FILED
15-0135
5/13/2015 3:31:19 PM
tex-5271831
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
No. 15-0135
In the
Supreme Court of Texas
_______________________________________
IN RE STATE OF TEXAS,
Relator.
_______________________________________
SUPPLEMENTAL MANDAMUS RECORD
___________________________________
On Petition for Writ of Mandamus
Probate Court No. 1, Travis County, Texas
___________________________________
Craig Hopper Kurt Kuhn
State Bar No. 00794947 State Bar No. 24002433
Brian Thompson Lisa Bowlin Hobbs
State Bar No. 24051425 State Bar No. 24026905
HOPPER MIKESKA, PLLC KUHN HOBBS PLLC
400 West 15th Street, Suite 408 3307 Northland Drive, Suite 310
Austin, Texas 78701 Austin, Texas 78731
(512) 615-6195 (512) 476-6005
(512) 610-1306 (fax) (512) 476-6002 (fax)
bthompson@hoppermikeska.com Kurt@KuhnHobbs.com
Lisa@KuhnHobbs.com
Counsel for Real Party in Interest Sonemaly Phrasavath
May 13, 2015
TAB DATE DESCRIPTION
VOLUME 1
Affidavit of Kurt H. Kuhn
A 02/17/2015 Order on Special Exceptions and Motion to Dismiss
B 11/06/2014 Sonemaly Phrasavath’s Response to Special Exceptions and
Motion to Dismiss and Motion for Continuance
C 09/18/2014 Application for Determination of Heirship and Issuance of
Letters Independent Administration
D 09/18/2014 (1) Contest to Applications James Powell and Alice Huseman’s
Application for Determination of Heirship and Issuance of
Letters Independent Administration and (2) Counter Application
to Determine Heirship, for Appointment of Dependent
Administrator and Issuance of Letters of Administration
E 10/15/2014 Applicants James Powell and Alice Huseman’s Special
Exceptions to, and Motion to Dismiss, Sonemaly Phrasavath’s
(1) Contest to Applications James Powell and Alice Huseman’s
Application for Determination of Heirship and Issuance of
Letters Independent Administration and (2) Counter Application
to Determine Heirship, for Appointment of Dependent
Administrator and Issuance of Letters of Administration
F 11/07/2014 Sonemaly Phrasavath’s Supplemental Response to Special
Exceptions and Motion to Dismiss and Motion for Continuance
G 02/17/2015 Applicants James Powell and Alice Huseman’s Brief In Support
Of Their Special Exceptions and Motion to Dismiss
H 02/25/2015 Supplement to the Record: Affidavit Regarding Court Notice of
the Constitutional Challenge of a State Statute under Texas
Government Code § 402.010
I 02/18/2015 Plea in Intervention of the State of Texas
AFFIDAVIT OF KURT H. KUHN
STATE OF TEXAS §
§
COUNIY OF TRAVIS §
BEFORE ME, the undersigned authority, on this day personally appeared Kurt
H Kuhn, who being by me duly sworn, stated as follows:
1. My name is Kurt H Kuhn. I am of sound mind, I am over twenty-one
(21) years of age, and I am competent to make the statements herein. I have reviewed
the pleadings and orders related to this matter and have personal knowledge regarding
the facts set forth herein.
2. I am an attorney of record for the Real Party in Interest Sonemaly
Phrasavath in the original proceeding styled as In re State if Tex as, No. 15-0135, in the
Supreme Court of Texas.
3. This Supplemental Mandamus Record contains true and correct copies
of the documents as described in the master index included with the Supplemental
Mandamus Record.
4. The documents in the Supplemental Mandamus Record have been
redacted to comply with the rules.
SUBSCRIBED AND SWORN TO before me this 13th day of May, 2015, to
certify which witness my hand and seal of office.
Dated: May 13, 2015 Respectfully submitted,
~~- --~
~
Craig Hopper Kurt Kuhn
State Bar No. 00794947 State Bar No. 24002433
Brian Thompson Lisa Bowlin Hobbs
State Bar No. 24051425 State Bar No. 24026905
HOPPER MIKESKA, PLLC KUHN HOBBS PLLC
400 West 15th Street, Suite 408 3307 Northland Drive, Suite 310
Austin, Texas 78701 Austin, Texas 78731
(512) 615-6195 (512) 476-6003
(512) 610-1306 (fax) (512) 476-6002 (fax)
bthompson@ hoppermikeska.com Lisa@ K uhnHobbs.com
Kurt@ KuhnHobbs.com
CoUNSEL FOR REAL PARTY IN INTEREST
CERTIFICATE OF SERVICE
I hereby certify that, on May 13, 2015, and in compliance with the Texas Rules
of Appellate Procedure, a true and correct copy of the foregoing supplemental record
index has been served as follows:
Hon. Guy Herman
Judge of Probate Omrt No. 1, Travis County, Texas via email
Probate Court No. 1
1000 Guadalupe, Room 217
Austin, Texas 78701
Respondent
Michael B. Knisely
Jason S. Scott via e-S ervice
Osborne, Helman, Knebel, DeLeery
301 Congress Avenue, Suite 1910
Austin, Texas 78701
Douglas A Booth
Law Offices of Douglas A Booth via e-Service
3801 S. Capital of Texas Highway, Suite 255
Austin, Texas 78704
Counsel for Real Parties in Interest,
Unknown Heirs of Stella Marie Powell,
James Powell, and Alice Huseman
MichaelP.Murphy
Assistant Solicitor General via e-Service
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Counsel for Relator,
State ofTexas
Kurt Kuhn
Tab A
No. C-1-PB-14-001695
ESTATE OF § IN THE PROBATE COURT
~ ····~~:·
§ .. · ,•'
STELLA MARIE POWELL, § NUMBER I . ~.... :··:~
..·.·.
§
DECEASED § TRAVIS COUNTY, TEMS
--, ./ . >~
ORDER ON SPECIAL EXCEPTIONS AND MOTION TO DISMISS
On this day, the Court considered Applicants James Powell and Alice Huseman~s Sp~~J~l
··:.r
Exceptions to, and Motion to Dismiss, Sonemaly Phrasavath' s (I) Contest to Applicants'
Application for Determination of Heirship and Issuance of Letters of Independent
Administration and (2) Counter-application to Determine Heirship, for Appointment of
Dependent Administrator and Issuance of Letters of Administration (collectively, the "Special
Exceptions and Motion to Dismiss"). Having considered the Special Exceptions and Motion to
Dismiss, the response and supplemental response filed by Sonemaly Phrasavath, the arguments
of counsel, and all other papers on file in this matter, the Court hereby DENIES the Special
Exceptions in their entirety.
In denying the Special Exceptions, the Court finds that Texas Family Code § 2.401,
Texas Family Code § 6.204(b), and Article I, § 32 of the Texas Constitution are unconstitutional
,insofar as they restrict marriage in the State of Texas to a union of a man and woman and
prohibit the creation or recognition of marriage to same-sex couples, because such restrictions
and prohibitions violate the Due Process Clause and the Equal Protection Clause of the
Fourteenth Amendment to the Unites States Constitution.
Signed on February a, 2015.
Tab B
.-.
Filed: 11/6/2014 5:23:19 PM
Dana DeBeauvoir
Travis County Clerk
C-1-PB-14-00 1695
No. C-1-PB-14-001695
Abram Gonzalez
ESTATE OF § IN THE PROBATE COURT
§
STELLA MARIE POWELL, § NUMBER I
§
DECEASED § TRAVIS COUNTY, TEXAS
SONEMALY PHRASAVATH'S RESPONSE TO SPECIAL EXCEPTIONS AND
MOTION TO DISMISS AND MOTION FOR CONTINUANCE
Sonemaly Phrasavath ("Sonemaly'') hereby files this Response to the Special Exceptions
and Motion to Dismiss filed by James Powell and Alice Huseman. Sonernaly also files, in the
alternative, a Motion for Continuance. In support of her Response and the Motion for
Continuance, Sonemaly would show the Court the following:
I.
Introduction
Stella Powell ("Stella"), the decedent herein, and Sonemaly were in a committed,
same-sex relationship for approximately eight years and were married for almost six years. Like
any other married couple, they resided in the same home, celebrated their love for each other
before friends and family at a marriage ceremony, and lived openly as spouses. During Stella's
final illness, Sonemaly cared for Stella at their home until Stella ultimately lost her battle with
cancer at the much too young age of 53.
Sonemaly has filed an application for heirship in this matter as Stella's common law
spouse. James Powell and Alice Huseman (collectively, "Movants"), who are Stella's surviving
sublings, have filed special exceptions and a motion to dismiss Sonemaly's application based on
Texas's laws banning the recognition of same-sex marriages. These laws, like those in many
other states, have been struck down since the United States Supreme Court's landmark decision
- -
in U.S. v. Windsor. In fact, since Windsor, the vast majority of courts to entertain a challenge to
same..sex marriage bans have struck down such bans as unconstitutionaL Sonemaly seeks the
same remedy from this Court and asks that the Court deny Movants' special exceptions and
motion to dismiss.
In the alternative, because Texas law requires that the Attorney General of Texas be
given notice of Sonemaly's constitutional challenge to Texas's laws banning same-sex marriage,
and because a judgment that these laws are unconstitutional cannot be given until 45 days after
such notice is given, Sonemaly moves for a continuance of the hearing on Movants' special
exceptions and motion to dismiss until such notice period passes.
II.
Facts
Sonemaly and Stella met in the swnmer of 2004 and began a romantic relationship in the
summer of 2006. In April 2007, they traveled to Maui, Hawaii~ and Sonemaly proposed to Stella
on the peak of Mount Haleakala In May 2007, the couple hosted a party to celebrate their
engagement before family and friends. Shortly afterwards, the couple began living together in
Austin.
On April 3, 2008, Sonemaly and Stella were married at Chapel Dulciea in Driftwood,
Texas. Zen Priest Barbara Kohen officiated the marriage, which· was attended by a small group
of friends and family. Thereafter, Stella and Sonemaly executed declarations stating that they,
among other things, were each other's domestic partner, were living in an intimate and
committed relationship, were residing together, and were jointly financially responsible for each
other's basic living expenses. In fact, the couple began living together shortly after their
engagement and cohabitated until Stella's death in the summer of2014.
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In October 2013, Stella was diagnosed with colon cancer. During Stella's battle with the
disease, Sonemaly acted as Stella's medical power of attorney, cared for her at their home, and
accompanied her to treatments in Houston at M.D. Anderson and in Austin. Unfortunately, on
June 21,2014, Stella succumbed to cancer at the age of 53.
After Stella's death, Sonemaly and Movants discussed settling Stella's estate based on
the terms of a will that Stella had drafted shortly before her death but had never executed. When
these discussions were unsuccessful, Movants filed their Application for Detennination of
Heirship, which states that Stella was never married and does not even mention Sonemaly's
name. Since that filing, Sonemaly has filed a contest to Movants' application and a competing
application as Stella's common law spouse.
On October 15, 2014, Movants filed their Special Exceptions and Motion to Dismiss (the
"Special Exceptions") Sonemaly's heirship application arguing that Stella's maniage to
Sonemaly should not be recognized by this Court because of Texas's laws banning same-sex
marriage. Movants' Special Exceptions omit the glaring fact that this ban has been struck down
as unconstitutional by the Federal District Court for the Western District of Texas in the case of
DeLeon v. Perry, 975 F.Supp.2d 632 (W.D. Tex. 2014). DeLeon follows the holdings of the vast
majority of courts to entertain a challenge to state bans on same-sex marriage since the United
States Supreme Court's decision in Windsor, wherein the Court held that the Federal Defense of
Maniage Act's ("DOMA") limitation of marriage to opposite sex couples was unconstitutional.
133 S.Ct. 2675 (2013). Sonemaly now requests this Court to follow these holdings and rule that
Texas's laws banning same-sex marriage are unconstitutional and, based on this holding, to deny
Movants' Special Exceptions.
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Ill.
Arguments aod Authorities
A. The history of laws banaing same-sex marriage in Texas.
Movants have cited to three Texas laws to support their argument that the Court should
disregard Sonemaly and Stella's marriage: (1) Texas Family Code § 2.401 (limiting informal
marriage to '~marriage of a man and woman"); (2) Texas Family Code§ 6.204(b) (stating that
"[a] marriage between persons of the same sex .. .is void in this state"); and (3) Article I, § 32 of
the Texas Constitution (stating that "[m]arriage in this state shall consist only of the union of one
man and one woman ....Thls state or a political subdivision of this state may not create or
recognize any legal status identical or similar to marriage."). Sonemaly will refer to these laws
collectively as "Texas's Ban."
The Texas Family Code was amended in 1973 after the unsuccessful attempts of a small
number of gay and lesbian citizens to obtain marriage licenses. James W. Harper and George M.
Clifton, Heterosexuality: A Prerequisite to Marriage in Texas? 14 SOUTH TEXAS L.J. 220 (1973).
During the same period, same-sex couples in other states brought suits seeking to marry. Jones v.
Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),
affd, 409 U.S. 810 (1972); Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y. Sup. Ct. 1971);
Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). In reaction to these attempts, the Texas
legislature amended the Texas Family Code to state that "a man and woman" rather than
"persons" were entitled to obtain a marriage license and added, "(a] license may not be issued for
the maniage of persons of the same sex." TEX. FAM. CODE§ 1.01 (1973).
As a reaction to the Hawaii Supreme Court court's holding that same-sex couples had the
right to marry under that state,s law., Congress in 1996 enacted DOMA, which limited federal
4
recognition of marriage to only same-sex marriages, and numerous states followed with so~called
'1:nini-DOMAs," which prohibited states from recognizing marriages between same.. sex couples.
See Jane S. Schacter, Courts and the Politics of Backlash, 82 S. CAL. L. REv. 1153, 1188-89
(Sept. 2009). These mini-DOMAs typically defined marriage as only between one man and one
woman and prevented states from giving full faith and credit to same-sex marriages lawfully
entered in other jurisdictions. Texas followed suit in 2003 with its own mini ..DOMA by enacting
Texas Family Code § 6.204, which voids all marriages and all civil Wlions between same-sex
couples and prohibits state recognition of any such relationships. TEX. FAM. CODE § 6.204(b). It
further prohibits the state from giving effect to any "legal protection, benefit, or responsibility"
allegedly resulting from such marriages or civil unions. TEX. FAM. CoDE§ 6.204(c).
In 2005, Texas enshrined this law in the state constitution. The constitutional amendment
was passed by referendum with approximately 76o/o of the vote. OFFICE OF TEXAS SECRETARY OF
STATE, 2005 CONSTITUTIONAL AMENDMENT ELECTION, http://elections.sos.state.tx.us/elchist.exe
(last visited November 4, 2014). As a result, Article I,§ 32 of the Texas Constitution now states:
(a) Marriage in this state shall consist only of the union of one man and one
woman.
(b) This state or a political subdivision of this state may not create or recognize
any legal status identical or similar to marriage.
This discriminatory constitutional provision, as well as the other laws comprising Texas's
Ban, cannot withstand constitutional scrutiny and should be disregarded in this matter. The Court
should detennine the question of whether Stella and Sonemaly' s maniage should be recognized
based on the laws governing informal marriage, not based on Texas's unjustifiable ban. This is
especially evident in light of the United States Supreme Court's decision in U.S. v. Windsor.
5
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B. The United States Supreme Courtts Decision in Windsor and its effect on state laws
banning same-sex marriage.
In Windsor, plaintiff Edith Windsor challenged the provision of DOMA that defined
"marriage" and "spouse'' to exclude same..sex spouses. 133 S.Ct. 2675, 2682 (2013). Ms.
Windsor had married Thea Spyer in Canada and that marriage was subsequently recognized in
their home state of New York. !d. at 2683. Ms. Spyer died in 2009 and left her entire estate to
Ms. Windsor. Id. But because of Section 3 of DOMA ("Section 3"), which defines "marriage"
and "spouse" as excluding same~sex spouses for purposes of all federal statutes and regulations,
Ms. Windsor could not qualify as Ms. Spyer,s "surviving spouse" for purposes of the federal
estate tax exemption. /d. As a result, Ms. Windsor was required to pay $363,053.00 in federal
estate taxes that she otherwise would not have been required to pay if her marriage to Ms. Spyer
was recognized under federal tax law. ld. Ms. Windsor challenged Section 3, a challenge that
was eventually decided by the Supreme Court.
The Court's opinion, 'Mitten by Justice Anthony Kennedy, invalidated Section 3 as
unconstitutional under the Fifth Amendment's Due Process Clause. !d. at 2693. In reaching this
holding, Justice Kennedy made the following statements regarding Section 3:
• Section 3' s "principal purpose is to impose inequality, not for other reasons like
government efficiency."
• Section 3 ''tells those [same-sex] couples, and all the world, that their otherwise
valid marriages are unworthy of federal recognition."
• Section 3 ''demeans the couple, whose moral and sexual choices the Constitution
protects.n citing Lawrence v. Texas, 539 U.S. 558 (2003) (striking down Texas's
sodomy laws as unconstitutional).
• Section 3 "humiliates tens of thousands of children now being raised by same-sex
couples. The law in question makes it even more difficult for the children to
6
understand the integrity and closeness of their own family and its concord with
other families in the community and in their daily lives."
• ''Under DOMA, same-sex married couples have their lives burdened by reason of
government decree, in visible and public ways."
ld. at 2694..95. The Court held that for these same reasons, Section 3 denied same-sex spouses
equal protection ofthe Jaws guaranteed by the Fourteenth Amendment.Jd. at 2695 ("[w]hile the
Fifth Amendment itself withdraws from Government the power to degrade or demean the way
[DOMA] does, the equal protection clause of the Fourteenth Amendment makes that Fifth
Amendment right all the more specific and all the better understood and preserved.").
In a prophetic dissent concerning, in part, the breadth of Justice Kennedy's opinion,
Justice Scalia reasoned that majority decision would be applied by lower courts to hold state
bans on same sex maniage unconstitutional. /d. at 2709. To illustrate his point, Justice Scalia
edited excerpts from Justice Kennedy's opinion to show how they might apply equally in a
same-sex marriage ban case, including in the following example:
[DOMA] Thjs state law tells those couples, and all the world, that their otherwise
valid JftBI'fiages relationships are unworthy of fetleml state recognition. This
places same-sex couples in an unstable position of being in a second-tier ma:n:ia:ge
relationship. The differentiation demeans the couple, whose moral and sexual
choices the Constitution protects, see Lawrence.
ld. at 2709-10 (citing id. at 2694). Justice Scalia could not have been more accurate with his
prediction, as court after court entertaining challenges to state law same-sex marriage bans have
applied Justice Kennedy's opinion in Windsor to almost uniformly strike those bans down.
At the time of this writing, almost twenty reported decisions, including decisions by the
Tenth, Fourth, Seventh and Ninth Circuit United States Courts of Appeals, have relied on
Windsor to strike down state bans on same sex marriage as Wlconstitutional. Bishop v. Smith, 160
7
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F.3d 1070 (lOth Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (lOth Cir. 2014); Bostic v.
Schaefer, 160 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 166 F.3d 648 (7th Cir. 2014); Latta v.
Otter, ......f.3d---, 2014 WL 4977682 (9th Cir. 2014); Marie v. Moser, No. 2:14--cv-02518-DDC-
TJJ, --F.Supp.2d··-- (D. Kan. 2014); Bourke v. Beshear, 996 F.Supp.2d 542 (W.O. Kent. 2014);
Love v. Beshear, 989 F.Supp.2d 536 (W.D. Kent. 2014); Gray v. Orr, 4 F.Supp.3d 984 (N.D.
Illinois 2014); Brenner v. Scott, 999 F.Supp.2d 1278 (N.D. Fla. 2014); Hamby v. Parnell, ---
F.Supp.3d---, 2014 WL 5089399 (D. Alaska 2014); Wolfv. Walker, 986 F.Supp.2d 982 (W.D.
Wise. 2014); Majors v. Jeanes, .....f.Supp.3d-··, 2014 WL 4541173 (D. Ariz. 2014); Whitewood
v. Wolf, 992 F.Supp.2d 410 (M.D. Penn. 2014); Geiger v. Kitzhaber, 994 F.Supp.2d 1128 (D.
Oregon 2014); Henry v. Himes, ---F.Supp.2d--.., 2014 WL 1418395 (S.D. Ohio 2014); Tanco v.
Haslam, 7 F.Supp.3d 759 (M.D. Tenn. 2014); DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D.
Michigan 2014); Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D. Ohio 2013). Based on these
and other decisions, as well as related legislative enactments, same·sex couples in 32 states and
the District of Columbia now have the freedom to marry, and nearly 59% of the U.S. population
lives in states currently issuing marriage licenses to same·sex couples. FREEDOM TO MARRY,
http://www.freedomtomarry.org/states/ (last visited November 4, 2014). In fact, the undersigned
has discovered only two reported cases since Windsor upholding a state's ban on same-sex
marriage, and even these cases acknowledge the tidal wave of post- Windsor opinions striking
down the bans. See Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D. La. 2014) (acknowledging
~'the near-unanimity of the many other federal courts that have spoken on this pressing issue" and
have declared same-sex marriage bans unconstitutional); Vidal v. Garcia-Padilla, ---F.Supp.3d-
-, 2014 WL 5361987 (D. P.R. 2014) (acknowledging that u[a] clear majority of courts have
8
struck down statutes that affirm opposite-gender marriage only). In contrast to these two
opinions, since Windsor no circuit court of appeals has upheld such a ban. In sum, the effect of
Windsor has been swift and resolute-i.e. based on the majority's reasoning in Windsor, state
bans on same-sex marriage, including Texas's Ban, no longer pass constitutional muster.
C. Tbe DeLeon decision.
In DeLeon v. Perry, Judge Orlando Garcia of the United States District Court for the
Western District of Texas-San Antonio Division, declared Texas's Ban unconstitutional. The
plaintiffs in DeLeon were two married couples, one lesbian couple who had been married in
Massachusetts and were seeking to have their marriage recognized in Texas, and one gay couple
who had applied and been denied a Texas marriage license. 975 F.Supp.2d 632, 640-41 (W.D.
Tex. 2014). The Defendants were various local and state officials defending Texas's Ban. ld.
After reciting the history of same·sex marriage bans in the United States, including the
enactment of Texas's Ban and DOMA, the Court highlighted the watershed decision in Windsor.
!d. at 641-648. The court then considered the plaintiffs' challenges to Texas's Ban tutder the
Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S.
Constitution.Jd. at 649.
