al-


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leged error appears in the record. See TEX.R.APP.
P. 33.2.

[10] Finally, EPIADA argues that the Local
Officials' voluntary dismissal of their appeal
renders the Board's appeal moot. The Local Offi-
cials initially appealed the trial court's judgment to
preserve an avenue of appeal by the Attorney Gen-
eral, and they were parties to the appeal with the
Board and the Attorney General. But after the court
of appeals dismissed the Board and the Attorney
General, the Local Officials dropped their appeal.
The Local Officials' voluntary dismissal, however,
does not affect the ability of the Board to appeal
under the doctrine of virtual representation. This
doctrine does not require that the named defendants
perfect an appeal; their subsequent voluntary dis-
missal is irrelevant.

Accordingly, pursuant to Texas Rule of Appel-
late Procedure 59.1 and without hearing oral argu-
ment, we reverse that portion of the court of ap-
peals' judgment dismissing the Motor Vehicle
Board's appeal and remand the case to the court of
appeals so that the decision of the trial court may be
reviewed on its merits.

Tex.,1999.
Motor Vehicle Bd. of Tex. Dept. of Transp. v. El
Paso Independent Auto. Dealers Ass'n, Inc.
1 S.W.3d 108, 42 Tex. Sup. Ct. J. 1128

END OF DOCUMENT



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