Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court

No. 11-0114


Oral argument was held on November 5, 2013. The Court issued an opinion resolving the case on June 19, 2015. File Closed

In the news...

Tracking 8 articles about this case.

June 19, 2015

Texas AG Can't Intervene in Same-Sex Couple's Divorce

from Texas Tribune

The Court has issued opinions:

June 19, 2015

Texas Supreme Court Upholds Same-Sex Divorce

from Houston Chronicle

June 19, 2015

Court upholds gay divorce from Travis County

from Austin American-Statesman

June 19, 2015

Texas’s same-sex divorce cases result in a deep divide — over the power of the Attorney General [Jun. 19, 2015]

from SCOTXblog

The article also mentions:
  • August 23, 2013

    Texas Supreme Court takes same-sex divorce cases

    from Austin American-Statesman

    The article also mentions:
  • August 23, 2013

    The Texas Supreme Court accepts two “gay divorce” cases for argument this fall

    from SCOTXblog

    The article also mentions:
  • August 23, 2013

    8 Decisions, 10 Grants, and More [Aug. 23, 2013]

    from SCOTXblog

    This article also mentions 17 other cases.

    May 25, 2011

    The Texas same-sex divorce cases have attracted their first amicus brief

    from SCOTXblog

    The article also mentions:
  • Opinions

    June 19, 2015


    Justice Brown delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Johnson, and Justice Boyd joined. PDF


    Justice Devine delivered a dissenting opinion. PDF


    Justice Willett delivered a dissenting opinion, in which Justice Guzman and Justice Devine joined. PDF


    Justice Boyd delivered a concurring opinion. PDF

    Court of Appeals

    Appellate District:3rd Court of Appeals
    Outcome Below:Dismissed - WOJ
    COA Docket No.:03-10-00237-CV
    Opinion Author:Honorable Diane M. Henson

    Trial Court

    Trial Court:126th District Court
    Trial Judge:Honorable Scott H. Jenkins
    Trial Docket:D-1-FM-09-000050

    Entries on SCOTX Orders Lists

    Docket Entries

    Date Event Outcome  
    2015-07-30 Mandate issued  
    2015-07-27 Amicus Curiae Letter Received  
    2015-06-30 Amicus Curiae Letter Received  
    2015-06-19 Dissenting opinion issued.   Issued
    2015-06-19 Dissenting opinion issued.   Issued
    2015-06-19 Court approved judgment sent to attorneys of record Issued
    2015-06-19 Opinion issued   Court of Appeals' judgment affirmed
    2015-06-19 Concurring Opinion issued.   Issued
    2015-05-20 Amicus Curiae Letter Received  
    2015-05-20 Amicus Curiae Letter Received  
    2015-04-22 Amicus Curiae Letter Received  
    2015-04-16 Amicus Curiae Letter Received  
    2015-04-15 Amicus Curiae Letter Received  
    2015-04-08 Amicus Curiae Letter Received  
      This case was awaiting the Court's decision after oral argument between January 5, 2015 and April 8, 2015.  
    2015-01-05 Designation of Lead Counsel (Petitioner)  
      This case was awaiting the Court's decision after oral argument between November 5, 2013 and January 5, 2015.  
    2013-11-05 Oral argument  
    2013-10-22 Letter Filed (Respondent)  
    2013-09-25 Oral Argument Submission Form from Attorney received (Respondent)  
    2013-09-23 Oral Argument Submission Form from Attorney received (Petitioner)  
    2013-08-27 Notice from Counsel of a change in address (Respondent)  
    2013-08-23 Case set for oral argument   Case set for oral argument
    2013-08-23 Petition for Review disposed Filing granted
    2013-08-23 Petition for Review granted
    2013-08-06 Supplemental Brief filed (Petitioner)  
    2013-08-06 Amicus Curiae Brief received  
    2013-07-29 Supplemental Brief filed (Respondent)  
    2013-07-18 Supplemental Brief filed (Petitioner)  
    2013-07-03 Brief on the Merits Requested (Expedited Briefing Requested)  
      This case was pending on merits briefs between March 25, 2013 and July 3, 2013.  
    2013-03-25 Notice from Counsel of a change in address (Respondent)  
      This case was pending on merits briefs between July 26, 2012 and March 25, 2013.  
    2012-07-26 Notice from Counsel of a change in address (Petitioner)  
      This case was pending on merits briefs between February 3, 2012 and July 26, 2012.  
    2012-02-03 Phone call from Clerk's Office (Respondent)  
      This case was pending on merits briefs between December 6, 2011 and February 3, 2012.  
    2011-12-06 Amicus Curiae Brief received  
    2011-11-08 Case Record Filed  
    2011-11-01 Reply brief filed (Petitioner)  
    2011-10-17 Brief filed (Respondent)  
    2011-10-06 Motion for Extension of Time disposed. (Respondent)   Filing granted
    2011-10-03 Motion for extension of time to file brief. (Respondent)  
    2011-09-19 Brief filed (Petitioner)  
    2011-08-22 Case Record Filed  
    2011-08-19 Record Requested in Petition for Review
    2011-08-19 Brief on the Merits Requested  
      This case was waiting for a decision about briefing or a possible grant between June 27, 2011 and August 19, 2011.  
    2011-06-27 Response to Petition filed (Respondent)  
    2011-05-26 Supreme Court of Texas Requested Response  
    2011-05-16 Address Change (Respondent)  
    2011-05-13 Amicus Curiae Brief received  
    2011-04-26 Case forwarded to Court
    2011-04-25 Notice of vacation dates. (Respondent)  
    2011-04-20 Response to Petition for Review waived (Respondent)  
    2011-04-18 Response to Petition for Review waived (Respondent)  
    2011-03-21 Appendix Filed (Petitioner)  
    2011-03-21 Petition for Review filed (Petitioner)  
    2011-02-18 Motion for Extension of Time to File Petition for Review disposed (Petitioner)   Filing granted
    2011-02-15 Motion for Extension of Time to File Petition for Review filed (Petitioner)  