1. The DeLeon court's equal protection analysis.
Beginning with its equal protection analysis, the court noted that "[t]he Equal Protection
Clause of the Fourteenth Amendment commands that no state shall deny to any person within its
jurisdiction the equal protection of the laws ... This essentially means that aU persons similarly
situated shall be treated alike.'' ld. at 649 (citing U.S. Const. Amend. XIV § 1 and City of
Cleburne, Tex. v. Cleburne Living Ctr.t 473 U.S. 432 (1985)). Measured against the equal
9
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protection clause, laws are subject to three levels of scrutiny: strict scrutinyt intennediate
scrutiny, or rational basis review. Id. Although the plaintiffs urged the court to apply strict or
intermediate scrutiny to Texas's Ban based on the history of state discrimination· against
homosexuals; the fact that sexual orientation is immutable, and that homosexuals are a minority
with insufficient political power, the court found there was no need because the Ban could not
satisfy even the most deferential rational basis level ofreview.Jd. at 651-52.
Rational basis requires only that the law bear some rational relationship to a legitimate
state interest. ld. at 652. The defendants identified two purported legitimate state interests
furthered by Texas's Ban: 1) increasing the likelihood that a mother and father will be in charge
of childrearing; and 2) encouraging stable family environments for responsible procreation. ld. at
653.
The court first rejected the defendants' claim that baning same-sex couples from
marrying bears a rationaJ relationship to furthering the welfare of children and childrearing. !d.
Echoing Justice Kennedy in Windsor, the DeLeon court found that the ban actually injuries
children and "causes needless stigmatization and humiliation for children being raised by the
loving same-sex couples being targeted." Id. The court found that the defendants had failed to
present any evidence that denying marriage to same-sex couples positively affects childrearing or
evidence that recognizing a same-sex marriage could affect a heterosexual couple, s decision to
marry or raise a family. Jd.
The court then assailed the defendants' procreation arguments by reasoning that
'•procreation is not and has never been a qualification for marriage!" and noted that such a
qualification would threaten "the legitimacy of marriages involving post-menopausal women,
10
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infertile individuals, and individuals who choose to refrain from procreating." Id. at 654.
Continuing on, Judge Garcia observed that "[p]ennitting same. .sex couples to marry wiJl not
affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of
marriage or otherwise affect the stability of opposite-sex marriage." /d. In fact, the court noted,
Texas's Ban hinders stable environments for procreation by denying the children of same-sex
couples the same stable family structure which the defendants praised in their arguments. /d. at
655. The court concluded this section by stating that "the argument that allowing same-sex
couples to marry will undermine procreation is nothing more than an unsupported 'overbroad
generalization' that cannot be a basis for upholding discriminatory legislation." ld.
Finally, the court dispensed with any argument that tradition, or more specifically the
"traditional definition of marriage'' is a reason for upholding Texas's Bans. /d. Citing Lawrence,
the court noted that tradition alone can never be a reason to uphold a law under rational basis
review~ ld. As an example, Judge Garcia· highlighted the U.S. Supreme Court's decision in
Loving v. Virginia, which struck down state laws banning marriage between people of different
races, and reasoned that "tradition alone cannot justify denying same-sex couples the right to
marry any more than it could justify Virginia's ban on interracial marriage." !d. at 656 (citing
Bostic v. Rainey, 970 F.Supp.2d 456 (E.D. Va. 2014)). The court concluded by holding that the
defendants had failed to show any rational relationship between Texas~s Ban and a legitimate
governmental purpose and, therefore, the ban violated the plaintiffs' equal protection rights. Id.
2. The DeLeon eourt's due process analysis~
After fmding Texas's Ban unconstitutional as a violation of equal protection, Judge
Garcia addressed the plaintiffs' argument that Texas's Ban was a violation of the Due Process
11
Clause of the Fourteenth Amendment, which guarantees that all citizens have certain
fundamental rights. /d. The court first detennined that, based on Supreme Court precedent,
marriage is indeed a fundamental right that implicates the additional fundamental rights of
privacy, liberty, and association, all of which are protected by the due process clause. /d. at 657-
58. As such, the U.S. Supreme Court had historically invalidated state laws that infringe on an
individual's right to marry, including most notably, in Loving v. Virginia when the Court struck
down Virginia's ban on interracial marriage. /d. at 658. Because Texas's Ban "categorically
den[ies] the fundamental right to marry to a class of citizens," the court applied strict scrutiny,
which requires that the law be supported by a compelling state interest and be narrowly tailored
to effectuate that interest. ld. at 659-60. The court concluded, without discussion, that the
defendants bad failed to satisfy this difficult burden and concluded that Texas's Ban was
unconstitutional under the due process clause of the Fourteenth Amendment. 1
The DeLeon court concluded by holding that Texas's Ban was unconstitutional because it
violates the plaintiffs' equal protection and due process rights under the Fourteenth Amendment
to the United States Constitution. ld. at 666. The court then stayed its decision, which included
an injunction barring enforcement of the Texas's Ban, pending the final disposition of an appeal
to the Fifth Circuit Court of Appeals. !d.
D. Texas's ban on same-sex marriage is unconstitutional.
Based on the holding in DeLeon, which is from the federal district covering this
jurisdiction, as well as the holdings of the numerous other courts who have entertained
I The DeLeon court went on to hold that Texas's failure to recognize same-sex marriages recognized in other
jurisdictions was unconstitutional, but because that discussion is inapplicable to this case and for the sake of brevity
this discussion has been excluded from this response.
12
T:~!V\~
i" 'fi"Ot
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challenges to state laws banning same-sex marriage in the aftennath of Windsor, Texas's Ban is
unconstitutional. Assuming that the Movants here will offer the same three justifications for the
Ban that were discussed in DeLeon-i. e. that the Ban 1) increases the likelihood that a mother
and father will be in charge of childrearing; 2) encourages stable family environments for
responsible procreation; and 3) is justified based on tradition-the failure of these reasons to
reach the level of a "rational basis" for the Ban is even more stark in this case than in DeLeon.
How could this Court's recognition of the marriage between Stella and Sonemaly, which
would allow Sonemaly to participate in all the benefits of a surviving spouse, somehow affect
anyone's decision regarding how to rear their children or procreate? The only effect of
recognition in this case would be to provide Sonemaly with the rights of an heir, something this
court does every day without paying regard to the sex of the decedent or the hei~ and without any
effect on anyone else's decision regarding how to rear their family. And as the DeLeon court
noted, tradition alone is no justification for Texas's Ban.
Failing to recognize the marriage between Stella and Sonemaly would only magnify the
same discriminatory and deleterious effects that Justice Kennedy warned of in Windsor. Could
there be any more '~isible and public" burden than, in your time of mourning for your deceased
spouse, having your spouse's family and the State of Texas fail to recognize your marriage and
fight to have it invalidated? Is there anything more demeaning or unequal than having the state in
which you and your spouse lived for years suggest that your otherwise valid marriage is
unworthy of recognition simply because you are of the same sex? And although Stella and
Sonemaly never had children, imagine the effects of non-recognition on the surviving children of
13
0 2 2015
By Deputy: - -~"·"·
~~'\~t)VV
~ ~ L~MON
. --··-··-·-··-·--·---------------------
understand the integrity and closeness of their own family and its concord with other families in
the community and in their daily lives." See Windsor, 133 S.Ct. at2694.
The Texas Ban is blatant discrimination that has no rational relationship to any legitimate
government interest. Its application in this case would not only be unconstitutional, it would be
cruel. This Court should follow the holdings of almost every other jurisdiction to bear a
challenge to state laws banning same-sex marria~e post-Windsor and hold that Texas's Ban is
unconstitutional and deny Movants' Special Exceptions.
IV.
Alternative Motion for Continuanee
In the alternative to denying Movants' Special Exceptions and holding Texas's Ban
unconstitutional at this time, Sonemaly requests that the Court continue the hearing on this
matter until the Texas Attorney General can be given notice as required Wider Texas
Government Code § 402.010. That section requires that ~'[i]n an action in which a party to the
litigation files a ... pleading challenging the constitutionality of a statute of this state ... [t]he court
shall, if the attorney general is not a party to or counsel involved in the litigation, serve notice of
the constitutional challenge and a copy of the ... pleading" on the attorney general. TEX. Gov'T
Cooe § 402.0IO(a). The statute further states that "[a] court may not enter a final judgment
holding a statute of this state unconstitutional before the 45th day after the date" of the notice. !d.
at (b). In a recent case out of San Antonio, wherein State District Judge Barbara Nellennoe held
that Texas's Ban is unconstitutional, the appellate court granted mandamus relief to the Attorney
General because of the court's failure to provide notice of the constitutional challenge. In re
State of Texas, No.04-14-00282, 2014 WL 2443910 (Tex. App.-San Antonio May 28,2014, no
pet.) (mem. op., not designated for publication). Therefore, Sonemaly requests that the Court
14
-
postpone any decision on the constitutionality of Texas's Same Sex Marriage Ban until the
notice required by the Government Code is provided and the 45 day notice period has passed.
v.
Request for Relief
Based on the forgoing, Sonemaly Phrasavath requests an order from the Court finding
that Texas Family Code§§ 6.204(b) and 2.401 and Article I,§ 32 of the Texas Constitution are
unconstitutional under the United States Constitution; denying Movants' Special Exceptions and
Motion to Dismiss; in the alternative, continuing the hearing on Movants' Special Exceptions
and Motion to Dismiss until the notice period required by Texas Government Code§ 402.010
has passed; and providing Sonemaly with all such further relief to which she shows herself
entitled.
Respectfully submitted,
HOPPER MIKESKA, PLLC
By:
CRAIG HOPPER
State Bar No. 00794947
BRIANT. THOMPSON
State Bar No. 24051425
chopper@ho~mermikeska.com
bthompson@hoppermikeska.com
400 W. 1slh Street, Suite 408
Austin, Texas 78701
(512) 615-6195 Telephone
(512) 615-6194 Fax
ATTORNEYS FOR COUNTER-APPLICANT
15
n~7,/ CIA'\, "~"~1!\PS Colm'ty,
rta~ ~~~ ;q true ~~nd
~ul)} rtf .· . rtl'::oro in my office
mv !iam.i Jftic~ on
• Dana DeBeauvoirl Cat.mtMAit 0 2 J015
CERTIFICATE OF SERVICE
I hereby certify that a. true and correct copy of the foregoing pleading has been served on
the following counsel of record on this 6th day of November, 2014, in accordance with Rule 2la
of the Texas Rules of Civil Procedure, either electronically through an electronic filing manager,
or non..electronical1y via hand-delivery, e-mail, facsimile, or mail (first class or certified):
Michael B. Knisely
Jason S. Scott
Osborne, Helman, Knebel, DeLeery, L.L.P.
301 Congress Avenue, Suite 1910
Austin, Texas 78701
(512) 542-2011 (fax)
Lorin Hayes
Law Offices of Douglas A. Booth, P.C.
3801 S. Capital ofTexas Highway, Suite 255
Austin, Texas 78704
(512) 478-4926 (fax)
16
I IICU. I lfV/LV l"'t ..J.L...,}. l v rcl'fl
Challenge to ConstitutioDality of a State Statute Dana DeBeauvo r
Travis County Cler~
This form must be completed by a party filing a petition, motion or other pleading etl&tleiif.ii·ctt\lP9 5
constitationality of a state statute. The completed form must be filed with the court in which ~CSU9e'~ial ~z
pending as required by Section 402.010 (a-1), Texas Government Code.
Cause Number (For Clfl'k UR Only): Court (F'Ot' Clerk Use Only):
Styled:
(e.g.• John Smith v. All American Insurance Co.; in re Mary Ann Jones; In the Matter of the Estate of George Jackson)
CoataetiufonaatioJi..,foi'.~N-"eball~~~g.theeonstitUtioaalltjofcii:st1\t•·statt;lte,.·(*UJIIIny_ls:not.a,.,on,pr.twlde
co•t.11!11 t•ft~t'IIUitltmforplll'i:y;F:rtl.~&rqra~ilratttmtejt.) ... · · _. · . · · .- · · ·
Name: SOnemaly Phrasavath c/o Brian Thompson Telephone: 512-615-6195
Address: 400 W. 15th Street, Suite 408 Fax: 512-615-6194
City/State/Zip: Austin, Texas 78701 State Bar No. (if applicable): 24051425
Email: bthompson@hoppermikeska.com
Person completing this fonn is: ~ Attorney for Party D Unrepresented Party D Other:
Identify the ~--~-PJeadiq,yo~ ~ha~e. filed ~liallenging .th~ eODStitutionaUty of a s~te.statute~
0 .: 0 0 0 o • 0 . . . ._ 0 0 o : ' ' 0 • N ' ' 0 0 ' ' ' •• o : 0 ~ 0 '' ' ' 0 0 ' ' 0 '• ' o ' ' ' 0
0 Petition D Answer D Motion (Specify type):
181 Other: Response to Motjon for Qismiss/Specja! Rxc,eptjnns
.. ..
_;_,
D Yes I!) No
Soncma!y Phmsavatb cballenges the constjtutjonalit)' of Texas Famjly Code Sections 2 40 I and 6.204 and Artiqle 1. Section 32 of the
Texas Constitution insofar as these laws prohibit recognition of ume:sex
informal marriage These laws are challenged under the
fowteentb Amendment to the Uojted States Constitution and the holding of DeLeon v. Perry. 975 F.SUJ!p.2d 632. 640-41 (W.O. Tex.
~
\Iii,,ln\~~~~\ii\l\~\'\~'~'\Il \ \ \ \ \ \\\1
~ "U\f t~V \U,
M~ lJMON
Tab C
··-
Filed: 9/18/2014 12:01:19 AM
Dana DeBeauvoir
Travis County Clerk
C-1-PB-14-001695
Abram Gonzalez
Cause No. C-1-PB-14-_00_} {ljS:
ESTATE OF § IN THE PROBATE COURT
§
STELLA MARIE POWELL, § ~MBERONEOF
§
DECEASED § TRAVIS COUNTY, TEXAS
APPLICATION FOR DETERMINATION OF HEIRSHIP AND
ISSUANCE OF LETTERS OF INDEPENDENT ADMINISTRATION
Date of Death: June 21, 2014
TO THE HONORABLE JUDGE OF SAlD COURT:
James Powell and Alice Huseman ("Applicants") file this Application for Determination of
Heirship and Issuance of Letters of Independent Administration and in suppm1 of such Application
would respectfully show the Court as follows:
I.
Applicant James Powell is a surviving brother of Stella Marie Powell ("Decedent''), and
resides at 715 West Avenue, Austin, Travis County, Texas 78701. Applicant Alice Huseman is the
surviving sister of Decedent, and she resides at 223 Oleander Avenue! Corpus Christi, Texas 78404.
II.
Decedent died on June 21, 2014, in Ha11·is-County, Texas at the age offiftyMthree (53) years,
and four (4) years have not elapsed since the date of her death.
1
--·
III.
This Court has jurisdiction and venue because Decedent was domiciled and had a fixed
place of residence in Travis County, Texas on the date of her death.
IV.
Decedent owned property described generally as real property, goods and personal effects
of a pt·obable value of in excess of $50,000. A necessity exists for the administration ofDecedenfs
estate (the "Estate").
v.
To the best of Applicants' knowledge, Decedent died intestate. It is necessary and in the
best interest of the Estate for the Court to detennine who are the heirs and the only heirs of
Decedent.
VI.
Decedent was never legally ma11"ied. No children were ever born to or adopted by
Decedent.
VII.
The names and residences of the heirs of Decedent, each heit's relationship to Decedent, and
each heir's true interest in the estate of Decedent are as follows:
Heir and Residence Marital Status Relationship Interest
Alice Powell Single/Widow Mother 112 interest in Decedent's
(92 years old) real and personal property
219 Red Poppy Trail
Georgetown, TX 78628
2
·······------·-·-· , __________________
Heir and Residence Marital Status Relationship Interest
Alice Huseman Mm'ried Sistct 1/6 interest in Decedent's
(67 years old) real and personal property
223 Oleander Avenue
Corpus Christi, TX
77019
James Powell Single Brother 116 interest in Decedent's
(64 years old) rea) and personal property
715 West Avenue
Austin, TX 78701
Bryan Powell Single Brother 1/6 interest in Decedent's
(59 years old) real and personal property
219 Red Poppy Trail
Georgetown, TX 78628
Alice Powell, Alice Huseman, James Powell, and Bryan Powell constitute the only heirs of
Decedent's estate. Each such heir is an adult and is not under any legal disability.
VIII.
Each man-iage of Decedent has been listed in this Application, and this Application includes
all of the infmmation required by Section 301.052 ofthe Texas Estates Code.
IX.
The heirs of ·Decedent listed herein constitute all persons entitled to receive property of
Decedent's estate, and none of such heirs is a minor or under any legal disability. Pursuant to the
provisions of Section 401.003 of the Texas Estates Code, all of the heirs of the Estate (being all
3
-
1 •
distributees of the Estate) hereby designate Applicants to serve as Independent Co-Administrators
of the Estate, and hereby request that no action be had in any comt in the settlement of the Estate
other than the return of an Inventory, Appraisement, and List of Claims of the Estate or an affidavit
in lieu thereof. Each heir of the Estate joins in this Application. Fmther, as provided in Section
401.005 of the Texas Estates Code, each such heh· requests that the Court waive the requirement of
bond and permit Applicants to serve without bond as Independent Co-Administrators of the Estate.
It is anticipated that each heir of the Estate that is not an applicant will join in this Application by
vhtue of written agreement that will be filed in this cause.
X.
Applicants are qualified and are not disqualified by law from accepting Letters of
Independent Administration.
XI.
It is in the best interest of the Estate and of the distributees of the Estate for the Coutt to
enter an order appointing Applicants to serve as h1dependent Co-Administrators of the Es1ate
without bond.
WHEREFORE! Applicants pray that citation issue as required by law to all parties
interested in the Estate in the manner and for the length of time required by law; that the Court
detetmine and declare the names and residences of all the heirs of Decedent and their respective
shares and interests in the Estate; that Applicants be appointed as Independent Co-Administrators
and that no bond be required; that the Co-Administrators be granted the power to sell real property
4
without Court approval; and that Letters of Independent Administration be issued to Applicants.
Applicants ptay further that such other and further orders be made as the Court may deem proper.
Respectfully submitted,
OSBORNE, HELMAN,
KNEBEL & DELEERY, L.L.P.
301 Congress Avenue, Suite 1910
Austin, Texas 78701
Telephone: (512) 542M2002
Telecopier: (512) 542-2011
By: /Ju$u,(
MICHAEL B. KNISELY
State Bar No. 24047367
mbknisely@ohkdlaw.com
JASON S. SCOTT
State Bar No. 24029228
j sscott@ohk:dlaw.com
ATTORNEYS FOR APPLICANTS
5
-
CIVIL CASE L~FORMA TION SHEET
MAY ENTER CAUSE# / COURT # IF ALREADY ASSIGNEO (E.G., FAMILY MOTION 1 AMENDED PETITtON)
CAUSE NuMBER (1-YJH CJ..b.'RX USI!: ONLY): CoURT (roR CLt.'R.K use ONLY):---------~
STRED _______________________________________________ -------------------------------------------
A civil case information sheet must be completed and submitted whe11 an original petition or application is tiled to initiate a new civil, family law, probate. or menta!
health case or when a post-judgment petition for modification or motion for enlbrcement is filed in a family law case. The information should be the best available at
the time of tiling. This sheet, approved by the Texns Judicial Council. is intended to collect information that will be used for statistical purposes only. It neither replaces
nor supplements the filings or service of pleading or other documents as required by law or rule. The sheet does not constitute a discovery request, response, or
I . and it is not admtsstb
S\IPPietnentatmn . . le at trial.
...... --· .......
--- ······· ............ ..... ............... . .. .. ... ... - .. ...... ~-·-
·- -·
• Contact'infoa•malion for pc.-son ~ompleting case lnfm·matlon sheet: ~anaes of_pa1•ties in case: Pei'SGII or entity completing11beet is:
Plaintiff(s)!Petitioner(s): ~ttorney for Plaintiff/Petitioner
Name: Email: ~roSe Plaintiff/Petitioner
James Powell
Michael B. Knisely mbknisely@ ohkdl aw.com :=fitle lV-TJ Agency
.._.bther: :
~ddress: Teleph011e:
befendant(s)/Respondent(s):
301 Congress Ave., #1910 512-542-2000 Additional Parties in Child Support Case:
The Estate of
~ity/State/Zip: Fax: Custodial Parent:
Stella Marie Powell,
Austin, TX 78701 512-542-2011
Deceased Non-Custodial Parent:
~ignatut·c: State Bar No:
~{QAj
additional pag~ as uec~ss:uy to Jist ill! pncties]
,
Att3~h
24047367 Presumed Father:
-··· -· ·-·-······-·· ···- ... - ...
l. Indicate case type. or ideulify tbe most in1POI'tft~lt issue in the case (select o!l!.r.l)J____ ··-· ... .•..
-·
QPTiON A: CK CASE TYPE__(EXCEPT OTHE~ FOR Cl~K TO SELECT SUIT TYPE_i SEE SEC. 3 NOTE BELOW Cilti/ "l Famii1'Law
Post-judgment Actions
Colltl'act ln\urv en· Damal!e Real P1•operty Marria~e Relationship (non-Title IV-D)_
'(Jebi/Collh'OCI
~:sault/B~ttery 0Eminent Domain! I t..JAnnulment b;JE:nforcement
CJconsumer/DTPA [JJ:)~nstructaon Condemnation Doeclare Marriage Void 0Modificotion-Custody
DnebVContract ef.amation 0Partition Dil'orce DModification-Other
Uraud!Misrepresentation ~13:cticc CIQuiet Title Owith Children TitleiV-D
D:lther Debt/Contract: ecounling Orrespass to TJY Title DNochildren QEnforcemenVModification
OLegal Dother Property: Gaternity
Foreclosure 0Medical DReciprocals (UIFSA)
DHome Equity-Expedited D:lther Professional Dsupport Order
r- Clother Foreclosure Liability:
Rtlated to Criminal Mattea·s Other Family Law PR.-ent~Cbild R~latlonslaip
~!Franchise
;:: nsura.nce ~oto: Vehicle Accident bJExpunction UEnforce Foreign
Judgment
lJA.doption/Adoptiori with
Termination
;:: Landlordffenant remases Dludgment Nisi
Product Liability DNon-Disclosure DH:abeas Corpus Dchild Protection
;:: !Non-Competition
Qgeizure/Forfeiture I DName Change [khild Support.. · ·
;:: Partnership DAsbestos/Silica
Cbther Product Liability Owrit of Habeas Corpus- DProtective Order O:ustody or Visitation
,'- bther Contract:
I .ist Product Pre-indictn1ent DRemoval ofDisabilities OJestational Parei\ting
foPTIOt4 e; CK OTHER. & ENTER 3·~ETTER Cbthcr: of Minority CIGrandparentAccess
SUIJ T'{PE FOR CLERK TO USE WHEN D:>tber Injury or Damage: Dol her; Orarentage!Patcrnity
DOCK!liNG Drermitt~tion of Parental
Em(lloymeut Other Civil Rights.
L1other Parent-Child:
Doiscrimination DA.dministrative Appeal Dr..awyer Discipline
DR.eta1iation. DAntitrust/Unfair DPerpetuate Testimony
Drermination Competition 01\ecuritics!Stock
Oworkers' Compensation Ckode Violations Orortiou.~ Interf~rence
Chther Employment:
Tax
DFm·eign Judgment
Dlntell.~ctua~ P.ropertl
CJother:
--··- ·-----··. -====-L. Prohaie & Met~lal Hetlllll
"" ·-- ·,·. --····-
: Qra.x Appraisal Probate/Willsllulestafe Admillisfi'Uiiou CJGuardianship--Adult
Drax Delinquency DDependent Adntinistration D:iuardianship-Minor
OotherTax IBJrndependent Administration OMental Healtl1
Chther Estate Proceedings,__ . -·- ~ther: ...
-·
3. Indi<:ate urocedure Ol'l'emedy~ ifanmicable_.lmn.J' select more tho" 1):
QA.ppeal fro1n Municipal or Justice Court Jn.e.c.laJ'lltnt'11 .Tudvment
I [ ~Prejudgment Remedy
DA.rbitratioo-related DGal'Dis)llllfDt E:r~tf:tib'!l Qnl!ll'
l
DA.ttachment Out~:ruls:a!lt:J' );!AI'AIVAl•
DRm a[ B!::t:itlY ~
&~rtiorari D\1anda!llll5 ?: Temporary Restraining Order/Jnlunctjon
lass Action DPost-iud~tment .... Turnover
Ol'liON c: SECTION 3 PROCE~s/REMEOIES IN M!J! MAY BE USED AS CASE OR SUIT TYPES, YOU MAY SPECIFY THAT OHE OF TH~~~!ffiij~ 59~~~~~4g-~~~Y~icKfNG IT ANil
LI:4.YING THe CASE TYPE JN SECTION 2 BLANK. SELECTING A CAS!: TYPE IN SECTION 2 OVERRIDES ANY SELECTION IN SECTION 3,
Tab D
Filed: 9/18/2014 3:39:57 PM
Dana DeBeauvoir
Travis County Clerk
No. C-1-PB~14-001695 C-1-PB-14-001695
Abram Gonzalez
ESTATE OF § IN THE PROBATE COURT
§
STELLA MARIE POWELL, § NUMBER I
§
DECEASED § TRAVIS COUNTY, TEXAS
CONTEST TO APPLICANTS JAMES POWELL AND ALICE HUSEMAN'S
(1)
APPLICATION FOR DETERMINATION OF HEIRSHIP AND ISSUANCE OF
LETTERS OF INDEPENDENT ADMINISTRATION AND (2) COUNTER-
APPLICATION TO DETERMINE HEIRSHIP, FOR APPOINTMENT OF DEPENDENT
ADMINISTRATOR AND ISSUANCE OF LETTERS OF ADMINISTRATION
Sonemaly Phrasavath ("Counter-Applicant") hereby files this (1) Contest to Applicants
Jams Powell and Alice Huseman,s Application for Determination of Heirship and Issuance of
Letters of Independent Administration and (2) Counter-Application to Determine Heirship, for
Appointment of Dependent Administrator and Issuance of Letters of Administration (the
"Application") and in support thereof, would show the Court as follows:
1. Counter-Applicant is an individual interested in this estate, domiciled in and
residing at 3513 Hillbrook Drive, Austin, Texas 78731.
2. Stella Marie Powell ("Decedent") died on June 21, 2014, in Harris County, Texas,
at the age of 53 years.
3. Decedent was domicil~d in Austin, Travis County, on the date of death.
4. Decedent owned real and personal property, generally described as a house, other
real property, and personal effects having a total probable value in excess of$250,000.
5. Decedent was in a common law or informal marital relationship with Counter-
Applicant at the time of her death. Decedent was otherwise never married.
6. No children were bom to or adopted by Decedent.
7. C01.mter-Applicant is interested in the estate of Decedent as an intestate heir.
( Or.ma Oe\3~::luvoir ('"~w·~1 C:le'"X, T'"?.viS County,
Te~s do t~ere!.iy r:;wtli1 rr1a1 'Hs ~~ c. tm~ and
f'J)~Yeetcopyaf ·)am~=- ati:Jk"..afbJ! ·eco,'dmmyQIIi.I~R· 02
1
\/'fitness m) hand ana Of-8.\ o1 oft1ce on MAl 2015
·illlfiJt•wru;r,~ri'!i~liii'
t\/\(}gMJV'Lbk
- -
8. To the best of Counter-Applicant's knowledge, Decedent died intestate.
9. The names, ages, marital status, and residences of all of Decedent's heirs, the
relationship of each heir to Decedent, and the true interest of the Counter-Applicant and each of
the heirs in the estate of Decedent are as follows:
Age, Marital Status and Share and
Name and Residence Relationship to Decedent True Interest
Sonemaly Phrasavath 40 years, Married, Wife 112 of Decedent's separate
3513 Hillbrook Drive real property; all separate
Austin, Texas 78731 personal property; all
community property
Alice Powell 92 years, Single, Mother 1/4 separate real property
219 Red Poppy Trail
Georgetown, Texas 78628
Alice Huseman 67 years, Married, Sister 1/12 separate real property
223 Oleander Avenue
Corpus Christi, Texas 78404
James Powell 64 years, Single, Brother 1112 separate real property
715 West Avenue
Austin, Texas 78701
Bryan Powell 59 years, Single, Brother 1112 separate real property
219 Red Poppy Trail
Georgetown, Texas 78628
10. Each marriage, if any, of the Decedent and all children, if any, born to or adopted
by Decedent have been listed in this Application.
11. A necessity exists for the administration of this estate in order to pay debts and
expenses of this estate, to collect estate assets, and for other reasons sufficient in law to
constitute a necessity for administration.
2
-
12. It is in the best interest of this estate and the Decedent's heirs for the Court to
enter an order declaring Decedent's heirs, creating a dependent administration of Decedent's
estate~ and appointing Counter-Applicant as Dependent Administrator.
13. Counter-Applicant is qualified and not disqualified by law from accepting letters
of administration.
14. There is no need for the appointment of appraisers.
15. This application has been brought in good faith and for just cause.
Contest
16. On September 18, 2014, James Powell and Alice Huseman e'Applicants") filed
their Application for Determination of Heirship and Issuance of Letters of Independent
Administration in this cause ("Applicants' Application"), alleging different intestate heirs for the
Decedent, and denying Counter-Applicant's marital status to Decedent. Counter-Applicant
contests Applicants' Application, demands strict proof of all allegations contained therein, and
requests the Court to deny the relief requested by Applicants.
WHEREFORE, PREMISES CONSIDERED, Counter-Applicant requests that citation be
issued as required by law to all persons interested in this estate in the manner required by law;
that the Court determine Decedent's heirs and distributees; that the Court appoint an attorney ad
litem to represent the interests of Decedent's unknown heirs; that the Court deny the relief .
requested by Applicants in Applicants' Application; that the Court create a dependent
administration of this estate and appoint Counter· Applicant as dependent administrator; that
letters of administration be issued to Applicant, that no other action be had in the probate court in
relation to the settlement of Decedent's estate other than the return of an inventory, appraisement
3
and list of claims of the Decedent's estate; that no appraisers be appointed; and that such other
and further orders be entered as the Court deems proper.
Respectfully submitted,
HOPPER MIKESKA, PLLC
By:
CRAIG HOPPER
State Bar No. 00794947
BRIAN T. THOMPSON
State Bar No. 24051425
chopper@hoppermikeska.com
bthompson@hoppermikeska.com.
400 W. 15 1h Street, Suite 408
Austin, Texas 78701
(512) 615-6195 Telephone
(512) 615-6194 Fax
ATTORNEYS FOR COUNTER-APPLICANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading has been served on
the following counsel of record on this .l.l.."'day of September, 2014, in accordance with Rule 21a
of the Texas Rules of Civil Procedure, either electronically through an electronic filing manager~
or non-electronically via hand-delivery, e-mail, facsimile, or mail (first class or certified):
Michael B. Knisely
Jason S. Scott
Osborne, Helman, Knebel, DeLeery~ L.L.P.
301 Congress Avenue, Suite 1910
Austin, Texas 78701
(512) 542-2011 (fax)
Brian T. Thompson
4
Verification
THE STATE OF TXAS §
§
COUNTY OF TRAVIS §
BEFORE ME, the undersigned notary public, personally appeared Sonemaly Phrasavath,
known to me to be the person whose name is subscribed below to this verification of the above
and foregoing Application, and on her oath, stated that such contains a correct and complete
statement of the matters to which it relates and all the contents thereof are within her personal
knowledge and are true, complete and correct.
SWORN TO and subscribed before me on September 18, 2014.
~~~~tl."¥,. KAREN BARKER
~~~\ Notary PubliC. State of Texos
!4!~/·i My commission Expires
~~:o;·~~
·q·-~
september 18. 2018 ...
.
Tab E
• Filed: 10/15/2014 10:43:13 AM
· Dana DeBeauvoir
Travis County Clerk
C-1-PB-14-00 1695
Debbie Mendez
Cause No. C-1-PB-14-001695
ESTATE OF · IN THE PROBATE COURT
STELLA MARIE POWELL, NUMBER ONE OF
•.DECEASED TRAVIS COUNTY, TEXAS
APPLICANTS JAMES POWELL AND ALICE HUSEMAN'S
SPECIAL EXCEPTIONS TO, AND MOTION TO DISMISS,
SONEMALY PHRASAVATH'S (1) CONTEST TO APPUCANTS'
APPLICATION FOR DETERMINATION OF HEIRSHIP AND ISSUANCE OF
LETTERS OF INDEPENDENT ADMINISTRATION AND (2) COUNTERAPPLICATION
TO DETERMINE HEIR.SlllP, FOR APPOINTMENT OF DEPENDENT·· ·
ADMINISTRATOR AND ISSUANCE OF LETTERS OF ADMINISTRATION
TO THE HONORABLE nJDGE OF SAID COURT:
James Powell and Alice Huseman C'Applicants") file this, their Special Exceptions to, and
Motion to Dismiss) Sonemaly Phrasavath's (l) Contest to Applicants' Application for
: Determination of Letters of Independent Administration and (2) Counterapplication tO Determine
~o-
~o--
~~o-
~- : Heirship, For Appointment of Dependent Administrator and Issuance of Letters of Administration
~~-·
~- l (the "Counter-Application"), and would respectfully show the Court as follows:
-===
-I·
==~:
1 I. Introduction
1.1 Applicant James Powell is a sUrviving brother of Stella Marie Powell ("Decedent");
~
- Applicant Alice Huseman is the surviving sister_ of De(fedent. Applicants filed an Application for
_ Determination of Heirship and Issuance of Letters of Independent Administration regarding the
== Decedent's estate. In response, Sonemaly Phrasavath filed her Counter-Application, claiming that
---
!!!!!!!!!!
1
•
$he was in a. same-sex, informal marriag~ with the Dece~ent, an,d .~t she is therefore an intestate
heir Qf t~e Decedent. The Counter-Application has numerous l~ga~ defects that, ultimately, c~9t
be cured, as set out below.
II. Special Exceptions
2.1 Pursuant to Texas Rule of Civil Procedure 91, a party may specially except to
another party's pleading to point out defects in that pleading. Tex. R. Civ. P. 91. The purpose of
special exceptions is to inform the opposing party of defects in her pleadings so she can cure them,
if possible, by amendment. lforizon/CMS llealthcare Co1p. v. Auld, 34 S.W.3d 887, 897 (Tex.
2000). Special exceptions are appropriate to challenge a party's failure to state a cause of action or
to establish that there is no right to the relief sought. Parker v. Barefield, 206 S.W.3d 119, 120
(Tex. 2006); Ross v. GoldsteinJ 203 ~.W.3d 508, 512 (Tex. App.-Houston [14th Dist.] 2006,110
pet.). If a party's claim for reli~f is not p,ermitted by law, an oppo~ing party may file special
exceptions and a motion to dismiss. See Ross v. Goldstein, 203 S.W.3d at 512; Wayne
Duddlesten, Inc. v. Highland Ins., 110 S.W.3d 85, 96-97 (Tex. App.-Houston [1st Dist.] 2003,
pet. denied).
2.2 Applicants assert the following special exceptions to the Counter-Application:
. (a) Applicants specially except to paragraph 3 of the Counter-Application on the
grounds that Contestant's allegation of a same-sex common law or infonnal maniage contained
therein is not permitted by Texas law. TX CONST. art. I, §32; TEx. FAM. CODE ANN. §§ 2.401,
6.204(b), (c); Ross v. Goldstein~ 203 S.W.3d at 514.
2
•
(b) Applicants specially except to paragraph 7 of the CounterwApplication on the
gt·ounds that, under Texas law, Contestant cannot be an intestate heir as claimed therein, because
same~sex com1non law or infonnal maniage is not pennitted by Texas law. TX CONST. art. I, §32;
TEX. FAM. CODE ANN.§§ 2.401, 6.204(b), (c).; Ross v. Goldstein, 203 S.W.3d at 514. 1
(c) Applicants specially except to paragraph 9 of the Counter-Applic~tion on the
grounds that, under Texas law, Contestant cannot be an intestate heir as claimed therein, because
same-sex common law or infonnal marriage is not pe1mitted by Texas law. TX CONST. art. I, §32;
TEX. FAM. ConE ANN.§§ 2.401, 6.20~(b), (c); Ross v. Goldstein, 203 S.W.3d at 514.
(d) Applicants specially ·except to paragraph 10 of the Counter..Application on the
grounds that Contestant's allegation of a same-sex conunon law or informal marriage referenced
therein is not permitted by Texas law. TX CONST, art. l, §32; TEX. FAM. CODE ANN. §§ 2.401,
6.20.4(b), (c); Ross v. Goldstein, 203 S.W.Jd at 514.
1
According to Texas Family Code Se(,-tion 6.204(c), the state or an agency or political
subdivision of the state may not give effect to any public act, 1'ecord, or judicial proceeding that
creates, recognizes, or validates a marriage between persons of the same sex, not· may it give
effect to any right or claim to any legal protection, benefit, or responsibility asserted as a result
of a marriage between persons of the same sex. Texas has determined that same-sex couples must
address post-death conveyances through other legal vehicles, such as contracts or testamentary transfers.
See Tex. H.R.J. Res. 6, § 2, 79th Leg., R.S. (2005) ("This state recognizes that through the designation of
guardians, the appointment of agents, and the use of private contractst persons may adequately and
properly appoint guardians and arrange tights relating to hospital visitation, property, and the entitlement
to proceeds of life insurance policies without the existence of any legal status identical or similar to
marriage.,).
3
•
· III. Motion to Dismiss
3.1 As noted above, if a party,s claim for relief is not permitted by law, an opposing
party may file special exceptions and a motion to dismiss~ See Wayne Duddlesten, Inc. v.
Highland
.
Ins., 110 S.W.3d at 96-97. A court should dismiss
.
a party's
.
claims if. the party
' .
does
not, or cannot, replead after the cout1 sustains special exceptions to the pleading at issue. See,
e.g., Baca v. Sanchez, 172 S.W.3d 93,97 (Tex. App.-El Paso 2005, no pet.).
3.2 Although Contestant must be allowed 1he opportunity to replead if the special
exceptions are granted, Applicants contend that there are no circumstances under which her
allegation that she has intestacy rights based on an informal, same-sex marriage would entitle her
to t'elief. See, e.g., Ross v. Goldstein, 203 S.W.3d at 514. Accordingly, if Contestant fails to
replead so as to assert a right to relief recognized by Texas law, this Court should dismiss her
Counter-Application.
.WHEREFORE, Applicants pray that the Court: set their special exceptions for hearing; after
the hearing, sustain their special exceptions and order Sonemaly Phrasavath to replead and cure her
pleading defects; if Sonemaly Phrasavath does not cure those defects in the allotted time, strike
those defective portions of her pleading and dismiss her countet-application and contest; and that it
grant such other and further relief to which the Applicants have shown themselves entitled.
4
•
Respectfully submitted,
OSBORNE, HELMAN,
KNEBEL & DELEERY, L.L.P.
301 Congress Avenue, Suite 1910
Austin, Texas 78701
Telephone: (512) 542~2002
Telecopier: (512) 542-2011
By: ~g~
MICHAEL B. KN ELY
State Bar No. 24047367
mbknisely@ohkdlaw.com
JASON S. SCOTT
State Bar No. 24029228
jsscott@ohkdlaw.com
ATTORNEYS FOR APPLICANTS
5
· M.~ LIMON
'
'
..
•
CERTIFICATE OF SERVICE
I certify that a true copy of the fot-egoing has this 15th day of October, 2014, been sent to
the following:
Craig Hopper Via Facsimile
BrianT. Thompson
Hopper Mikeska, PLLC
400 W. 15th Street, Suite 408
Austin, Texas 78701
(512) 615-6194 (fax)
Counsel for Sonemaly Phrasavath
Lorin Hayes Via Facsimile
The Law Offices of Douglas A. Booth, P.C.
3801 South Capital of Texas Highway, Suite 255
Austin, TX 78704
(512) 478-4926
Attorney ad litem
6
M.~ tJMON
Tab F
,t~ ,'•'' _,., ·-"""'
Filed: 11/7/2014 9:44:3~A
Dana DeBea v. ir
Travis County erk
No. c..t-PB.. l4-001695 C-1-PB-14-001695
· Connie Arzola
ESTATE OF § IN THE PROBATE COURT
§
STELLA MARIE POWELL, § NUMBER I
§
DECEASED § TRAVIS COUNTY, TEXAS
SONEMALY PHRASAVATH'S SUPPLEMENTAL RESPONSE TO SPECIAL
EXCEPTIONS AND MOTION TO DISMISS AND MOTION FOR CONTINUANCE
Sonemaly Phrasavath ("Sonemaly") hereby files this Supplemental Response to the
Special Exceptions and Motion to Dismiss filed by James Powell and Alice Huseman, and in
support thereof, Sonemaly would show the Court the. following:
Literally minutes before Sonemaly filed her Response to the Special Exceptions and
Motion to Dismiss filed by James Powell and Alice Huseman, which gives an exhaustive
compilation of all reported, post.. Windsor cases to have entertained a challenge to state laws
banning same·sex maniage, the Sixth Circuit issued its opinion in DeBoer v. Snyder, No. 14-
1241 (6th Cir., November 6, 2014}. In DeBoer, the Sixth Circuit, in a 2-l decision, became the
first U.S. Circuit Court of Appeals to uphold state bans on same..sex marriage and bucked the
clear trend of courts, including four other U.S. Circuit Courts of Appeals, who have struck down
such bans since Windsor. Therefore, Sonemaly's statement in her original response that "since
Windsor no circuit court of appeals has upheld such a ban'' is no longer accurate and Sonemaly
files this supplemental response to update the Court on this very recent development.
1
11\\\\\\\\\1\\\1\\\\\\111\1\I\\ 1\1\\\1\1\1\1\Ill\\~
000382285 ..
Respectfully submitted,
HOPPER MIKESKA, PLLC
By: Vi; sA:~
CRAIG HOPPER
State Bar No. 00794947
BRIANT. THOM.PSON
State Bar No. 24051425
chopperfi4hoppennikeska. com
bthompson@hoQpermikeska.com
400 W. 15th Street, Suite 408
Austin, Texas 78701
(512) 615-6195 Telephone
(512) 615~6194 Fax
ATTORNEYS FOR COUNTER-APPLICANT
CERTIFICATE OF SERVICE
r hereby certify that a true and correct copy of the foregoing pleading has been served on
the following counsel of record on this 7th day of November, 2014, in accordance with Rule 21 a
of the Texas Rules of Civil Procedure, either electronically through an electronic filing manager,
or non-electronically via hand-delivery, e-mail, facsimile, or mail (first class or certified):
Michael B. Knisely
Jason S. Scott
Osborne, Helman~ Knebel~ DeLeery" L.L.P.
301 Congress Avenue, Suite 1910
Austin, Texas 7870 l
(512) 542-2011 (fax)
Lorin Hayes
Law Offices of Douglas A. Booth, P.C.
3801 S. Capital of Texas Highway, Suite 255
Austin, Texas 78704
(512) 478·4926 (fax)
~~-
BrianT. Thompson
2
Tab G
Filed: 2/17/2015 8:05:22 AM
Dana DeBeauvoir
Travis County Clerk
C-1-PB-14-001695
Julie Montoya
Cause No. C-1-PB-14-00 1695
ESTATE OF § IN THE PROBATE COURT
§
STELLA MARIE POWELLJ § NUMBER ONE OF
§
DECEASED § TRAVIS COUNTY, TEXAS
APPLICANTS JAMES POWELL AND ALICE HUSEMAN'S BRIEF
IN SUPPORT OF THEIR SPECIAL EXCEPTIONS AND MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
James Powell and Alice Huseman (''Applicants") file this, their Brief in Support of Their
Special Exceptions and Motion to Dismiss, and would respectfully show the Comt as follows:
I. Background
1.1 Applicant James Powell is a surviving brother of Stella Marie Powell ("Decedent'');
Applicant Alice Huseman is the surviving sister of Decedent Applicants filed an Application for
Determination of Heirship and Issuance of Letters of Independent Administration regarding
Decedent's estate. In response, Sonemaly Phrasavath C~Contestant'') filed a Counter-Application,
claiming that she was in a same-sex, informal marriage with Decedent, and that she is therefore an
intestate· heir of Decedent.
1.2 The CounterwApplication has numerous legal defects that, under CUlTent Texas law,
catlllot be cured, as set out in the Applicants' Special Exceptions and Motion to Dismiss ("Special
Exceptions"). Namely, as described in the Special Exceptions, Texas law does not allow a patty to
-
try and prove a common law or infmmal same-sex marriage because Texas law does not and did not
at any pet1inent time allow any iteration of same-sex maniage.
1.3 As submitted to the CoU11 by the Attorney ad Litem in this case - in a report filed on
November 24, 2014 ~Decedent passed away without a will, and because Stella Marie Powell was
never legally mall'ied~ her only heirs at law are her surviving siblings and her mother. See Report of
Attorney ad Litem at 2.
1.4 In response to the Special Exceptions, Contestant filed a f01m entitled
"Constitutional Challenge to a State Statute," and a Response to the Applicants' Special Exceptions.
The Contestant's pleading makes numerous factual assertions in response to the points of law
presented in Applicants' Special Exceptions and it serves as a brief in support of her constitutional
challenge.