    Party Counsel Role
    Daly, Sabina
    Mr. Robert B. Luther
    Naylor, Angelique S.
    Mr. Jason P. Steed
    Mr. James J. Scheske
    Ms. Jennifer Renee Cochran
    State of Texas
    Mr. Michael P. Murphy
    Mr. William J. "Bill" Cobb III
    Mr. James D. Blacklock
    Attorney General Greg W. Abbott
    Mr. Daniel T. Hodge
    Mr. David C. Mattax
    Mr. Cleve W. Doty
    Mr. Jonathan F. Mitchell

    Amici Curiae

    Amicus Curiae Counsel
    Branch, Daniel H.
    Daniel H. Branch
    Chisum, Warren
    Mr. Kelly J. Shackelford

    The AG lacked standing, on this record, to challenge a same-sex divorce issued before he intervened in the case

    Let's start with the questions this case does not reach. There is no holding here about the constitutional status of same-sex marriage. Nor does the Court reach the question whether a Texas court can as a general matter grant a same-sex divorce to a couple that was married in another state. A district court that grants such a divorce (or, as happened in Travis County in February 2015, a marriage license) is on no different legal footing after these opinions than it was before.

    The Texas Supreme Court's analysis may not have longlasting implications for same-sex marriage or divorce, but it could be crucial to how the next hot-button political issue is litigated by the State.

    This challenge was brought by the Attorney General, who was not (obviously) a party to this marriage or (less obviously) a party to the underlying lawsuit. The same-sex couple sought a divorce and, after some disputes being aired at a hearing, eventually agreed on terms. The judge, recognizing that it was unusual to grant a same-sex divorce, nonetheless entered judgment on the divorce decree reflecting the parties' agreed terms. As it turns out, members of the attorney general's office were observing this proceeding. But the office did not seek to formally intervene in the case until after the judgment (divorce decree) was announced. The trial court did not reopen the case to permit that intervention.

    The threshold question is whether the Attorney General, although a stranger to this divorce, can pursue appellate remedies to challenge its validity. The Court, divided 5-3, held that at least on the particular circumstances presented here, he could not.

    The Attorney General used two different procedural tools to raise the issue: (1) trying to intervene in the divorce case itself, a request that was denied by the trial court, and (2) eventually seeking a writ of mandamus directly from the Texas Supreme Court. Matters of timing became crucial. The AG had not asked to intervene until after the decree was granted. When the trial court did not reopen the case so the AG could participate, the AG filed an appeal to the intermediate court of appeals. When the court of appeals ruled against the AG, he then sought review in the Texas Supreme Court, adding a second basis for jurisdiction—a request for a writ of mandamus arguing that the trial judge exceeded his jurisdiction.

    Whether the AG was a proper party to the appeal turned out to be dispositive.

    The Court divided 5-3 on this question, ultimately deciding against the AG. The Court held that the AG was not a party to the appeal, either by virtue of Texas statute or a common-law doctrine of virtual representation. The Court observed that the AG had actual notice of the divorce proceedings, with at least one member of the office attending, but chose not to intervene before judgment. It held that, given those circumstances, the trial court was within its discretion not to reopen the divorce decree it had already granted. 1

    The AG argued that, even if it did not successfully intervene as a party in the trial court, it should be considered a virtual party for purposes of appeal. The AG's office conceded that it did not meet the usual test for "virtual representation," which would let one party step into the shoes of another. Instead, the office argued that it should be afforded that same status for reasons of equity based on the importance of the issue and the AG's unique role in defending state law. The Court rejected that argument, reasoning that equity could not be used to create standing where none existed.

    As for the writ of mandamus, the Court held that it simply came too late. The AG had conducted the full appeal in the court of appeals without bringing the mandamus issue to its attention. In effect, the Court held that this theory was waived by not presenting it to the court of appeals below.

    Although the Court ruled 5-3 that it lacked jurisdiction to decide the merits of the case, several of the opinions spoke to the question—and to the lack of precedent that the Court meant to set with today's case. The majority opinion, for example, said that "even if the State could establish standing," the abbreviated way the case was litigated "would have [left the Court] little choice but to remand" the substantive issues to be more fully developed below. Justice Boyd wrote a separate concurrence underscoring that, precisely because the AG was not a party, any legal issues implicit in this divorce decree were not binding on the State so as to set precedent for any future cases. For that reason, Justice Boyd explained, the only appellate opinion speaking to the issue was that of the Dallas Court of Appeals in another case, an opinion holding that any same-sex divorce would violate Texas law. Justice Devine wrote his own separate dissent, delving into the substance of the same point.

    Justice Willett's dissent spoke to the procedural question, concluding that "[i]ntervention is an equitable doctrine, and I simply balance the equities differently." He noted that, if the State's position about the substance turns out to be correct (that the courts actually lack subject-matter jurisdiction to issue a divorce, in this situation), there may still be uncertainty about the validity of this divorce. Those complications are left for another day, if they are not swept aside by changes in federal law.

    1. Future cases may turn on whether the AG's office has a similar opportunity to intervene or whether, in the view of an appellate court, the trial court was attempting to evade its involvement. There is a hint of this in how Justice Willett's dissent discusses another, still-pending case challenging the issuance of a same-sex marriage license time-stamped one minute after the action was filed.