1.5 A hearing was held on November 12~ 2014 in front of Judge Prashner,. at which the
Coutt determined that it needed to allow the Texas Attotney General's office the oppol'tunity to
weigh in on the Contestant's constitutional cha1lenge pursuant to Section 402.010 of the Texas
Government Code. Accordingly, the healing on the Special Exceptions was continued and no
substantive issues were dete1mined by the Court. 1
1.6 Per co1respondence from Coutt staff, the CoU1t notified the Att01ney General's
office of the constitutional challtmge- as required by statute- on Nove1nber 12,2014.
1
A temporary administrator for the estate was appointed at the November 12, 2014 hearing.
2
1.7 On January 29,2015, a tepresentative of the Texas Attorney General's office sent an
email indicating that his office would not be seeking active involvement in this case. The email
specifically stated that the decision not to intervene "should not be construed, in any way~ as a
negative comment on the Constitutional viability of the statutes at issue." A copy of the email is
attached hereto as Exhibit "A."
1.8 Contestant has now set Applicants' Special Exceptions for hearing on February 17,
2015 at 2:00pm.
1.9 In anticipation of the healing, Applicants submit this brief in support of their Special
Exceptions.
II. Argument
2.1 Contestant's response to Applicants' Special Exceptions capitulates that existing
Texas law does not create a right to relief for her in this context. Rather than arguing that point) the
t·esponse directly and facially challenges the constitutionality of Texas, various laws regarding
same-sex man·iage. Specifically, Contestant seeks an order from this Court detetmining that Texas
Family Code Sections 2.401 and 6.204 and Article I, Section 32 of the Texas Constitution are
unconstitutional under the United States Constitution. Upon a finding that said laws are
unconstitutional, Contestant seeks the oppmtunity to try and prove that she and Decedent were
infotmally manied and presumes that same~sex maniage was a legally viable concept during the
time of Contestant~s relationship with Decedent. Contestant thusly seeks to establish that she is an
intestate heir of Ms. PoweU's estate.
3
rrm ;~;:; ,nJe
''.(:OnJ mmy o!ncs
on MAP.. 0 2 ?015
Dann DeBeau\'oir, Ccunty Clerk
-
.•
A. Applicants are not taking any position regarding the constitutionality of Texas'
ban on same-sex marriage.
2.2 The Applicants are not taking a position on the constitutionality of Texas' ban on
same-sex man·iage. Moreover, they do not need to take such a position to establish that their
Special Exceptions should be granted, as set out below.
B. Even if same-sex marriage were legal in Texas, Contestant couJd not, as a legal
or practical matter, establish one of the elements necessary to show she was
informally married to Decedent.
2.3 The Texas Family Code ptovides the criteria for establishing an infmmal marriage
between a man and a woman in Texas. See TEX. FAM. CODE ANN.§ 2.401. Assuming, for sake of
argument, that the Coutt determined that a same~sex infonnal ma11iage could exist and that
Contestant should be allowed to attempt to prove she was a pa11y to such a man-iage with Decedent,
Contestant could not establish one of the essential elements of such a claim.
2.4 The three elements of an informal man·iage are: (1) an agreement to be ma1Tied; (2)
after the agl.'eement, living together in Texas as husband and wife [for sake of argument, substitute
uas a manied couple" in this context]; and (3) representing to others in Texas that they are man-ied.
Russell v. Russell, 865 S.W.2d 929, 932 (Tex.l993). A common-law marriage does not exist until
the concurrence of all three elements. Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex.App.-Houston
(1st Dist.] 1991, wtit denied). The burden of proof is on the party seeking to establish the existence
of such a man-iage. State v. Mireles, 904 S.W.2d 885, 888 (Tex. App.--Corpus Christi 1995, pet
ref d).
4
- - - - - - - - - - · - - - · - · - · · - · · · · - · - · · - · -....
~--
-
2.5 The statutory requirement of "representation to others" is synonymous with the
judicial requirement of "holding out to the public." Eris v. Phares, 39 S.W.3d 708, 714-15
(Tex.App.-Houston [1st Dist.] 2001, pet. denied). Jd. at 715. Occasional introductions as husband
and wife do not establish the element of holding out.Id. (citing Winfield, 821 S.W.2d at 651).
2.6 If "holding out" is a necessa1y element of establishing an infonnal mal1'iage, that
element cannot be met in a situation where, as here, the parties were allegedly holding themselves
out as something that did not exist.
2.7 An analogous situation arose in the case of Farrell v. Farrell, --- S.W.3d ----, 2015
WL 364093 (Tex. App.-El Paso 2015, no pet. h.). In that case, the parties attempted to establish a
Texas common law or infom1al marriage in pa11 based on time they spent living together in New
Mexico. As the Court pointed out, a problem with their argument was that New Mexico does not
recognize common law mru.1iage. Thus, the Couli dete1mined that there could be no cornn1on law
matTiage established based on the time they spent together in New Mexico. See id at 2.
2.8 Here, in order for Contestant and Decedent to have held themselves out as mall'ied~
those witnessing the holding out would have needed to understand it to be a legally viable
possibility. Similar to a couple holding themselves out as man·ied as common law spouses in New
Mexico, a same-sex couple in Texas (at least while Stella Marie Powell was alive) could not be
understood by others to be legally married because the applicable law at the time did not pennit
such a marriage.
5
...........
-·
2.9 Moreover, although the heruing on the Special Exceptions is not an evidentiary
proceeding, and though it has not been established that Contestant may even legally attempt to
prove an informal m.aniage, it is worth noting that, on December 31 20 12, the Decedent filed a
swotn pleading in bankruptcy court indicating that she was not manicd. See Exhibit "B', at p.l, p.2,
Exhibit D, Schedule I, and Statement of Financial Affairs, No. 16 (highlighted portions). That
swmn pleading was filed after 2008, when Contestant claims she and Decedent were manied. See
Response at 2.
C. This case is different from the DeLeon case.
2.1 0 Contestant's constitutional arguments rely in large pa1t on the Westetn District of
Texas' decision in the DeLeon case, which was decided in 2014 and which was argued to the
United States Court of Appeals for the Fifth Circuit earlier this year. See De Leon v. Perry, 975
F.Supp.2d 632 (W.D.Tex.2014). However, the present case is distinguishable from DeLeon case
for several important reasons.
2.11 First, the DeLeon case is distinguishable on its facts. That case involved two
couples: one seeking to procure a Texas marriage license and one seeking to challenge Texas'
refusal to recognize an othetwise valid marriage effectuated in Massachusetts. See id
2.12 Both couples in DeLeon were asserting that they had a right to legal validation of
their unions through the recognition of the marriages by the government. As the Court specifically
noted in DeLeon, "[m]aniage involves one of the most intimate and personal choices a person may
6
-
make in a lifotime." Id. at 658 (emphasis added) (quoting Planned Parenthood v. Casey, 505 U.S.
833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)).
2.13 Contestant's Response presumes the existence of a valid man-iage. However, what
she is actually seeking is the tight to try and prove, retroactively, the existence of an inf01mal
matTiage at a time and place when a valid man·iage could not have existed. Unlike in De Leon, in
which both parties were present to ask for government recognition of their union, in this case both
pa11ies are not before the Cou11. The question facing the Court in this case is not whethet· the
decision by two people to marry during their lifetime must now be recognized by the State of Texas.
2.14 Second, the DeLeon case is distinguishable because it involved different legal issues:
the equal protection challenge and due process challenge raised in DeLeon were based on the fact
that the S1ate of Texas refused to allow one couple to marry, and refused to recognize the out~of-
state maniage of another couple. Here, the legal issue is necessarily different because this is a case
that is inherently about property lights. The closest to an on point case that the Applicants have
identified is the Texas Cout1 of Appeals' decision in Ross v. Goldstein, 203 S.W.3d 508, 512 (Tex.
App.-Houston [14th Dist.] 2006, no pet.). That case was an estate proceeding in which the
same-sex partner of the decedent brought claims against the administrator of the estate, seeking
an interest in the estate based on a Hmarriage-like~' doctrine. The Cou11 of Appeals rejected the
arguments that the same-sex partner had an interest in the estate. !d. at 514.
2.15 Citing to Texas law and public policy, the Court stated that "Texas has determined·
that same-sex couples must address their patticular desires through other legal vehicles such as
7
.......-......
contracts or testamentary transfers. See Tex. H.R.J. Res. 6, § 2, 79th Leg., R.S. (2005) ('This state
recognizes that through the designation of guardians, the appointment of agents, and the use of
private contracts, persons may adequately and properly appoint guardians and an umc~.c on
Dana 0GE82l!VOir, Count)• cMAR D.--2 _2015
·'·'"'"',o_,-, L~~
M~ tJ~J~O~
..-.-.
States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987)). Instead, a
party seeking to invalidate a statute must establish that every application of the statute violates the
constitution. Id. (citing Nootsie, Ltd v. Williamson Co. Appraisal Dist.J 925 S.W.2d 659, 663
(Tex.1996)).
2.23 In DeLeon, the Cmui found that Texas law denied the Plaintiffs' access to the
institution of marriage and its numerous lights, privileges and responsibilities in violation of their
equal protection and due process rights. De Leon v. Perry, 975 F.Supp.2d at 666. Conceivably,
however, Texas law could be changed to allow all citizens, including same-sex couples, the right to
many and yet not afford Contestant the relief she seeks.
2.24 There are only a small number of states that currently recognize conunon law or
informal matTiages, and there is a great deal of val'iation in those states' laws tegarding such
marriages. For example} in Colorado, common law matTiages are only recognized if they were
established on or after September 1, 2006. See Colo. Stat. §14~2-109.5. In Pennsylvania, on the
other hand, no common law marriage putatively entered into after January 1, 2005 is recognized,
but such mm1iages entered into prior to that date are considered valid. See Pa. Cons. Stat. Ann. tit.
23, § 1103. Texas law could be changed to address all of the alleged Constitutional infringements
resulting from Texas' ban on gay maniage- including, for example, allowing infonnal same-sex
common law tnatTiage prospectively- without recognizing retrospective relief in this context.
11
III. Conclusion
3.1 For the l'easons discussed above, Applicants assett that their Special Exceptions
should be granted.
WHEREFORE, Applicants pray that the CoUt1: sustain their special exceptions and ordet·
Sonemaly Phrasavath to replead and cure her pleading defects; if Sonemaly Phrasavath does not
cure those defects in the allotted time, strike those defective portions of her pleading and dismiss her
counter-application and contest; and that it grant such other and further relief to which the
Applicants have shown themselves entitled.
Respectfully submitted,
OSBORNE, HELMAN,
KNEBEL & SCOTT, L.L.P.
301 Congress Avenue, Suite 1910
Austin, Texas 78701
Telephone: (512) 542-2002
Telecopier: (512) 542-2011
By: [;/I1A-t J5 ~
MICHAEL B. KNlLY
State Bar No. 24047367
mbknisely@ohkslaw.com
JASON S. SCOTT
State Bar No. 24029228
j sscott@ohkslaw.com
ATTORNEYS FOR APPLICANTS
12
.. -
CERTIFICATE OF SERVICE
I certify that a true copy ofthe foregoing has this 17th day of February, 2014, been sent
to the followh1g:
Craig Hopper Via Facsimile
BrianT. Thompson
Hopper Mikeska, PLLC
400 W. 15t11 Street~ Suite 408
Austin, Texas 78701
(512) 615"6194 (fax)
Counsel for Sonemaly Phrasavath
Lorin Hayes Via Facsimile
The Law Offices of Douglas A. Booth, P. C.
3801 South Capital of Texas Highway, Suite 255
Austin, TX 78704
(512) 478-4926
Attorney ad litem
John Crane Via facsimile
Law Offices of John A. Crane, P.L.L.C.
4425 MoPac South
Building II, Suite 204
Austin, Texas 78735
Temporary Administrator
Michael B. Knisely
13
Michael B. Knisely
From: Dower, Benjamin
Sent: Thursday, January 29, 2015 5:48PM
To: Brian Thompson
Cc: const_claims; Michael B. Knisely; emily.meisgeier@co.travis.tx.us
Subject: RE: Notiee of Hearing
While ualt'-S" is my keyboard shortcut for§ in Microsoft Word, apparently in Microsoft Outlook It just sends your
email. lesson learned. If you'll just disregard the prior email1 which was sent before It was finished (hence the lack of
signature), this is the complete message:
RE: Sta.te of Stella Marie Powell, Deceased, Cause No. C-1-PB~l4~001695, In Probate Court Number 1, Travis County,
TE!X~S
Dear Brian Thompson. .
Thank y:au for providing the Office of the Attorney General of Texas with notice regarding the constitutional challenge to
T~xas Family Code§ 2.401, Texas Family Code§ 6.204(b).. and Article I,§ 32 of the Texas Constitution in the above-styled
case. At this time, the Office of the Attorney General of Texas has decided not to seek direct involvement in this
case. This dec;ision should not be construed, in any way, as a negative comment on the Constitutional viability of the
statutes at issue.
Although the Office of the Attorney General of Texas has decided not to intervene at the present time~ we respectfully
ask that-if there is a ruHng on the constitutionality of the statutes in question and that ruling is appealed-you please
send the relevant notice and subsequent pleadings to this office. Similarly, if the party bringing the constitutional
challenge later amends that challenge or any party adds a new constitutional challenge, please send those pleadings to
this office. We appreciate your ongoing assistance.
Yours with respect,
Benjamin L. Dower
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
512.475.4078 (direct)
512.320.0667 (fax)
ben jam i n.dower@texasattorneygenera l.gov
ATTORNEV~CLIENT PRIVILEGED: This is a confidential communication and Intended for the addresse.e(s) only. Any
unauthorized interception or disclosure of this transmission is prohibited. If you are not the intended recipient of this
message, please notify the sender and destroy this and all copies of this communication. Thank you.
From: Dower, Benjamin
Sent: Thursday~ January 29, 2015 5:32PM
To: 'Brian Thompson'
Cc: const_claims; Michael B. Knisely; emily.meisgeier@co.travis.tx.us
Subject: RE: Notice of Hearing
Dear Mr. Thompson,
Thank you for providing the Office of the Attorney General of Texas with notice regarding the constitutional challenge to
Texas family Code in the above-styled case. At this time, the Office of the Attorney General of Texas has decided not to
seek direct involvement in this case. This decision should not be construed, in any way, as a negative comment on the
Constitl,ltional viability of the statutes at issue.
Although the Office of the Attorney General of Texas has decided not to intervene at the present time, we respectfully
ask that-if there is a ruling on the constitutionality of the statutes in question and that ruling is appealed-you please
send the relevant notice and subsequent pleadings to this office. Similarly, if the party bringing the constitutional
challenge later amends that challenge or any party adds a new constitutional challenge, please send those pleadings to
this office. We appreciate your ongoing assistance.
From: Brian Thompson [mailto:bthompson@hoppermikeska.com}
Sent: Friday, January 23 1 2015 2:16 PM
To: Dower, Benjamin
Cc: const_claims; Michael B. Kniselyi emily.meisgeier@co.travis.tx.us
Subject: Notice of Hearing
Benjamin:
Judge Herman has instructed me to give you the attached notice of hearing.
Sincerely,
Bri·an Thompson
(512}615-61951 Fax (512.) 610-1306
HOPPER MIKESKA, PLLC
400 West 15th Street, Suite 408
Austin, Texas 78701
bthompson @hoppermikeska.com
NOTICE: Tt1ts email contains information that is confidsntfal, proprietary, privileged, or otherwise legally protected from disclosure. If you are
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IRS CIRCULAR 230 NOTICE: If any part of this email or ~my attachment constitutes written advice addressing a federal ta)( lsstle, it was not
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circumstances.
2
·-
12/31/2012 02:26:14pm
81 (Official Form 1) (12/11)
United States Bankruptcy Court
WESTERN DISTRICT OF TEXAS Voluntary Petition
AUSTIN DIVISION
N~;~meof Debtor {lfindlvidUi:!l, «.... "'·' :.; ··. :·::.·· ....... ·:· ·.·;: .: .h. ·i....• ,., ............ : ... ·~·& . · .· ..... · ····.:,.··.::... ·." ,.. ,. . ·.,::: ,.,,,. .,,.,.....
(ft¥U."'~fJiet4MUjy every ind1\tidual debtor. 'lfa joinfpetiliOtHs~,. eadlsrxwae must tmrljllettnmd at~· a separate Exhibit' b.)
fil Exhibit 0, completed and signed by the debtor. is attached and made a part of this petition.
tf this Is a joint petition:
0 Exhibit 0, also completed and signed by the joint debtor, is attached and made a part of this petition.
Information Regarding the Debtor -Venue
(Check any applicable box.)
21 Debtor has been domiciled or has had a residence, principal place of business, or principal assets In this District for 180 days immediately
preceding the date of this petition or for a longer part of such 180 days than In any other District.
0 There is a bankruptcy case concerning debtor's affiliate, general partner, or partnership pending in this District.
0 Debtor is a debtor in a foreign proceeding and has its principal place of business or principal assets in the United States in this District, or has no
principal pia~ of business or assetS in the United States but is a defendant in an action or proceeding [in a federal or state court] in this District,
or the interests of the parties will be served in regard to the relief sought In this District.
Certification by a Debtor Who Restdes as a Tenant of Residential Property
(Check all applicable boxes.)
0 Landlord ha$ a judgment against the debtor for possession of debtor's residence. (If box checked, complete the following.)
(Name of landlord that obtained judgment)
(Address of landlord}
0 Debtor claims that under applicable non bankruptcy law, there are circumstances under which the debtor would be permitted to cure the entire
monetary default that gave rise to the judgment for possession, after the judgment for possessic:m was entered, and
0 Debtor has included with this petition the deposit with the court of any rent that would become due during the 3Q...day period after the filing of the
pet'ltlon.
0 Debtor certifies that helshe has served the Landlord with this certification. (11 U.S.C. § 362{1)),
12131/2012 02:26:14pm
81 (Official Form 1) {12/11) Page3
Voluntary Petition Name of Debtor(s): Stella M. Powell
(This page must be completed and filed in every case)
Signatures
Signature(s) of Debtor(s) (Individual/Joint) Signature of a Foreign Representative
l declare under penalty of perjury that the Information provided in this petition Is I declare under penalty of pe!jwy that the inforrnaUon provided io this petition is true
true end correot. and correct, that I am the foreign representative of a debtor in a foreign proceeding,
[If petitioner is a!) individual whose debts are primarily consumer debts and has and that I am authoriZed to file this petition.
chosen to file under chapter 7] I am aware that I may proceed under chapter 7,
11 , 12 or 13 of title 11, United States Code, understand the relief available under
(Check only one box.)
each sUCh chapter, ar'ld chOOSe·to pnx:eed undercnapter7.
[If no attomev represents me and no bankruptcy petition preparer signs the 0 I request relief in accordance with chapter 15 of title 11, United Slates Code.
~J I have ~taloed and read the notice required by 11 u.s.c. § 342(b). Gertif~ed copies of the documents required by 11 U.S.C. § 1515 rue attached.
! request relief In accordance with the chapter of title 11, United States Code,
specified in this petition.
0 Pursuant to 11 U.S.C. § 1511,! request relief in accordance with \he·chapterof
title 11 specified in this petition. A certified copy of the order granting
fe<:(lgnHion ot the foreign main proceeding Is attached.
X /s/ Stella M. Powell
Stella M. Powell X___________________________
(Signature of Foreign Represen1aUve)
X--------------------------
(Printed Name of Foreign Representative)
Telephone Nl!mber Of not represented by attorney)
1213112012
Date Date
Signature of Attorney* Signature of Non·Attomey Bankruptcy Petition Preparer
X lsi Douglas J. Powell I declare under p.;tnatty of pe~lJIY that: (1) 1am a bankruptcy petition preparer as
defined in 11 U.S.C. § 11 O; (2) I prepared thiS document ror compensation and
Douglas J, Powell BarNo.16194900 have provided the debtor with a copy of this document and the notices and
infonnation required under 11 U.S.C. §§ 110(b), 110{h}, and 342(b); and, (3) if rules
Law Offic4ts of Douglas J. Powell, P.C. or guidelines have been promulgated pursuant to 11 u.s.c. § 110(h) s~ing a
maximum fee for services chargeable by bankruptcy petition preparers, I have
820W.1oth Street
given the debtor notice of the maximum amount before prepllftng any document
Austin, TX 78701 for filing for a debtor or accepting any fee from the debtor, as required In that
section. Official Form 19 is attached.
Phone No. __________ Fax Na . _~~-·-~----
Printed Name and title, if any, of Banl' petition preparer Is not
Printed Name of Authorized Individual an individual.
Title of Authorized Individual lf more than one parson prepared this document, attach additional sheets
conforming to the appropriate official form for each person.
A bankruptcy petition preparer's f&ilute to comply with the provisions of title 11
Date and the Federal Rules of Bankruptcy Procedure may result in fines or
!mprisonmentorbo!h. 11 U.S.C. § 110; tBU.S.C. § 156.
·-.
12/3112012 02:26:14pm
B 10 (Official Form 1, Exhibit D) {12109) UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re: Stella M. Powell Case No.
(if known)
Debtor(s)
;,;&»HJBrf'b'-JNDIVIDUAL DEBTOR'S STATEMENT OF COMPLIANCE WITH
.. . . . CREDIT COUNSELING REQUIREMENT
'Warnlng: You must be able to Check truthfully one of the five statements regarding credit counseling listed below. If you
cannot do &o, you are not eltgible to flle a bankruptcy case, and the court can dismiss any case you do file. Jf that happens,
you will lose whatever filing fee you paid, and your creditors will be able to resume collection activities against you. If your
case is dismissed and you file another bankruptcy case later, you may be required to pay a second filing fee and you may
have to take extra steps to stop creditors' collection activities.
Every indMduaf debtor must file this Exhibit D. ff a joint petition is filed, each spouse must complete and file a separate Exhibit D.
Check one of the five statements below and attach any documents as directed.
~ 1. Within the 180 days before the filing of my bankruptcy case, I received a briefing from a credit counseling agency
approved by the United States trustee or bankruptcy administrator that outlined the opportunities for available credit counseling
and assisted me in performing a related budget analysis, and I have a certificate from the agency describing the services
provided to me. Attach a copy of the certificate and a copy·of any debt repayment plan developed through the agency.
0 2. Within the 180 days before the fillng of my bankruptcy case, I received a briefing from a credit counseling agency
approved by the United States trustee or bankruptcy administrator that outlined the opportunities for available credit couseling
and assisted me In per:tormlng a r-elated budget analysis. but I do not have a certificate from the agency describing the services
provid~d to me. You m11st fit~ a copy of a certificate from the agency describing the seTVices provided to you and a copy of any
debt repayment plan developed through the agency no later than 14 days after your bankruptcy case is filed.
0 3. I certify that I requested credit counseling services from an approved agency but was unable to obtain the services during
the seven days from the time I made my request. and the following exigent circumstances merit a temporary waiver of the credit
counseling requirement so I can file my bankruptcy case ~ow. [Summarize exigent circumstances here.]
If your certification is satisfactory to the court, you must still obtaln the credit counseling briefing within the first 30 days
after you file your ~ankruptcy petition and promptly file a certificate from the agency that provided the counseling, together
with a copy of any debt management plan developed through the agency. Failure to fulfill these requirements may result in
dismissal of your case. Any extension of the 30-day deadline can be granted only for cause and Is limited to a maximum of
15 days. Your case may also be dismissed if the court Is not satisfied with your reasons for fUing your bankruptcy case
without first receiving a credit counseling briefing.
M~ liMON
-
12/31/2012 02:26:14pm
a 10 {Official Form 1, Exhibit D) {12109) UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re; Stella M. Powell Case No.
(if known)
Oebtor(s)
EXHIBIT 0 .. JNDIVIDUAL DEBTOR'S STATEMENT OF COMPLIANCE WITH
CREDIT COUNSELING REQUIREMENT
Continuation Sheet No. 1
0 4. Jam not required to receive a credit counseling briefing because of: [Check the applicable statement.] [Must be
accompanied by a motion for determination by the court.]
0 Incapacity. (Defined in 11 U.S.C. § 109(h}(4) as Impaired by reason of mental illness or mental deficiency so as to
be incapable of realizing and making rational decisions with respect to financlal responsibilites.);
0 Disability. (Defined In 11 U.S.C. § 109(h)(4) as physically impaired to the extent of being unable, after reasonable
.effort, to participate in a credit counseling briefing in person, by telephone, or through the Internet.);
D Active military duty in a military combat zone.
0 5. The United States trustee or bankruptcy administrator has determined that the credit counseling requirement of
11 U.S.C. § 109(h) does not apply in this district.
I certify under penalty of perjury that the information provided above Is true and correct.
Signature of Debtor. lsi Stella M. Powell
Stella M. Powell
Date: 12/3112012
~~~~
M~ liMOI~
-~----------------·-···-··-·--·- ......... .
12131/2012 02:26:14pm
UNITED STATES BANKRUPTCY COURT
WESTERN DlSTRICT OF TEXAS
AUSTIN DIVISION
IN RE: Stella M. Powell CASE NO
CHAPTER 13
VERIFICATION OF CREDITOR MATRIX
The above named Debtor hereby verifies that the attached list of creditors is true and correct to the best of his/her
knowledge.
Date 12131/2012 Signature /s/ Stella M. Powell
Stella M. Powell
Date------------- Signature _ _~----~-----------
-·
12/3112012 02:26:14pm
Capital One Bank USA NA
PO Box 30281
Salt Lake City, UT 84130
Citi/CBNA
PO Box6497
Sioux Falls~ SD 4 3224
Citicards
701 E. 6th Street N
Sioux Falls, SD 57104
H.SBC Mortgage Services
PO Box 60139
City of Industry~ CA 91716
Hughes, Watters & Askanase, L.L.P.
Three Allen Center
333 Clay, 29th Floor
Houston, 1X 77002
Internal Revenue Service
P. 0. Box 7346
Philadelphia~ P A 19101 7346
M
Law Offices of Douglas J. Powell, P.C.
820 W. lOth Street
Austin, TX 78701
Travis County Tax Collections
.Attn: Tina Morton
1010 Lavaca
Austin) TX 78701
·-
B6A (Official Form SA) (12/07)
ln re Stella M. Powell Case No . ..;.;12~-..;.;12;;.;.;8;....:4~2----
(ifknown)
SCHEDULE A - REAL PROPERTY
.r CU.rre-nt Value
.s of Debtor"s
Description and Nature of Debtor's ~~ lo•rest.in
Location of Interest fn Property :!§ Property, Without Amount Of
Property ::e
.. -og Deducting Any Se-cured Claim
io Secured Claim
so
.D ...
:X::
or Exemption
Homestead Fee simple - $589,702.00 $564,200.00
Single family dwelling located at
607 W. 32nd Street
Austin, Texas 78705
Lot 8 *& E11.5FT Lot 7 Blk 11 Olt 75-76 Div D Gypsy
Grove
Value per Travis .central Appraisal District
Property is to be sold
Condominium Fee simple - $260,000,00 $0.00
3601 Turtle Creek Blvd. Dallas TX 75219
Value shown is the Dallas Co. Tax appraisal value·
Property is rented.
('J)U!'~"·j C\f:'"\ 'T"'a\~S Cr. l.n'!ty,
.I
t~G:;;!!aDeBe 1ti\IOl ~t\:Jt11 tl1at ~t~isis a tru~ ar d
TeY.as, do M· el:lyo
coFecl (:0\'>Y ~SSBl 18 ~i'p;;.ears o1 record i~
.ana and seal o·i office on lifTJ 2 Z015
oam DeBeauvoir, Coun\.1C'
em
...
.' ByD eputy:
-.:.::...-.
Total: $8'49,702.00
(Report also on Summary of Schedules)
.......
\)\j\0&ufv'\~
d LIMON
-
B6B (Official Form 6B) (12/07)
In re Stella M. Powell Case No. _12...-_12_8_4_2_ _ _ _ __
{if known)
SCHEDULE B .. PERSONAL PROPERTY
...:t
c:: Current Value of
~~ Debtors interest
tJS''c in Property, ·
.d)
c: ~e
~E
WHhout Deducting ·
Type of Property Description and Location of Property any Secured ··
z0 -oo
~()
.0'- Claim or
Cl)0
::1 Exemption
::c.
1. Cash on hand. Cash on hand - $100.00
.2. Checking, savings or other flnan- Chase ~
$23.492.00
cial accounts, certificates of deposit savings acct: xxxx3904
or shares in banks, savings and loan,
thrift. building and loan, -and home~ Chase - $9,600.00
stead associations, or credit unions, checking acct: xxxxx1892
brokerage houses, or cooperatives.
Chase - $12,000.00
checking acct: xxx1011
UFCU - $34,823.85
Savings; $182.50
Money Market: $31,115.84
Checking: $3,424.39
3. Security deposits with public util~ X
itles, telephone companies, land-
lords, and others.
4. Household goods and furnishings, Sofa - $300.00
including audio, video and computer
equipment. Sectinal sofa ~
$4oO.OO
Love seat ~
$150.00
1 Side chairs - $200.00
Color TV - $35.00
41amps - $100.00
Computer - $100.00
Stove - $500.00
!'"':""''"' l'• G . .-:t" 110ir C.I)L;f'~':/ r,:f'"'(, ; ~VI~ ;OUillWi
B6B (Official Form 68) (12/07) -M Cont.
In re Stella M. Powell Case No. """"12'-~-'-12:;..;..8-'4-'2_ _ _ _ __
(if known)
SCHEDULE B - PERSONAL PROPERTY
Continuation Sheet No. 1
c:
·c;. Current Vatu.e of
, ...~ Debtor's Interest
.!!!§ in Property,
Q)
c ~E Without DeduCting
Type of Property .0 Description and location of Property ·E any Secured
:z. 'Oo
co
!~ Claim or
00
::'l EX'emption
l:
Refrigerator k
$500.00
Dishwasher - $100.00
Microwave oven M
$30.00
Small appliances ~
$50.00
Pots & pans - $100.00
Dishes & glassware - $70.00
Flatware ~
$40.00
Sterling ware ~
$500.00
Crystal - $500.00
Table & chairs - $1,000.00
China cabinet - $500.00
Buffet - $500.00
Bed - $70.00
Dresser - $500.00
Chest - $350.00
2 Night stands - $250.00
21amps - $30.00
2 small tables - $30.00
Oress.er - $400.00
~'""-,..,"'f'?.-,P':t"';'>' r lf'""-j •"' ~ ... '"'-..., ·. :jl>';:
.... ....,
ii.,...t~1 ~"'JI'I
868 (Official Form 68) (12/07) ~-Cont.
In re Stella M. Powell Case No. ...:.12::..·..;.1::..28:.:_:4:...:;2~----
(ifknown)
SCHEDULE B .. PERSONAL PROPERTY
Continuation Sheet No. 2
E Current Value of
:g~ Debtor's Interest
4)•'.2 in Property,
(!)
c ~~
RE
Without Deducting
Type of Property Description and Location of Property
z0 "'o
fijo
any Secured
.0'- Claim or
tl)0
::I Exemption
:::r:
Lamp - $100.00
Washer & dryer - $300.00
Garden tools - $20.00
Electric tools - $20.00
Lawn mower - $50.00
5. Book;-;; pictures and other art books - $400.00
objects; antiques; stamp, coin,
record, tape, compact disc, and other Decorative items, pictures, etc. - $500.00
collections or collectibles.
6. Wearing apparel. Clothing, shoes & accessories - $700.00
7. FuT$ and jewelry. 2 watches - $200.00
Chains - $1,0QO.OO
Rings ~
$2,000.00
8'. Fireanns and sports, photo- X
graphic, and other hobby equipment.
9. lntere·sts in insurance policies. New York Life - $0.00
Name insurance company of each polciy
policy and itemize surrender or acquired July, 2010 value $100,000
refund value of each.
Life insurance provided via Fros Design - $0.00
Unum Core Lif I AD&D Plan
acquired 6121112 Value: 150,000
868 (Official Form 68) (12/07} --Cont.
In re Stella M. Powell CaseNo. _12_·_1_28_4_2_____________
(if known)
SCHEDULE B -PERSONAL PROPERTY
Continuation Sheet No. 3
...;
c: Current Value of
~~ Debtors tnterest
.~f2 In Property,
CD
c: ~~ Without Deducting
Type of Property 0 Description and Location of Property -oo
-E any Secured
z ~()
.0'-
(/)0
Claim or
:::s Exemption
:::c
10. Annuities. Itemize and name John Hancock Venture in Morgan Stanley acct . $151 ,249.00
each issuer. policy # xxxx5825
11, Interests in an education IRA as X
defined in 26 U.S.C. § 530(b)(1) or
under a qualified State tuition plan
as defined in 26 U.S.C. § 529(b)(1 ).
,Give particulars. (File separately
the record(s) of any such interest(s).
11 U.S.C. § 521 (c).)
12. Interests in IRA. ERLSA, Keogh, Morgan Stanley ~
$14,060.99
or other pension or profit sharing IRA rollover
plans. Give particulars.
401K w
$69,000.00
Confluence Devetopment Group
John Hancock
13. Stock and interests in incorpo- SkyFiber, tnc. 30,000 shares - $0.00
rated and unincorporated businesses. Stock has no value at 1his time.
Itemize. Company is still doing business, but is not making any
money.
Moler lnternaltional - $0.00
6,000 shares -- no value
14. tnterests in partnerships or joint X
ventures. Itemize.
15. Government and corporate bonds X
and other negotiable and non-
negotiable instruments.
16. Accounts receivable. X
·- ..... .... ,...,,.,,.~, ,._ .lie:. f~r: until.
T. JZli81Jii::le,e,-;v~u• 1 ' ~:'.:"·'.' ', ,'~~- i , :. ;
2 2015
·-
868 {Official Form 68) ('12/07) --Cont.
In re Stella M. Powell Case No. 12-12842
------------------
(if known)
SCHEDULE B .. PERSONAL PROPERTY
Continuation Sheet No. 4
.:-·
c Current Value of
'(5
-,;e. Debtor's Interest
t~.i"'C:: In Property,
Q) ~:l
·E Without Deducting
c
Type of Property 0 Description and Location of Property ~e
z -oo any Secured
~(.) Claim or
..0'-
u;O
:::;J Exemption
:c
17. Alimony, maintenance, support, X
and property settlements to which the
debtor is or may be entitled. Give
particulars.
18. Other liquidated debts owed to X
debtor including tax refunds. Give
particulars.
19. Equitable or future interests, life X
estates, and rights or powers exercis·
able for the benefit of the debtor other
than those listed in Schedule A - Real
Property.
20. Contingentand noncontingent X
interests in estate of a decedent, death
benefit plan, life insurance policy, or
trust.
21. Other contingent and unliqui- Claim against insurance company for damage to the roof. . $0.00
dated claims of every nature. HSBC Insurance roof check
including tax refunds, counterclaims Money has escheated to the State at this time and Debtor
of the debtor, and rights to setoff is working on getting it back and sending it to the insurance
claims. Give estimated value of each. company.
22. Patents, copyrights, and other X
inteltectu~.l property. Give
particulars.
23. Licenses, franchises, and other X
general intangibles. Give particulars.
,.., '"' ~·nrf\ir l"',otW~V Ch~r-1(, "fi.WlS ( :o~nt)
1~ L;G.na u~'-''f!J"' · · • '~'trht t+1ai tl1\S ~s l2! u IJ'? "'"'-
BBB (Official Form 68} (12/07) ~~Cont.
In re Stella M. Powell Case No. 12-12842
------------------
(lfknown)
SCHEDULE B • PERSONAL PROPERTY
Continuation Sheet No. 5
:g Current Value of
~~ Debtor's Interest
~ § in Property,
~E Without Deducting
Typ~ of Property Description and Location of Property -o § any Secured
j~ .Claimor
~0 Exemption
J.:
24. Customer lists or other compilations X
containing personally identifiable
information (as defined In 11 U.S.C.
§ 101(41A)) provided to the debtor by
Individuals in connection with obtaining
a product or service from the debtor
primarily for personal, family, or
household purposes.
25. Automobiles, trucks, trailers, 2005 Volkswagen Passat $6,000.00
and other vehicles and accessories. 75,000 miles
1995 lntiniti 045 (not running) $1,500.00
26, Boats~ motors, and accessories. X
27. Aircraft and accessories. X
28. Office equipment, furnishings, Desk - $100.00
and supplies.
Bookcase cabinet - $500.00
Computer desk - $50.00
File cabinet - $100.00
Computer & monitor - $150.00
Power supplies - $20.00
29. Machinery, fixtures, equjpment* X
and supplies used in business.
30.1nventory. X
-.
868 (Official Form 68) (12107) --Cont.
In re Stella M. Powell Case No. ...:..12::..~...:..1::..28;::...4:.;;.:2:...--_ _ _ __
(if known)
SCHEDULE B - PERSONAL PROPERTY
Continuation Sheet No. 6
·ai Current Value of
Debtor's Interest
:~
.s!§ in Property,
$
c S:E
~E
W~hout Deducting
Type of Property 0 Description and Location of Property -co any Secured
z §u
.0'- Claim or
cno Exemption
:::J
J:
31 . Animals. 3 dogs & 1 cat - $4.00
32. Crops- growing or harvested. X
Glve particulars.
33. Farming equipment and X
implements.
34. Farm supplies, chemicals, and X
feed.
35. Other personal property of any X
kind not already listed. Itemize.
~oun~
r. D::.::~z Ge?~;:;:;•mlr, Cnur~l 81~"'<. T-avis ( md i
texas, do nemtly CBrtity tna1 ;:hiE. Is a tru~
correct .:;opy Bl!; .;arne apPf'.-811: 1)1 record il1 myol i!oo.
Witness my hand and seal of office 011
I
t~ .:;--::":;pi~
Dana DeBeauvou. Coonl)l
~~~ 0 2 2015
, . -'>.~ By Dep uty·.
tfl~
6 continuation sheets attached Total > _}335,344~8~
(Include amounts from any continuation sheets attached. Report total also on Summary of Schedules.)
\J\}\U2M.MNJ
·-· .............
BSC (Official Form 6C} (4/10)
In re Stella M. Powell Case No. . .:;.12=·. . .:.12=8;:;. .:4=2_ _ _ _ __
{If known)
SCHEDULE C .. PROPERTY CLAIMED AS EXEMPT
Debtor claims the exemptions to which debtor is entitled under: 0 Check if debtor ctaims a homestead exemption that exceeds
(Check one box} $146,450,*
D 11 u.s. c. § s22(b)(2)
ltJ 11 u.s.c. § 522(b)(3)
Current
Value of J)roperty
Specify Law Providing Each Value of Claimed
· · ··Description of Property Without Deducting
Exemption Exemption
Exemption
Homestead Const. art. 16 §§50, 51, Texas Prop. $25,502.00 $589,702.00
Single family dwelling located at Code §§ 41.001-.002
607 W. 32nd Street
AUstin, Texas 78705
lot 8 *& E11.5FT Lot 1 Blk 11 Olt 75-76 Div D
Gypsy Grove
Value per Travis Centrat Appraisal District
Property· is to be sold
Sofa Tex. Prop. Code §§ 42.001 (a)., 42.002 $300.00 $300,00
(a)(1)
Sectinal sofa Tex. Prop. Code§§ 42.001(a), 42.002 $400.00 $400.00
(a){1)
Love seat Tex. Prop. Code§§ 42.001 (a), 42.002 $150.00 $150.00
(a)(1)
1 Side chairs Tex. Prop. Code§§ 42.001 (a), 42.002 $200.00 $200.00
(a}(1)
Color TV Tex. Prop. Code§§ 42.001 (a), 42.002 $35.00 $35.00
(a)(1)
4lamps Tex. Prop. Code§§ 42.001 (a), 42.002 $100.00 $100.00
(a)(1)
* Al'nOUJ'I:t subject to adjustment on ·411113 and e.vel)' three years thereafter with respect to cas<'Js . $26,687.00 $590,887.00
commenced on or after the date of adjustment.
.·-
B6C (Official Form 6C) (4110)- Cont.
In re Stella M•.Powell Case No. . .: . 12;:. ;_-.. ;. ;.12.. .:. :84:. . ;,:.; . 2_ _ _ __
(If known)
SCHEDULE C -PROPERTY CLAIMED AS EXEMPT
Continuation Sheet No. 1
Current
Value of Property
Specify Law Providing Each Value of Claimed Without Doducting
Description of Property Exemption Exemption Exemption
Computer Tex. Prop. Code§§ 42.001 (a}, 42.002 $100.00 $100.00
(a)(1)
Stove Tex. Prop. Code §§ 42.001 (a), 42.002 $500.00 $500.00
{a)(1)
Refrigerator Tex. Prop. Code§§ 42.001(a), 42.002 $500.00 $500.00
(a)(1)
Dishwasher Tex. Prop. Code§§ 42.001(a)j 42.002 $100.00 $100.00
{a)(1)
Mtcrowave oven Tex. Prop. Code§§ 42.001(a), 42.002 $30.00 $30.00
(a){1)
SmaR appliances Tex. Prop. Code§§ 42.001(a), 42.002 $50.00 $50.00
(a)(1)
Pots & pans Tex. Prop. Code §§ 42.001 (a), 42.002 $100.00 $100.00
(a)(1)
Dishes & glassware Tex. Prop. Code§§ 42.001 (a)j 42.002 $70.00 $70.00
(a)(1)
Flatware Tex. Prop. Code§§ 42.001 (a), 42.002 $40.00 $40.00
(a)(1)
Sterling ware Tex. Prop. Code §§ 42.001 (a), 42.002 $500.00 $500.00
(a)(1)
Crystal Tex. Prop. Code §§ 42.001 (a), 42.002 $500.00 $500.00
(a)(1)
Table & chairs Tex. Prop. Code§§ 42.001 (a), 42.002 $1,000.00 $1,000.00
(a}(1)
China cabinet Tex. Prop. Code §§ 42.001 {a), 42.002 $500.00 $500.00
(a)(1)
$30,677.00 $594,877.00
B6C {Official Form 6C) (4/10) --Cont.
In re Stella M. Powell Case No. .,.:..;12::;..-....::...:12=8::....:.4~2_ _ _ __
(If known)
SCHEDULE C .. PROPERTY CLAIMED AS EXEMPT
Continuation Sheet No. 2
Current ·
Value of Property
Specify Law Providing Each Value of Claimed Without Deducting
Description of Property Exemption Exemption Exemption
Buffet Tex. Prop. Code§§ 42.001(a), 42.002 $500.00 $500.00
(a}(1)
Bed Tex. Prop. Code §§ 42.001 {a), 42.002 $70.00 $70.00
(a}(1)
Dresser Tex. Prop. Code §§ 42.001 (a), 42.002 $500.00 $500.00
(a)(1)
Chest Tex. Prop. Code§§ 42.001(a), 42.002 $350.00 $350.00
(a)(1)
2 Night stands Tex. Prop. Code§§ 42.001{a), 42.002 $250.00 $250.00
(a)(1)
21amps Tex. Prop. Code §§ 42.001 (a), 42.002 $30.00 $30.00
(a)(1)
2 small tables Tex. Prop. Code §§ 42.001 (a), 42.002 $30.00 $30.00
(a){1)
Dresser Tex. Prop. Code §§ 42.001 (a), 42.002 $400.00 $400.00
(a){1)
Lamp Tex. Prop. Code§§ 42.001 (a), 42.002 $100.00 $100.00
(a)(1)
Washer & dryer Tex. Prop. Code§§ 42.001 (a), 42.002 $300.00 $300.00
(a)(1)
Garden tools Tex. Prop. Code§§ 42.001(a), 42.002 $20.00 $20.00
(a)(1)
Electric "tools Tex. Prop. Code§§ 42.001(a), 42.002 $20.00 $20.00
(a)(1)
Lawn mower Tex. Prop. Code§§ 42.001(a), 42.002 $50.00 $50.00
(a)(1)
$33,297.00 $597.497.00
-·
B6C {Official Form GC) (4/10)- Cont.
In re Stella M. Powell Case No. ..;;.;12;;;;.~..::..12=..:8:.....:4:..=2~----
(lf known)
SCHEDULE C .. PROPERTY CLAIMED AS EXEMPT
Continuation Sheet No. 3
Current
Value of Property
Specify Law Providing Each Value of Claimed Without Deducting
Description of Property Exemptton Exemption Exemption
books Tex. Prop. Code§§ 42.001(a), 42.002 $400.00 $400.00
(a)(1)
Decorative items, pictures, etc. Tex. Prop. Code§§ 42.001 (a), 42.002 '$500.00 $500.00
(a)(1)
Clothing. shoes & accessories Tex. Prop. Code§§ 42.001{a}, 42.002 $700.00 $700.00
(a}(5)
2 watches Tex. Prop. Code§§ 42.001(a), 42.002 $200.00 $200.00
(a)(6)
Chains Tex. Prop. Code §§ 42.001 (a), 42.002 $11000.00 $1,000.00
(a)(6)
Rings Tex. Prop. Code §§ 42.001 (a), 42.002 $2,000.00 $2,000.00
(a)(6)
New York Life Tex. Ins. Code§ 1108.051 $0.00 $0.00
polciy
acquired July, 2010 value $100.000
Life insurance provided via Fros Design Tex. Ins. Code§ 1108.051 $0.00 $0.00
Unum Core Lit J AD&D Plan
acquired 6/21/12 Value: 150,000
John Hancock Venture in Morgan Stanley acct Tex. Ins. Code§ 1108.051 $151,249.00 $151,249.00
policy# xxxx5825
Morgan Stantey Tex. Prop. Code § 42.0021 $141060.99 $14,060.99
IRA rollover
401K Tex. Prop. Code § 42.0021 $69,000.00 $69,000.00
Confluence Development Group
John Hancock
20Q5 Volkswagen Passat Tex. Prop. Code§§ 42.001(a), 42.002 $61000.00 $6,000.00
75,000 miles (a)(9)
$278,406.99 $842 •.606,~9
0'1. .l015 :
Dlt'V
ON .
·-
86C (Official Form 6C) (4/10) ··Cont.
I.O re Stell~ M. PoweU Case No. 12-12842
-----------------------
(lfknown}
SCHEDULE C -PROPERTY CLAIMED AS EXEMPT
Continuation Sheet No. 4
Current
Value of Property
SpecifY Law Providing Each Value of Claimed Without Deducting
Description of Property Exemption Exemption Exemption
Desk Tex. Prop. Code §§ 42.001 (a}, 42.002 $100.00 $100.00
(a)(4)
Bookcase cabinet Tex. Prop. Code §§ 42.001 (a), 42.002 $500.00 $500.00
(a)(4)
Computer desk Tex. Prop. Code §§ 42.001 (a), 42.002 $50.00 $50.00
(a)(4)
·Fhe cabinet Tex. Prop. Code §§ 42.001 (a}, 42.002 $100.00 $100.00
(a)(4)
computer & monitor Tex. Prop. Code §§ 42.001 (a), 42.002 $150.00 $150.00
(a)(4)
Power supplies Tex. Prop. Code§§ 42.001 (a), 42.002 $20.00 $20.00
(a)(4}
3 dogs & 1 cat Tex. Prop. Code§§ 42.001 (a), 42.002 $4.00 $4.00
(a)(11)
$279,330.99 $843,530.99
[, Gf:iF.: s~f:p...·:'H!'ICif, ._,()i'r'''¥ ·~··~·'{, ·-avm \Ail!ll'J,
B6D (Official Form 60) (12/07)
tn re Stella M. Powell Case No. 12-12842
----------------------
(if known)
SCHEDULE 0 .. CREDITORS HOLDING SECURED CLAIMS
0 Check this box if debtor has no creditors holding secured claims 1o report on this Schedule 0.
CREDITOR'S NAME AND g DATE CLAIM WAS AMOUNT OF UNSECURED
MAILING ADDRESS 0: Q~ INCURRED, NATURE ~0 CLAIM PdRTION,IF
INCLUOIN.G ZIP CODE AND o uiz OFUEN,ANO w~ 0
WITHOUT ANY
AN ACCOUNT NUMBER
(See Instructions Above.)
to
w s~
0 oo
IL :l
DESCRIPTION AND
VALUE OF
CDo
z-
i=5 ~
(/')
DEDUCTING
VALUE OF
0 zo
(.)~~ PROPERTY SUBJECT ~::J a COLLATERAL
CI)O
oZ ::_)
::) TO LIEN
X
DATE INCURRED:
ACCT #: xxxxxx4976 NATURE OF liEN:
Deed of Trust
HSBC Mortgage Services COLLATERAL:
Homestead $399,200.00
PO Box60139 - REMARKS:
City of Industry, CA 91716 payment includes $1000 per month for
property tax (Which Is not escrowed}
for Means Test purposes
VALUE: $589,702.00
Represent~ng: Hughes, Watters & Askanase, L.L.P. Notice Only Notice Only
HSBC Mortgage Services Three Allen Center
333 Clay. 29th Floor
Houston, TX 77002
DATE.INCURREO: various
ACCT #: xxx>Cx.x4975 NATURE OF LIEN:
Arrearage claim
HSBC Mortgage Services COLLATERAL:
Homestead $50.000.00
POBox60139
City of Industry, CA 91716
- REMARKS:
VALUE: $589,702.00
DATE INCURRED:
ACCT #: xxxxxx4983 NA'l'tJRE OF UEN;
Sec;ond Lien Deed of Trust
HSBC Mortgage Services COLLATERAL:
homestead $95,000.00
PO Box60139 - REMARKS:
City of Industry. CA 91716
VALUE: $589,702.00
Subtotal (Total of this Page}> $544,200.00 $0.00
Total (Use only on last page):>
_ _ _:.__ _continuation she~ attached (Report also on (If applicable,
Summary of report also on
Schedules.) Statistical
Summary of
Certain Liabilities
and Related
Data.)
·-
860 (Official Form 60) (12/07) - Cont.
In re Stella M. Powell Case No. _1..:.;;;2-_1_26..:.;;;4_2-----:-~---:----
(if known)
SCHEDULE D -CREDITORS HOLDING SECURED CLAIMS
CREDtTOR'S NAME AND !i DATE CLAIM WAS AMOUNT OF UNSECURED
MAILING ADDRESS INCVRRED, NATURE a CLAIM PORTION, IF
~ Q~ ~ wo
t(UJ ANY
INCLUDING ZIP CODE AND ~ H!§ OF l,fEN, AND
~ Q~
z =>a..
WITHOUT
AN ACCOUNT NUMBER ffi ~~ DESCRIPTION AND DEDUCTING
(See lristructtons Above.) o rio
0 Z $'20,000.00
to Schedule of Creditors Holding Secured Claims Total (Use only on last page)> $564,200.00 $0.00
(Report also on {If apphcable,
Summary of report also on
Schedules.) Statistical
summary of
Certain Liabilities
and Related
Data.)
B6E (Official Form 6E} (04/10)
In re Stella M. Powell Case No. 12-12842
(If Known}
SCHEDULE E -CREDITORS HOLDING UNSECURED PRIORITY CLAIMS
0 Check this box if debtor has no creditors holding unsecured priority claims to report on this Schedule E.
TYPES OF PRIORITY CLAIMS (Check the appropriate box(es) below if claims in that category are listed on the attached sheets.)
D Domestic Support Obligations
Claims for domestic support that are owed to or recoverable by a spouse. former spouse, or child of the debtor, or the parent, legal guardian,
or responsible relative of such a child, or a governmental unit to whom such a domestic support claim has been assigned to the extent
provided in 11 U.S.c. § 507{a)(1).
D Extensions of credit in an involuntary case
Claims arising in the ordinary course of the debtor's business or financial affairs after the commencement of the case but before the earlier of
the appointment of a trustee· ot the order for relief. 11 U.S.C. § 507(a)(3).
0 Wages, salaries, and commissions
Wag~, salaries, and commissions, incll,Jding vac~tion, severance, and sick leave pay oWing to employees and commissions owing to
qualifying independent sales representatives up to $11,72~"' per person earned within 180 days immediately preceding the fHing of the original
petition, or toe cessation of business, whichever occurred first, to the extent provided in 11 U.S.C. § 507(a)(4).
D Contributions to employee benefit plans
Money owed to employee benefit ptans for services rendered within 180 days immediately preceding the filing of the original petition, or the
cessation of business, whichever occurred first, to the extent provided in 11 U.S.C. § 507(a){5).
0 Certain farmers and fishermen
Claims of certain farmers and fishermen, up to $5, 775* per farmer or fisherman, against the debtor, as provided in 11 U.S.C. § 507{a)(6)-
D Deposits by individuals
Claims of individuals up to $2,600'* for deposits for the purchase, lease or rental of property or services for personal, family, or household use,
that were not delivered or provided. 11 u.s.c. § 507(a)(7).
~ Taxes and Certain Other Debts Owed to Governmental Units
Taxes, customs duties, and penalties owing to federal, state, and local governmental units as set forth in 11 U.S.C. § 507{a)(8).
0 Commitments to Maintain the Capital of an Insured Depository Institution
Claims based on commitments to the FDIC, RTC, Director of the Office of Thrift Supervision, Comptroller of the Currency, or Board of Governors
o.f the Federal Reserve System, or their predecessors or successor$, to maintain the capital of an insured depository institution. 11 U.S.C.
§ 507(a)(9).
0 ClaJms for Death or Personal Injury While Debtor Was Intoxicated
Claims for death or personal injury resulting from the operation of a motor vehicle or vessel While the debtor was intol
attached to Schedule of Creditors Holding Priority Claims Total >
(U$e onJy on last page of the completed Schedule E.
Report also on the Summary of Schedules.)
Totals>
(Use only on last page of the completed Schedule E.
If appUcable, report also on the Statistical Summary
of Certain Uabilitles and Related Data.}
B6E (Official Form 6E) (04110)- Cont.
In re Stella M. Powell Case No. 12-12842
(If Known)
SCHEDULE E .. CREDITORS HOLDING UNSECURED PRIORITY CLAIMS
ITYPE OF PRtoRrrv IAdministrative allowances I
CREDITOR'S NAME, DATE CLA~M WAS INCURRED AMOUNT AMOUNT AMOUNT
MAILING ADDRESS AND CONSIOER:AT!ON FOR OF ENTITLED TO NOT
INCLUDING ZIP CODE, ClAIM CLAIM PRIORITY ENTITLED TO
AND ACCOUNT NUMBER PRIORITY, u::
(See Instructions above.) ANY
DATE INCURRED: 2128/2012
CONSIDERATION:
Law Offices of Douglas J. Powell, P.C. ,... ..,'"'"'"v Fees $2,281.00 $2,281.00 $0.00
820 w. 1oth Street
Austin, TX 78701
Sheet no. 2 of 2 continuation sheets
attached to Schedule of Creditors Holding Priority Claims Total>
(Use onty on last page of the completed Schedule E.
Report also on the Summary of Schedules.)
Totals>
(Us& only on la$t page of the completed Schedule E.
If apptleable, report also on the Statistical Summary
of Certain liabilities and Related Data.)
B6F (Official Form 6F) (12/07)
In re St&lla M. Powell Case No. _1..;...2_·1~28~4_2_--:--------
(ifknown)
SCHEDULE F -CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS
0 Check this box if debtor has no creditors holding 1,msecured claims to report on thiS Schedule F.
CREDITOR'S NAME, z~ DATE CLAIM WAS AMOUNT OF
MAILING ADDRESS Qj:
0:: INCURRED AND !Z@ D
CLAIM
w~
INCLUDiNG ZIP COPE~ ~·It~ CONSIDERATION FOR
<.9o
~a.
AND ACCOUNT NUMBER Ol ~:E CLAIM. z-
(See instructiOns above.} 0
~
~8
-~
IF CLAlM IS SUBJECT TO ~~
0-.1
~
0
u '$8,999.00
Total> $8,999.00
(Use only on last page of the compteted Schedule F.)
No continuation sheets attached (Report also on Summary of Schedules and, If applicable, on the
Statistical Summary of Certain Liablllties and Related Data.)
.~._
B6G (Official Form 60) (12/07)
In re Stella M. Powell Case No. _12;;...·-;;;1;-;-28_4_2___,.-----
(ifknown)
SCHEDULE G - EXECUTORY CONTRACTS AND UNEXPIRED LEASES
Describe all executory contracts of any nature and all unexpired leases of real or personal property. Include any timeshare interests.
State nature of debto~s interest in contract, i.e., ..Purchaser.'' "Agent,'' etc. State whether de~tor is the lessor or lessee of a lease.
Provide the names and complete mailing addresses of all other parties to each tease or contract described. If a minor child is a party to
one of the leases of contracts, state the child's initials and the name and address of the child's parent or guardian, such as "A.B., a
minor child, by John Doe, guardian." Do not disclose the child's name. See, 11 U.S.C. §112 and Fed. R. Bankr. P.1007(m).
0 Check this box if debtor has no executory contracts or unexpired leases.
DESCRIPTION OF CONTRACT OR LEASE AND NATURE OF DEBTOR'S
INTI.=, REST. STATE WHETHER LEASE tS FOR NONRESIDENTIAL REAL
NAME AND Mi',lUNG ADDRESS, INCLUDING ZIP CODE, PROPERTY. STATE CONTRACT NUMBER OF ANY GOVERNMENT
OF OTHER PARTIES TO LEASE OR CONTRACT. CONTRACT.
Carroll &. Elizabeth Huntress Debtor is Lessor
3601 Turtle Creed Blvd. Residential lease
Dallas, TX 75219 Contract to be ASSUMED
B6H (Official Form 6H) (12/07)
In re Stella M. Powell Case No. 12·12842
--------------------
(ifknown)
SCHEDULE H -CO DEBTORS
Provide the information requested concerning any person or entity, other than a spouse in a joint case, that is also liable on any debts Hsted by the debtor
in the schedules of creditors. Include all guarantors and co-signers. If the debtor resides or resided in a community property state, common\oVE!alth, or
territofY (including Alaska, Arizona, California, Idaho. Louisiana, Nevada, New Mexico, Puerto Rico, Texas, Washington, or Wisconsin) within the eight-
year period immediately preceding the commencement of the case, identify the name of the debto(s spouse and of any former spouse who resides or
resided wUh the debtor in the communily property state, commonwealth, or territory. Include all names u&ed by the nondebtor spouse during the eight
years immedi~tely preceding the commencement of this case, If a minor child is a codebtor or a creditor, state the child's initlals and the name and
address of the child's parent or guardian, such as "A.B., a .minor child, by John Doe, guardian." Do nof disclose the child's name. See, 11 U.S. C. §112
and Fed. R. Bankr. P. 1007(m}.
ltJ Check this box if debtor has no codebtors.
NAME AND ADDRESS OF CODEBTOR NAME AND ADDRESS OF CREDITOR
2015
V\J~~
~ LU\f!ON
,-
961 (Official Form 61) (12107)
In re Stella M. Powell Case No. 12-12842
(if known)
SCHEDULE I .. CURRENT INCOME OF INDIVIDUAL DEBTOR(S)
The column labeled "Spouse" must be completed in all cases filed by joint debtors and by eveiY matried debtor, whether or not a joint petition is filed,
unfess the spouses are separated and a joint petition is not filed. Do not state the name of any minor child. The average monthly income calculated on
this form may differ from the current monthly income calculated on Form 22A, 228, or 22C.
~~(Si.,;.
:_.,_.· Relationship{s}:
Dependents of Debtor and Spouse
Age{s): Relatlonshlp(s): Age(s):
Employment: Debtor Spouse
Occupation Business Development
Name of Employer Frog Design
How Long Employed 8 months
Address of Employer 660 Third Street 4th Fl,
San Francisco, CA 941 07
fNCOME: (Estimate of average or projected monthly income at time case filed) DEBTOR SPOUSE
1. M<;>nthly gross wages, salary, and commissions (Prorate if not paid monthly) $12,500.00
2. Estimate monthly overtime $0.00
3. SUBTOTAL $12,5QO.OO
4. LESS PAYROLL DEDUCTIONS
a. Payroll taxes (includes social security tax if b. is zero) $2,645.32
b. Social Security Tax $525.96
c. Medicare $181.58
d. Insurance $0.00
e. Union dues $0.00
f. Retirement __.;..40=-1.,..._K.;__._ _ _ _ _ _ _ _ _ _ _ _ _ __ $375.00
g. Other (Specify) -J;;.pa~r.;.;;ki.:..:.lng~--------------- $160.74
h. Other (Specify) _::::U::..:fe:...;;l:..:.:ns:.;:u:;..::;ra:;.;n~ce=---------------- $74.56
i. Other (Specify) ~lo;;;...n-'rjg_term...;..;....;....,;;d,:.;.is_.- - - - - - - - - - - - - $29.38
j. Other (Specify) $0.00
k. Other (Specify} -------------~--- $0.00
5. SUBTOTAl OF PAYROLL DEDUCTIONS $3,992.54
6.
7..
TOTAL NET MONTHLY TAKE HOME PAY
Regular income from operation of business or profession or farm {Attach detailed stmt}
I $8J507.46
$1,000.00
8. lncome from real property $2,200.00
9. Interest and dividends $0.00
10. Alimony, maintenance or support payments payable to the debtor for the debtor's use or $0.00
that of dependents listed above
11. SociaJ security or government assistance {Specify):
$0.00
12. Pension or retirement income $0.00
13. Other monthly income (Specify):
$0.00
a~----------------------------------------------------- $0.00
b.~----------------------------------------------------- $0.00
c,~----~-------------------------------------------------
14. SUBTOTAL OF LINES 7 THROUGH 13 $3,200.00
15. AVERAGE MONTHLY INCOME (Add amounts shown on lines 6 and 14) $11,707.46 ..
16. COMBINED AVERAGE MONTHLY INCOME: {Combine column totals from line 15) $11,707.46
(Report also on Summary of Schedules and, if applicable,
on Statistical Summary of Certain Liabilities and Related Data)
17. Describe any Increase or decrease ln income reasonably anticipated 1o occur within the year following the filing of this document:
None.
0 2.,., 2015
--
J\1\~J'
~·-L~MON
-
B6J {Official Form 6J) (12/07)
IN RE: Stella M. Powell Case No. 12-12842
(if known)
SCHEDULE J .. CURRENT EXPENDITURES OF INDIVIDUAL DEBTOR(S)
Complete this schedule by estimating the average or projected monthly expenses of the debtor and the debtor's famlly at time case filed. Prorate any
payments made bi-weekly, quarterly, semi-annually, or annually to shoW monthly rate. The average monthly expenses calculated. on this form may
differ from the deductions from income allowed on Form 22A or22C.
0 Check this box if a joint petition is filed and debtors spouse maintalns a separate household. Comptete a separate schedule of expenditures
labeled "Spouse."
1. Rent or home mortgage payment {include lot rented for mobile home}
a. Are real estate taxes included? 0 Yes li2J No
b. Is property insurance included? 0 Yes ~No
2. Utilities: a. Electricity and heating fuel $300.00
b. Water and sewer $50.00
c. Telephone $90.00
d. Other; Cable/Internet $85.00
3. Home maintenance (repairs and upkeep) $200.00
4.Food $500.00
5. Clothing $100.00
6. laundry and dry cleaning $25.00
7. Medical and dental expenses $20.00
8. Transportaflon (not Including car payments) $400.00
9. Recreation, clubs and entertainment, newspapers, magazines, etc. $125.00
10. Charitable contributions $30.00
11. Insurance (not deducted from wages or included in home mortgage payments)
a. Homeowner's or renter's $157.00
b. Life $115.00
c. Health
d. Auto $95.00
e. Other:
12. Taxes (not deducted from wages or included in home mortgage payments) $1,000.00
Specify: Property Taxes
13. Installment payments: (tn chapter 11, 12, and 13 cases~ do not list payments to be included in the plan)
a. Auto:
b. Other: Anytime Fitness $70.00
c. Other: HOA for Dallas Condo $1,415.00
d. Other: Prop. tax for condo $600.00
14. Alimony, maintenance, and support paid to others:
15. Payments for support of add'l dependents not living at your home:
16. Regular expenses from operation of business, profession, or farm (attach detailed statement) $645.00
17.a. Other: Personal Care Products & services $75.00
17.b. Other: Work related travel expenses $500.00
18. AVERAGI; MONTHLY EXPENSES (Total lines 1~17. Report ahso on Summary of Schedules and,
. if ~pp.ltc.able~ QO th~ ·$tatistical Summary, of certain Liabilities and Related. Data.)
19. Describe any increase or decrease in expenditures reasonably anticipated to occur within the year following the filing ofthis
document: None.
20. STATEMENT OF MONTHLY NET INCOME
a. Average monthly income from Line 15 of Schedule I $11,707.46
b. Average monthly expenses from Line 18 above $6,597.00
c. Monthly net income (a. minus b.) $5,110.46
. -""·-···------ ... -....-·---···---------··-·-"--·------------
-·
UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
iN RE: Stella M. Powell CASE NO 12-12842
CHAPTER 13
EXHIBIT TO SCHEDULE J
Itemized Business Expenses
COG
Expense Category Amount
Rent Rent $535.00
Public Storage Storage $70.00
Vonage Telephone $30.00
One to One Website $10.00
Total> $645.00
·- -
86 Summary (Official Form 6 ·Summary) {12/0.7)
UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re Stella M. Powell Case No. 12-12842
Chapter 13
SUMMARY OF SCHEDULES
Indicate as. to each schedule whether that schedule is attached and state the number of pages in each. Report the totals from
Schedules A. B, D, E, F, I, and J in the boxes provided. Add the amounts from Schedules A and B to determine the total amount ofthe
debtor's assets. Add the amounts of alt claims from Schedules D, E. and F to determine the total amount of the debtor's liabilities.
h)dividual deb1ors also must complete the "Statistical Summary of Certain Liabilities and Related Data" if they file a case under
chapter7, 11, or 13.
NAME OF SCHEDULE
ATTACHED NO. OF ASSETS LIABILITIES OTHER
(YES/NO) SHEETS
A - Real Property Yes 1 $849,702.00
B - Personal Property Yes 7 $335,344.84
C - Property Claimed Yes 5
as Exempt
D - Creditors Holding Yes 2
Secured Claims
E ~Creditors Holding Unsecured
Priority Claims Yes 3
of Claims on Schedule
F- Holding Unsecured Yes 1
Clafms
G - Executory Contracts and Yes 1
Unexpired Leases
H • Codebtors Yes
I - Current Income of Yes 1
Individual Debtor(s}
J - Current Expenditures of Yes 2 $6,597.00
Individual Debtor(s)
TOTAL 24 $575,480.00
-
f-orm 6 ~ Statlstleal Summary (12/07}
UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re Stella M. Powell Case No. 12-12842
Chapter 13
STATISTICAL SUMMARY OF CERTAIN LIABILITIES AND RELATED DATA (28 U.S.C. § 159)
If you are an individual debtor whose debts are primarily consumer debts, as defined in§ 101 (8) of the Bankruptcy Code (11 U.S.C.
§ 101 (8)), filing a case under chapter 7, 11, or 13, you must report all information requested below.
0 Check this box if you are an individual debtor whose debts are NOT primarily consumer debts. You are not required to report any
information here.
This information is for statistical purposes only under 28 U.S.C. § 159.
Summarize the following types of UabiUties, as reported in the Schedules, and total them.
Type of Liability Amount
Domestic Support Obligations (from Schedule E) $0.00
Taxes and Certain Other Debts Owed to Governmental Units $0.00
{from Schedule E)
Claims for Death or Personal Injury While Debtor Was $0.00
Intoxicated (from Schedule E) {whether disputed or undisputed)
Student Loan Obligations (from Schedule F) $0.00
Domestic Support, Separation Agreement, and Divorce Decree $0.00
Obligations Not Reported on Schedule E
Obtigatlcms to Pension or Profit-sharing, and Other Similar $0.00
Obligations (from Schedule F)
TOTAL $0.00
State the following:
Average Income (from Schedule!, Line 16) $11,707.46
Average Expenses (fro~ Schedule J, Line 18) $6,597.00
Current Monthly Income {from Form 22A Line 12; OR, Form 228
Line 11; OR, Form 22C Line 20) $17,291.67
State the following:
1. Total from Schedule 0, "UNSECURED PORT~ON, IF ANY"
column
2. Total from Schedule E, "AMOUNT ENTITLED TO PRIORITY"
column.
3. Total from Schedule E, 11AMOUNT NOT ENTITLED TO
PRIORITY, IF ANY'' column $0.00
4. Total from Schedule F $8,999.00
5. Total of non-priority unsecured debt (sum of 1, 3, and 4)
S7 {Official Form 7) (04/1 0) UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re: Stella M. Powell Case No. _12_-_12...;..8;...4...;..2_ _ _ _ __
(if known)
STATEMENT OF FINANCIAL AFFAIRS
1. Income from employment or operation of business
None State the gross amount of income the debtor has received from employment, trade, or profession, or from operation of the debtor's business,
D including parHime activities either as an employee or in independent trade or business, from the beginning of this calendar year to the date this
case was commenced. State also the gross amounts received during the two years immediately preceding this calendar year. (A debtor that
maintains, or has maintajned, financial records on the basis of a fisc~il rather than a calendar year may report fiscal year income. Identify the
beginning and ending dates of the debtor's fiscal year.) If a joint petition is filed, state income for each spouse separately. (Married debtors filing
under chapter 12 or chapter 13 must state income of both spouses whether or not a joint petition Is filed, unless the spouses are separated and a
joint petition is not fifed.)
AMOUNT SOURCE
$128 1750.00 20121ncome from employment
$50,000.00 2011 • estimated income
($15,407.00) 2010 ... $0 Income and $15A07 loss from consulting business reported on tax return
($3,000.00) 201 o • loss from capital gains
2. Income other than from employment or operation of business
~e State the amount of income received by the debtor other than from employment, trade, profession, or operation of the debtor's business during the
two years immediately preceding the commencement of this case. Give particulars. If a joint petition is filed, state income for each spouse
separately. (Married debtors filing under chapter 12 or chapter 13 must state income for each spouse whether or not a joint petition js filed,
unless the spouses are separated and a joint petition is not filed.)
AMOUNT SOURCE
$26AOO.OO 2012 rental income
w
$26,400.00 2011- rental incom
$18,074.00 2010- gross rental income (net per tax return (425,000}
3. Payments to creditors
Complete a. or b.1 as appropriate, and c.
one a. Jndividual or joint debtor(s) With primarily consumer debts: List all payments on loans, instatlment purchases of goods or SeiViCeS, and other
debts to any creditor made within 90 days immediately preceding the commencement of this case unless the aggregate value of all property that
constitutes or is affected by such 1ransfer is less than $600. Indicate with an asterisk(*) any payments that were made to a creditor on account
of a domestic support obligation or as part of an alternative repayment schedule under a plan by an approved nonprofit budgeting and credit
counseling agency. (Married debtors filing under chapter 12 or chapter 13 musl include payments by either or both spouses whether or not a joint
petition Is filed, unle.ss the spouses are separated and a joint petition is not filed.)
DATES OF
NAME AND ADDRESS OF CREDITOR PAYMENTS AMOUNT PAID AMOUNT STILL OWING
Dallas County Tax Assessor 12/28/12 $21,607.72 $0.00
~e b. Debtor whose debts are not primarlly consumer debts: List each payment or other transfer to any creditor made within 90 days immediately
ll:.l preceding the commencement of the case unless the aggregate value of all property that constitutes or is affected by such transfer is less than
$5,850lt. If the debtor is an individual, indicate with an asterisk(*) any payments that were made to a creditor on account of a domestic support
obligation or as part of an alternative repayment schedule under a plan by an approved nonprofit budgeting and credit counseling agency.
(Married debtors filing under chapter 12 or chapter 13 must Include payments and other transfers by either or both spouses whether or not a joint
petition is filed, unless the spouses are separated and a joint petition is not filed.)
"'Amount subject to adjustment on 4101/13, and every three years thereafter with respect to cases commenced on or after the date of adjustment.
-·· ·-·
87 {Official Fonn 7) {04/1 O} - Cont. UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re: Stella M. Powell Case No. _12;;;;.-...;;..1;.;...28_4=2;...._._ _ _ __
(if known)
STATEMENT OF FINANCIAL AFFAIRS
Continuation Sheet No. 1
None
ItJ c. All debtors: List all payments made 'INithin one year immediately preceding the commencement of this case to or for the benefit of creditors
who are or were insiders. (Married debtors filing under chapter 12 or chapter 13 must Include payments by either or both spouses whether or
not a joint petition Is filed, unless the spouses are separated and a joint petition is not filed.)
4. Suits and administrative proceedings, executions, garnishments and attachments
None a. List all suits and administrative proceedings to which the debtor Is or was a party within one year immediately preceding the filing of this
fi21 bankruptcy case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning either or both spouses Whether or
not a joln1 petition is fifed, unless the spouses are separated and a joint petition Is not filed.)
; e b. Describe all property that has been attached, garnished or seized under any legal or equitable process within one year immediately preceding
the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning property of either or
both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
5. Repossessions, foreclosures and returns
None lis1 all property that has been repossessed by a creditor, sold at a foreclosure sale, transferred through a deed in lieu of foreclosure or returned
li!f to the seller, within one year immediately preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must
include information concerning property of either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a
joint petition· is not filed.)
6. Assignments and receiverships
~e a. Describe any assignment of property for the benefit of creditors made within 120 days immedlately preceding the commencement of this case.
DU (Married debtors filing under chapter 12 or chapter 13 must include any assignment by either or both spouses Whether or not a joint petition is.
filed, unless the spouses are separated and a joint petition is not filed.)
None b. List all property Which has been in the hands of a custodian, receiver, or court-appointed official within one year immediately preceding the
Iii commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning property of either or both
spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.}
7. Gifts
None List all gifts or charitable contributions made within one year immediately preceding the commencement of this case except ordinary and usual
.li!l gffts to family members aggregating less than $200 in value per individual famlly member and charitable contributions aggregating less than $100
perreclpient. (Marlied debtors filing under chapter 12 or chapter 13 must Include gifts or contributions by either or both spouses whether or not a
joint petition ts filed, unless the spouses are separated and a joint petition is not filed.)
8.losses
~e list all losses from fire, theft, other casualty or gambling within one. year immediately preceding the commencement of this case or since the
w commencement of this case_ (Matried debtors filing under chapter 12 or chapter 13 must include losses by either or both spouses whether or not
a joint petition is filed, unless the spouses are separated and a joint petition is not flied.)
67 (Official Form 7) (04/10)- Cont. UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re: Stella M. Powell Case No. ..:.;12;;;;..-....;.1;;;;.28;;....4;;..;;;2;....__~--
(ifknown)
STATEMENT OF FINANCIAL AFFAIRS
Continuation Sheet No. 2
9. Payments related to debt counseling or bankruptcy
None List all payments made or property transferred by or on behalf of the debtor to any persons, including attorneys, for consultation concerning debt
D consolidation, relief under the bankruptcy law or preparation of a petition in bankruptcy within one year immediately preceding the commencement
of this case.
DATE OF PAYMENT,
NAME OF PAYER IF AMOUNT OF MONEY OR DESCRIPTION
NAME AND ADDRESS OF PAYEE OTHER THAN DEBTOR AND VALUE OF PROPERTY
Douglas J. Powell, P.C. 12/28/2012 $1500 (includes filing fee)
Attorney at Law
820 West 10th Street
Austin, TX 78701
10. Other transfers
;e a. List all other property, other than property transfe-rred in the ordinary course of the business or financial affairs of the debtor, transferred
either absolutely or as security within two years immediately preceding the commencement of this case. (Married debtors filing under chapter 12
or chapter 13 must include transfers by either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint
petition is not filed.)
;e b. list all property transferred by the debtor within ten years immediately preceding the commencement of this case to a self-settled trust or
similar device of which the debtor is a beneficiary. ·
11. Closed financial accounts
;e List all financial accounts and instruments held in the name of the debtor or for the benefit of the debtor which were closed, sold, or otherwise
transferred within one year immediately preceding the commencement of this case. Include checking, savings, or other financial accounts,
certificates of deposit, or other instruments; shares and share accounts held in bank'S, credit unions, pension funds, cooperatives, associations,
brokerage houses and other financial institutions. (Married debtors filing under chapter 12 or chapter-13 must include information concerning
accounts or instruments held by or for either or both spouses whether or not a joint petition Is filed, unless the spouses are separated and a joint
petition is not filed.)
12. Safe deposit boxes
;e List each safe deposit or other box or depository in which the debtor has or had securities, cash, or other valuables within one year immediately
preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include boxes or depositories of either or
both spouses >Nhether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
NAMES AND ADDRESSES OF
NAME AND ADDRESS OF BANK THOSE WITH ACCESS TO OESCRJPnON OF DATE OF TRANSFER OR
OR OTHER DEPOSITORY BOX OR DEPOSITORY CONTeNTS SURRENDER, IF ANY
Chase Preston Center Debtor only documents,
8111 Preston Rd. photographs,
Dallas, TX 75225 personal records
13. Setoffs
;e List all setoffs made by any creditor. including a bank, against a debt or deposit of the debtor within 90 days preceding the commencement of this
case. (ft/1arried debtors filing under chapter 12 or chapter 13 must include information concerning either or both spouse-s whether or not a joint
petition ls filed, unless the spouses are separated and a joint petition is not filed.)
14. Property held for another person
None .
~ List all property owned by another person that the debtor holds or controls.
87 (Official Form 7) (04/10)- Cont. UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re: Stella M. Powell CaseNo. ~1~2-~1~28~4~2~---------
(ifknown)
STATEMENT OF FINANCIAL AFFAIRS
Continuation Sheet No. 3
15. Prior address of debtor
; e If the debtor has .moved within three years immediately preceding the commencement of this case, list all premises which the debtor occupied
during that period and vacated prior to the commencement of this case. If a joint petition is filed, report also any separate address of either
spouse.
··~fi~· $pouses and Former Spouses
.~;;;;e: If the debtor resides or resided in a community property state, commonwealth, or territory (including Alaska, Arizona, California, Idaho, Louisiana,
·W ' Nevada, New Mexico, Puerto Rico, Texas, Washington, or Wisconsin) within eight years Immediately preceding the commencement of the case,
identify the name of the debtor's spouse and of any former spouse who resides or resided with the debtor In the community property state.
17. Environmental Information
For the purpose of this question, the foUowlng definitions apply:
"Environmental Law'' means any federal, sta,e, or local statute or regulation regulating pollution, contamination, releases of hazardous or toxic
substancesj wastes or material into the air, land, soH, surface water, groundwater, or other medium, including, but not limited to, statutes or
regulations regulating the cleanup of these substances, wastes, or material.
"Site" means any locatlon, facility, or property as defined under any Environmental Law, whether or not presently or formerly owned ot operated
by the debtor, including. but not limited to, disposal sites.
"Hazardous Material" means anything defined as a hazardous waste, hazardous substance, toxic substance, hazardous material, pollutant, or
contaminant or similar term under an Environmental Law.
None a. List the name and address of every site for which the debtor has received notice in writing by a governmental unit that it may be liable or
[tJ potentially liable under or in violation of an Environmental Law. Indicate the governmental unit, the date of the notice, and, if known, the
Environmental Law:
None b. List the name and address of every site for Which the debtor provided notice to a governmental unit of a release of Hazardous Material.
~ Indicate 1he governmental unit to which the notice Wa.s sent and the date of the notice.
None c, List all judicial or administrative proceedings, including settlements or orders, under any Environmental Law with respect to which the debtor is
(i!J or was a party. Indicate the name and address of the governmental unit that is or was a party to the proceeding, and the docket number.
_ .........
...-.
B7 (Official Form 7) (04110)- Cont. UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re: Stella M. Powell Case No. ~12;;;..-.1
....=28;....;4=2_ _ _ _ __
(if known)
STATEMENT OF FINANCIAL AFFAIRS
Continuation Sheet No. 4
18. Nature, location and name of business
None
D a. If the debtor is an individual, list the names, addresses, taxpayer-identification numbers, nature of the businesses, and beginning and ending
dates of all puslnesses in whlch the debtor was ·an officer, director, partner, or managing executive of a corporation, partner in a partnership,
sole proprietor, or was self-employed In a trade, profession, or other activity either full~ or part-time within six years immediately preceding the
commencement of this case, or in which the debtor owned 5 percent or more of the voting or equity securities within six years immediately
pre~ding the commencement of this case.
lf the debtor is a partnership, list the names, addresses, taxpayer·ldentification numbers, nature of the businesses, and beginning and ending
dates of all businesses in Which the debtor was a partner or owned 5 percent or more of the voting or equity securities, within six years
immediate~)~ preceding the commencement of this case.
If the debtor is a corporation, list the names, addresses, taxpayer-identification numbers, nature of the businesses, and beginning and ending
dates of all businesse$ in W'hich the debtor was a partner or owned 5 percent or more of the voting or equity securities within six years
Immediately preceding the commencement of this case.
NAME. ADDRESS. AND LAST FOUR DIGITS OF
SOCIAL-SECURITY OR OTHER INDIVIDUAL BEGINNING AND ENDlNG
TAXPAYER·I.O. NO. (ITIN) I COMPLETE EJN NATURE OF BUSINESS OATES
Confluence Development Group Strategic Business Development 12110109- present
1300 West Lynn, Ste. 106
Austin, TX 78703
454355928
Composite Services Business development non-operational
1300 West Lynn, Ste. 106
Austin, TX 78703
20 052 9296
;e b. Identify any business listed in response to subdivision a., above, that is "single asset real estate" as defined ln 11 U.S.C. § 101.
The following questions are to be completed by every debtor that is a corporation or partnership and by any individual debtor who is or has been,
within six years immediately preceding the commencement of this case, any of the following: an officer, director, managing executive, or owner of
more than 5 percent of the voting or equity securities of a corporation; a partner, other than a limited partner, of a partnership, a sole proprietor, or
self-employed tn a trade, profession, or other activity, either full- or part·time.
(An individual or joint debtor should complete this portion of the statement only if the debtor is or has been in business, as defined above, within
six years immediately preceding the commencement of 1his case. A debtor who has not been in business within those six years should go
directly to the signature page.)
1$. Books, records and financial s-tatements
;~ a. List all bookkeepers and accountants who within two years immediately preceding the fning of this bankruptcy case kept or supervised the
keeping of books of account and records of the debtor.
;e b. List all firms or individuals who within two years Immediately preceding the filing of this bankruptcy case have audited the books of account
and records, or prepared a financial statement of the debtor.
87 {Official Form 7} (04/1 0) - Cont. UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re: Stella M. Powell CaseNo. _12~-~12~8_4_2___________
(if known)
STATEMENT OF FINANCIAL AFFAIRS
ConUnuation Sheet No. 5
;e d. List aH financial institutions, creditors and other parties, including mercantile and trade agencies, to whom a financial statement was issued by
the debtorwithin two years immediately preceding the commencement ofthis case.
20. Inventories
;e a. List the dates of the last two inventories taken of your property, the name of the person who supervised !he taking of each inventory, and the
dollar amount and basis of each inventory.
';e b. List the name and address of the person having possession of the records of each of the Inventories reported in a., above.
21. Current Partners, Officers, Directors and Shareholders
;e a. If the debtor is a partnership, list the nature and percentage of partnership interest of each member of the partnership.
; e b. If the debtor is a corporation, list all officers and directors of the corporation, and each stockholder who directly or indirectly owns, controls, or
holds 5 percent or more of the voting or equity securities of the corporation.
22. Former partners, officers, directors and shareholders
;a a. If the debtor Is a partnership, list each member who withdrew from the partnership within one year immediately preceding the commencement
of this case.
~rle b. If the debtor Is a corporation, list all officers, or directors whose relationship with the corporation terminated within one year immediately
preceding the commencement of this case.
ri:r 23. Withdrawals from a partnership or distributions by a corporation
If the debtor Is a partnership Of corporation, list all Withdrawals or distributions credited or glven to an insider. including compensation in any form,
bonuses, loans, stock redemptions, options exercised and any other perquisite during one year immediate~y preceding the commencement of this
case.
24. Tax Consolidation Group
None
r:7f If the deblor is a corporation, list the name and federal taxpayer-identification number of the parent corporation of any consolidated group for tax
w purpos.es of which the debtor has been a member at any time within six years immediately preceding the commencement of the case.
25. Pension Funds
; e If the debtor is not an individual. list the name and federal taxpayer-identification number of any pen~ion fund to 'Nhich the debtor, as an employer,
has been responsible for contributing at any time within six years immediately preceding the commencement of the case.
87 (Official Form 7) (04/10)- Cont. UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
In re: Stella M. Powell Case No. --'12;;;;,..~_12_8_4_2~----
(ifknown}
STATEMENT OF FINANCIAL AFFAIRS
Continuation Sheet No.6
[If completed by an individual or individual and spouse]
I declare- under penalty of perjury that I have read the answers contained in the foregoing statement of financial affairs and any
attachments thereto and that they are true and correct.
Date 1122/2013 Signature _ _l_s_ls_t_el_la_M_._P_ow_e_n_ _ _ _ _ _ _ _ _ _ _ _ __
of Debtor Stella M. Powell
Date-------------- Signature------------·
of Joint Debtor
(if any)
Penalty for making a false statement: Fine of up to $500,000 or imprisonment for up to 5 years, or both.
18 U.S. C.§§ 152 and 3571
M~ [JMfJN
.. ~.
B 2018 (Form 2018) (12/09) UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN D.IVISION
In re Stella M. Powell Case No. __1_2_-1_2_84_2__
Chapter 13
CERTIFICATION OF NOTICE TO CONSUMER DEBTOR(S)
UNDER§ 342(b) OF THE BANKRUPTCY CODE
Certification of the Debtor
I {We), the debtor(s), affirm that I (we) have received and read the attached notice, as required by§ 342(b) of the Bankruptcy Code.
Stella M. Powell X lsi Stella M. Powell 1/2212013
Signature of Debtor Date
Prinied Name(s) of Debtor(s)
X
Case No. (if known} __;:.:12::;;...w..;.;12;;..:8:;_;4~2------ --------------------------------------
Signature of Joint Debtor (if any) Date
Certificate of Compliance with § 342(b) of the Bankruptcy Code
I, _ _ _ _ _D_o_ul!E.gl-'a_s_J_.P-'o:......w_e_u_ _ _ _--', counsel for Debtor(s), hereby certify that I delivered to the Debtor(s) the Notice
required by§ 342(b) of the Bankruptcy Code.
Is/ Douglas J. Powell
Douglas J, Powell, Attorney for Debtor(s)
Bar No.: 16194900
Law Offices of Douglas J. Powell, P.C.
820W.10th St.
Austin, TX 78701
Phone: (612) 476-2457
Fax: (512) 4 77-4503
E-Mail: dpowell@dougpowelllaw. com
Instructions: Attach a copy of Form B 201A, Notice to Consumer Debtor(s) Under§ 342(b) of the Bankruptcy Code.
Use this form to certify that the debtor has received the notice required by 11 U.S.C. § 342(b) ONLY if the certification has NOT
been made on the Volunta.ry Petition, Official Form 81. Exhibit Bon page 2 of Form 81 contains a certification by the debtor's
attorney that the attorney has giVen the notice to the debtor. The Declarations made by debtors and bankruptcy petition
preparers on page 3 of Form B1 also Include this certification.
[. Dana DeBf"2tJVOir, Cour.t-1 CIBrl<, T;avi£ Co~nty,
texas, do herer)y ~~rirh, ttun t11s 1s a1:!'11~ ana
C.(llTec'i .:;opy ali! '!iarn~: ::lPPfJB!1' el ~tffi:::OI'O 111 m~t office.
\!\fitness rn~ nand ana ::iBa\ cf oftliiil on
Dana DeBeauvoil, County cMAR D-2,~2015
~~
M~ I.. ~MON
B201A{Form201A) (11/11)
UNITED STATES BANKRUPTCY COURT
NOTICE TO CONSUMER DEBTOR(S) UNDER § 342(b)
OF THE BANKRUPTCY CODE
ln accordance with§ 342(b) of the Bankruptcy Code, this notice to individuals with primarily consumer debts: (1) Describes
briefly the services available from credit counseling services; (2} Describes briefly the purposes, benefits and costs of the four
types of bankruptcy proceedings you may commence; and (3) Informs you about bankruptcy crimes and notifies you that the
Attorney General may examine all information you supply in connection with a bankruptcy case.
You are cautioned that bankruptcy law is complicated and not easily described. Thus, you may wish to seek the advice of an
attorney to learn of your rights and responsibilities should you decide to file a petition. Court employees cannot give you legal
advice.
Notices from the bankruptcy court are sent to the mailing address you Qst on your bankruptcy petition. In order to ensure that you
receiVe information about events concerning your case, Bankruptcy Rule 4002 requires that you notify the court of any changes in
your address. If you are filing a JOINT CASE (a single bankruptcy case for tv.ro Individuals married to each other), and each
spouse lists the same mailing address on the bankruptcy petition, you and your spouse will generally receive a single copy of
each notice mailed from the bankruptcy court in a jointly-addressed envelope, unless you file a statement with the court
requesting that each spouse receive a separate copy of all notices.
1. Services Available from Credit Counseling Age_ncies
With limited exceptions,§ 109(h) of the Bankruptcy Code req'-'lres that an Individual debtors who file for bankruptcy relief on
or ·after October 17, 2006, receive a briefing that outlines the available opportunities for credit counseling and provides
ass.lstance In performing a budget analysis. The briefing must be given within 180 days BEFORE the bankruptcy filing. The
briefing may be provided individually or in a group (including briefings conducted by telephone or on the Internet) and must be
provided by a nonprofit budget and credit counseling agency approved by the United States trustee or bankruptcy administrator.
The clerk of the bankruptcy court has a list that you may con sulf of the approved budget and credit counseling agencies. Each
debtor in a joint case must complete the briefing.
In addltion, after filing a bankruptcy case, an individual debtor .generally must complete a financial management
instructional course before he or she can receive a discharge. The cterk also has a list of approved financial management
instructional courses. Each debtor In a joint case must compfete the course.
2. The Four Chapt$rs of the Bankruptcy Code Available to Individual Consumer Debtors
Chapter 7: Liquidation ($245 filing fee, $46 administrative fee, $15 trustee surcharge: Total fee $306)
Chapter 7 is designed for debtors in financial difficulty who do not have the ability to pay their existing debts. Debtors whose
debts are primarily c.onsumer debts are subject to a ~~means tesr~ designed to determine whether the case should be permitted
to proceed under chapter 7. If your income is greater than the median Income for your state of residence and family size, in
some cases, the United States trustee (or bankruptcy administrator), the trustee, or creditors have the right to file a motion
requesting that the court dismiss your case under§ 707(b) of the Code. It Is up to the court to decide whether the case should
be dismissed.
Under chapter 7, you may claim certain of your property as exempt under governing law. A trustee may have the right to take
possession of and sell the remaining property that is not exempt and use the sale proceeds to pay your creditors.
The purpose of filing a chapter 7 case is to obtain a discharge of your existing debts. If, however, you are found to have
committed certain kinds of improper conduct described in the Bankruptcy Code, the court may deny your discharge and, if it
does, the purpose for which you filed the bankruptcy petition will be defeated.
Even if you receive a general discharge, some particular debts are not discharged .under the law. Therefore, you may still be
responsible for most taxes and student loa.ns; debts incurred to pay nondischargeabte taxes; domestic support and property
settlement obligations; most fines, penalties, forfeitures, and criminal restitution obligations; certain debts which are not
properly listed in your bankruptcy papers; and debts for death or personal injury caused by operating a motor vehicle, vessel, or
aircraft while intoxicated from alcohol or drugs. Also, if a creditor can prove that a debt arose from fraud, breach of fiduciary duty,
·or theft, or from a willful and malicious injury, the bankruptcy court may determine that the debt is not discharged.
Form B 201 A, Notice to Consumer Debtor(s) Page2
Chapter 13: Repayment of All or Part of the Debts of an Individual with Regular Income
($235 filing fee, $46 administrative fee: Total fee $281)
Chapter 13 is designed for individuals with regular income who would like to pay all or part of their debts in installments over a
peliod of time. You are only eligible for chapter 13 if your debts do not exceed certain dollar amounts set forth in the Bankruptcy
Code.
Under chapter 13, you must file with the court a plan to repay your creditors all or part of the money that you owe them, using your
future earnings. The period allowed by the court to repay your debts may be three years or five years, depending upon your
income and other factors. The court must approve your plan before it can take effect.
After completing the payments under your plan, your debts are generally discharged except for domestic support obligations;
most student loans; certain taxes; most criminal fines and restitution obligations; certain debts which are not properly listed in
your bankruptcy papers; certain debts for acts that caused death or personal injury; and certain long term secured obligations.
Chapter 11: Reorganization ($1000 filing fee, $46 administrative fee: Total fee $1046)
Chapter 11 is designed for the reorganization of a business bulls also available to consumer debtors. Its provisions are quite
complicated, and any decision by an individual to file a chapter 11 petition should be reviewed with an attorney.
Chapter 12: Family Farmer or Fisherman ($200 filing fee, $46 administrative fee: Total fee $246)
Chapter 12 is designed to permit family farmers and fishermen to repay their debts over a period of time from future earnings
and is similar to chapter 13. The eligibility requirements are restrictive, limiting its use to those whose income arises primarily
from a family-owned farm or commercial fishing operation.
3. Bankruptcy Crimes and Availability of Bankruptcy Papers to Law Enforcement Officials
A person who knowingly and fraudulently conceals assets or makes a false oath or statement under penalty of perjury, either
orally or in writing, in connection with a bankruptcy case is subject to a fine, imprisonment, or both. All information supplied by a
debtor in connection with a bankruptcy case is subject to examination by the Attorney General acting through the Office otthe
United States Trustee, the Office of the United States Attorney. and other components and employees of the Department of
Justice.
WARNING: Section 521 (a)(1) of the Bankruptcy Code requires that you promptly file detailed information regarding your creditors,
assets, liabilities, income, expenses and general financial condition. Yourbankruptcy case may be dismissed if this
information is not filed with the court within the time deadlines set by the Bankruptcy Code, the Bankruptcy Rules, and the local
rutes ofthe court The documents and the deadlines for filing them are listed on Form 8200, which is posted at
http://wNw'.uscourts.gov/bkforms/bankruptcy_forms.html#procedure.
2015 /'
..-.
UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
IN RE: Stella M. Powell CASE NO 12-12842
CHAPTER 13
DISCLOSURE OF COMPENSATION OF ATTORNEY FOR DEBTOR
1. Pursuant to 11 U.S.C. § 329(a) and Fed. Bankr. P. 2016(b), I certify that 1am the attorney for the above-named debtor(s) and
that-compensation paid to me within one year before the filing of the petition in bankruptcy, or agreed to be paid to me, for
services rendered or to be rendered on behalf of the debtor(s) in contemplation of or in connection with the bankruptcy case
is as follows:
For legal services, I have agreed to accept $3,500.00
Prior to the filing of this statement I have received: $1,219.00
Balance Due: $2,281.00
2. The source of the compensation paid to me was:
[i!J Debtor 0 Other (specify)
3. The source of compensation to be paid to me is:
[;!1 Debtor 0 Other (specify)
4. li!J J have not agreed to share the above-disclosed compensation with any other person unless they are members and
associates of my law firm.
D I have agreed to share the above~disclosed compensation with another person or persons who are not members or
associates of my law firm. A copy of the agreement, together with a list of the names of the people sharing in the
compensation, is attached.
5. In retum for Ihe above-disclosed fee, f have agreed to render legal service for all aspects of the bankruptcy case, ihcluding:
a. Analysis of the debtor's financial situation, and rendering advice to the debtor in determining whether to file a petition in
bankruptcy;
b. Preparation and filing of any petition. schedules, statements of affairs and plan which may be required;
c. Representation of the debtor at the meeting of creditors and confirmation hearing, and any adjourned hearings.thereof;
6. By agre~ment with the debtor($), the above-disclosed fee does not include the fol!owing services:
Representation in any adversary proceedingst contested matter or appeals. The amount reflected above does not
include the fiting fee for the filing of this matter with the Court which was handled by the Debtor's attorney.
In a Chapter 13 case, this fee does not include representation in any Motion to Lift Stay, Motion to Dismissj Motion
to Modify Chapter 13 Plan. Request for Moratorium, Applications to Incur Consumer Debt. Motions to Vacate and
Motions to Reinstate. An additional fee will b& charged for representation in these matters.
The attorney fees to be paid through the Chapter 13 Plan shall be at a rate of $1000.00 upon the initial
dlspursernent, and for each month thereafter. at a rate of $250.00 until paid in full.
In the event my Chapter13 case is dismissed for any reason, I authorize the Chapter 13 Trustee to disburse any
remaining funds held by her to my attorney, Douglas J; Powell, up to the amount of attorneys fees agreed to in the
proceeding after Motion and entry of Order by this Court.
--
UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
· AUSTIN DIVISION
IN RE: Stella M. Powell
CHAPTER 13
DISCLOSURE OF COMPENSATION OF ATTORNEY FOR DEBTOR
CERTlFICATION
I certify that the foregoing is a complete statement of any agreement or arrangement for payment to me for
representation of the debtor(s) in this bankruptcy proceeding.
1/22/2013 lsi Douglas J. Powell
Date DougfasJ. Powell Bar No. 16194900
Law Offices of Douglas J. Powell, P.C.
820 W. 10th St.
Austin, TX 78701
Phone: (512) 476~2457 I Fax: (512) 477-4503
lsi Stella M. Pow&ll
Stella M. Powell
--
B 22C (Official Form 22C) (Chapter 13) (12/10) According to the calculations required by this statement:
In re: Stella M. Powell 0 The applicable commitment period is 3 years.
0 The applicable commitment period is 5 years.
Case Number: 12-12842 0 Disposable income Is determined under§ 1325(b)(3).
D Disposable income is not determined under§ 1326{b)(3).
(Check the boxes as directed in Lines 17 and 23 of this statement.)
CHAPTER 13 STATEMENT OF C.URRENT MONTHLY INCOME
AND CALCULATION OF COMMITMENT PERIOD AND DISPOSABLE INCOME
In addition to Schedules I and J, this statement must be completed by every individual chapter 13 debtor, whether or not filing jointly.
Joint debtors may complete one statement only.
..._ ......,_, ..
Part I. REPORT OF INCOME
Marital/filing status. Check the box that applies and complete the balance of this part of this statement as directed.
a. Iii Unmarried. Complete only Cotumn A ('"Debtor's Income") for Lines 2-10.
b. 0 Married. Complete both Column A ("Debtor's Income") and Column B {..Spouse's Income'•) for Lines 2-10.
AU figures must reflect average monthly income received from all sources, derived ColumnA ColumnS
1 during the six calendar months prior 1o filing the bankruptcy case~ ending on the last day
of the month before the filing. If the amount of monthly income varied during the six Spouse•s
Debtor's
months, you must divide the six-month total by six, and enter the result on the Income Income
appropriate line.
2 Gross wages, salary. tipst bonuses, overtime, commissions. $17,291.67
Income from the operation of a business, profession, or farm. Subtract line b from
Une a and enter the difference in the appropriate column(s) of Line 3. If you operate more
than one business, profession or farm, enter aggregate numbers and provide details on
3 an attachment. Do not enter a number less than zero. Do not include any part of the
business expenses entered on Line bas a deduction in Part IV.
a. Gross receipts $0.00
b. Ordinary and necessary business expenses $0.00
c. Business income Subtract line b from Line a $0.00
Rent and other real property income. Subtract Line b from Line a and enter the
difference in the appropriate column(s) of Line 4. Do not enter a number less than zero.
Do not Include any part of of the operating expenses entered on Line b as a deduction
4 in Part IV.
a. Gross receipts $0.00
b. Ordinary and necessary operating expense:s $0.00
c. Rent and other real property income Subtract Line b from Line a $0.00
5 Interest, dividends, and royalties. $0.00
6 Pension and retirement income. $0.00
Any amounts paid by another person or entity, on a regular basis, for the household
expenses of the debtor or the debtor's dependents, Including chHd support paid for
7 that purpose. Do not Include alimony or separate maintenance payments or amounts
paid by the debtor's spouse. Each regular payment should be reported in only one
column; if a payment Is listed in Column A. do not report that payment in Column B. $0.00
Unemployment compensation. Enter the amount in the appropriate column(s) of Line a_
However, if you contend that unemployment compensation received by you or your
8 $pouse was a benefit under the Socia..I·Security Actj do not list the amount of such
compensation in Column A orB, but instead state the amount in the space below:
Unemployment compensation claimed to be a
benefit under the Social Security Act I Debtor
$0.00 I Spouse
Income from all other sources. Specify source and amount. If necessary, list additional
I $0.00
sources on a separate page. Total and enter on Line 9. Do not Include alimony or
separate maintenance payments paid by your spouse~ but include all other payments
of alimony or separate maintenance. Do not include any benefits received under the
the Social Security Act or payments received as a victim of a war crime, crime against
9
humanity, or as a victim of international or domestic terrorism.
I~I I r ....
I $0.00
:!. ue~11a !-'"'St:a~·rulr, I;{)Uf.'Y .,;fe'"'<, T"aviS Co
·-
B 22C (Official Form 22C) (Chapter 13) (12/10)
10 Subtotal. Add Lines 2 thru 9 ln Column A, and, if Column B is completed, add Lines 2 $17,291.67
through 9 in Column B. Enter the total(s).
Total. lf Cotumn B has been completed, add Line 10, Column A to Line 10, Column B,
11 and enter the total. If Column B has not been completed, enter the amount from Line 10, $17,291.67
ColumnA.
Part II. CALCULATION OF§ 1325(b)(4) COMMITMENT PERIOD
12 Enter the amount from Line 11. $17.291.67
Marital adjustment. If you are married, but are not filing jointly with your spouse, AND if you contend that
13 calculation of the commitment period under§ 1325(b}(4) does not require inclusion of the income of your
spouse. enter on Line 13 the amount of income listed in.Une 10, Column B that was NOT paid on a
regular basis for the household expenses of you or your dependents and specify, in the lines below, the
basls for exctuding this income (such as payment of the spouse1s tax UabiUty or the spouse's support of
persons other than the debtor or the debtor's dependents) and the amount of income de~oted to each
purpose. If necessary, list additional adjustments on a separate page. If the conditions for entering this
adjustment do not apply, enter zero.
I::I
Total and enteron Line 13.
I I
$0.00
14 Subtract line 13 from Line 12 and enter the result. $17,291.67
Annualized current monthly income for§ 1325(b}(4). Multiply the amount from Line 14 by the number 12
15 $207,500.04
and en1er the result.
Applicable median family income. Enter1he median family income for applicable state and household
size. (This information is available by family size. at \WIW.usdoj.gov/usV or from the clerk of the bankruptcy
16 court.)
a. Enter debtor's state of residence: Texas b. Enter debtor1s household size: 1 $40,925.00
Application of§ 1325(b)(4). Check the applicable box and proceed as directed.
0 The amount on Line 15 is less than the amount on Line 16. Check the box for "The appftcable commitment period is
17 3 year'S" at the top of page 1 of this statement and continue with this statement.
121 The amount on Line 15 is not less than the amount on Line 16. Check the box for "The applicable comm"ment period
is 5 years" at the top of page 1 of this statement and continue with this statement
Part Ill. APPLICATION OF§ 1325(b)(3) FOR DETERMINING DISPOSABLE INCOME
18 Enter the amount from Une 11. $17,291.67
Marital adjustment. If you are married, but are not filing jointly with your spouse, enter on Line 19 the total
19 of any income listed in Line 10, Column B that was NOT paid on a regular basis for the household
expenses of the debtor or the debtor's dependents. Specify in the lines below the basis for excluding the
Column B income (such as payment of the spouse's tax liability or the spouse's support of persons other
than the debtor or the debtor's dependents) and the amount of income devoted to each purpose. If
necessary, list additional adjustments on a separate page. If the conditions for entering this adjustment
do not apply, enter zero.
I;
To~l
I
and enter on Line 19.
I I
$0.00
·-
B 22C (Official Form 22C) (Chapter 13) {12/10)
20 Curl'ent monthly Income for§ 1325(b)(3). Subtract Line 19 from Line 18 and enter the result. $17,291.67
Annualized current monthly income for§ 1325{b){3). Multiply the amount from Line 20 by the number 12
21
and enter the result. $207,500.04
22 Applicable median family income. Enter the amount from Line 16. $40)925.00
Application of§ 1325(b)(3). Check the applicable box and proceed as directed.
li!} The amount on Line 21 Is more than the amount on Line 22. Check the box for 11 Disposable income is determined
23 under§ 1325(b)(3)" at the top of page 1 of this statement and complete the remaining parts of this statement.
D The amount on Line 21 is not more than the amount on line 22. Check the box for "Disposable Income is not
determined under§ 1325(b)(3t at the top of page 1 of this statement and complete Part VII of this statement. DO NOT
COMPLETE PARTS IV, V, OR VI.
Part IV. CALCULATION OF DEDUCTIONS FROM INCOME
Subpart A: Deductions under Standards of the Internal Revenue Service ('IRS)
National Standards: food, apparel and services, housekeeping supplies, personal care, and
miscellaneous. Enter in Line 24A the "Total" amount from IRS National Standards for Allowable Living
24A Expenses for tne applicable number or persons. (This Information is available at \IIIWV\I'.usdoj.gov/ustl or
from the clerk ofthe bankruptcy rourt.) The applicable number of persons is the number that would
currently be allowed as exemptions on your federal income tax return, plus the number of any additional
dependents whom you support. $565.00
National Standards: health care. Enter in Line a1 below the amount from 1RS National Standards for
Out-of-Pocket Health Care for persons under 65 years of age, and in Line a2 the IRS National Standards
for Out-of-Pocket Health Care for persons 65 years of age or older. (This information is available at
www.usdoj.gov/usU or from the clerk of the bankruptcy court.) Enter ln Line b1 the applicable number of
persons who are under 65 years of age, and enter in Line b2 the applicable number of persons who are
65 years of age or older. (The applicable number of persons in each age category is the number in that
category that would currently be allowed as exemptions on your federal income tax return, plus the number
of any additional dependents whom you support.) Multiply Line a1 by Line b1 to obtain a total amount for
persons under 65, a.nd enter the result in Line c1. Multiply Line a2 by Line b2 to obtain a total amount for
24B persons 65 and older, and enter the result in Line c2. Add Unes c1 and c2 to obtain a total he~lth care
amount. and enter the re$ult in Line 248.
Persons under 65 years of age Persons 65. years of age or older
a1. Allowance per person $60.00 a2. Allowance per person $144.00
b1. Number of persons 1 b2. Number of persons
c1. Subtotal ...
$60.00 c2. Subtotal $0.00 $60.00
local Standards: housing and utilities; non-mortgage expenses. Enter the amount of the IRS Housing
and Utilities Standards; non-mortgage expenses for the applicable county and family size. (This
25A information is available at \NVvW.usdoj.govfustl or from the clerk of the bankruptcy court.) The applicable
family size consists of the number that would currently be allowed as exemptions on your federal Income
tax return, plus the number of any additional dependents whom you support. $427.00
..........
B 22C (Official Form 22C) (Chapter 13} (12/1 0)
Local Standards: housing and utilities; mortgage/rent expense. Enter, in Line a below, the amount of the
IRS Housing and Utilities Standards; mortgage/rent expense for your county and family size (this
information is available at \WMI.usdoj.gov/usU or from the clerk of the bankruptcy court) (the appHcable
family size consists of the number that would currently be allowed as exemptions on your federal income
tax return, plus the number of any additional dependents whom you support); enter on Line b the total of
25B the Average Monthly Payments for any debts secured by your home, as stated tn Line 47; subtract Line b
from Line a and enter the result in Line 258. DO NOT ENTER AN AMOUNT LESS THAN ZERO.
a. IRS Housing and Utilities Standards; mortgage/rent expense $1,208.00
b. Average Monthly Payment for any debts secured by your home, if
any, as stated in Line 47 $4,261.00
c. Net mortgage/rental expense Subtract Line b from Une a. $0.00
Local Standards: housing and utUitlesj adjustment. If you contend that the process set out in Lines 25A
and 258 does not accurately compute the allowance to which you are entitled under the IRS Housing and
26 Utilities Standards, enter any additional amount to which you contend you are entitled, and state the basis
for your contention in the space below:
Local Standards: transportation; vehicle operationlpublic transportation expense.
You-are entitled to an expense allowance in this category regardless of whether you pay the expenses of
operating a vehicle and regardless of whether you use public transportation.
27A Check the number of vehicles for which you pay the operating expenses or for which the operating expenses
are included as a contribution to your household expenses in Line 7. 0 0 G2J1 0 2 or more.
If you checked 01 enter on Line 27A the ~~Public Transportation" amount from IRS Local Standards:
Transportation. If you checked 1 or 2 or more, enter on Line 27A the "Operating Costs" amount from IRS
Local Standards: Transportation for the applicable number of vehicles in the applicable Metropolitan
Statistical Area or Census Region. {These amounts are available at www.usdoj.gov/ustl or from the clerk
of the bankruptcy court.) $244.00
Local Standards: transportation; additional public transportation expense.
If you pay the operating expenses for a vehicle and also use public transportation, and you contend that
278 you are entitled to an additional deduction for your public transportation expenses, enter on Line 27B the
"Public Transportation" amount from IRS Local Standards: Transportation. (This amount is available at
W'WW.usdoj.gov/ustl or from the clerk of the bankruptcy court.) $0.00
- -·.
B 22C (Official Form 22C) (Chapter 13) (12/10)
local Standards: transportation ownership/lease expense; Vehicle 1.
Check the number of vehicles for Which you claim an ownershipllease expense. (You may not claim an
ownership/lease expense for more than two vehicles.) 01 02 or more.
Enter, in Line a below, the "Ownership Costs" for "One Car" from the IRS Local Standards: Transportation
(available at WININ'.usdoj.govlust/ or from the clerk of the bankruptcy court); enter in Line b the total of the
Average Monthly Payments for any debts secured by Vehicle 1, as stated in Line 47; subtract Une b from
28 Line a and enter the result in Line 28. DO NOT ENTER AN AMOUNT LESS THAN ZERO.
a. IRS Transportation Standards, Ownership Costs
b. Average Monthly Payment for any debts secured by Vehicle 1. as
stated in Line 47
c. Net ownership/lease expense for Vehicle 1 Subtract Line b from Line a.
Local Standards: transportation ownership/lease expense; Vehicle 2.
Complete this line only if you checked the "2 or more" Box in Line 28. .
Enter, in Line a below, the "Ownership Costs" for "One Car" from the IRS Local Standards: Transportation
(available at Vw'WIN.usdoj.gov/usV or from the clerk of the bankruptcy court}; enter in Line b the total of the
Average Monthly Payments for any debts secured by Vehicle 2, as stated in line 47; subtract Une b from
29 Line a and enter the result in Line 29. DO NOT ENTER AN AMOUNT LESS THAN ZERO.
a. IRS Transportation Standards, Ownership Costs
b. Average Monthly Payment for any debts secured by Vehicle 2, as
stated in Line 47
c. Net ownership/lease expense for Vehicle 2 Subtract Line b from Line a.
Other Necessary Expenses: taxes. Enter the total average monthly expense that you actually incur for atf
federal, state, and local taxes, other than real estate and sales taxes, such as income taxes, self-
30 employment taxes, social-security taxes, and Medicare taxes. DO NOT INCLUDE REAL ESTATE OR $4,636.15
SALES TAXES.
Other Ne.cessary Expenses: involuntary deductions for employment. Enter the total average monthly
deductions that are required for your employment, such as mandatory retirement contributions, union
31 dues, and uniform costs. DO NOT INCLUDE DISCRETIONARY AMOUNTS, SUCH AS VOLUNTARY $142.87
401 {K) CONTRIBUTIONS.
Other Necessary Expenses; life insurance. Enter total average monthly premiums that you actually pay
32 for term life insurance for yourself. DO NOT INCLUDE PREMIUMS FOR INSURANCE ON YOUR $189.56
DEPENDENTS, FOR WHOLE LIFE OR FOR ANY OTHER FORM OF INSURANCE.
Other Necessary Expenses: court-ordered payments. Enter the total monthly amount that you are
33 required to pay pursuant to the order of fl court or administrative agency, such as spousal or child support
payments. DO NOT INCLUDE PAYMENTS ON PAST DUE OBLIGATIONS INCLUDED IN LINE 49. $0.00
Other Necessary Expenses: education for employment or for a physically or mentally challenged child.
Enter the total average monthly amount that you actually expend for education that is a condition of
34
employment and for education that is required for a physically or mentally chaflenged dependent child for $0.00
whom no public education providing similar services is available.
Othe-r Necessary Expenses! childcare. Enter the total average monthly amount that you actually expend on
35 ohijdcare--such as baby-sitting, day care, nursery and preschool. DO NOT INCLUDE OTHER $0.00
EDUCATIONAL PAYMENTS.
Other Necessary Expenses: health care-. Enter the total average monthly amount that you actually expend
36 on health care that is required for the health and welfare of yourself or your dependents, that is not $0.00
reimbursed by insurance or paid by a health savings account, and that is in excess of the amount entered
in Line 249. DO NOT INCLUDE PAYMENTS FOR HEALTH INSURANCE OR HEALTH SAVINGS
ACCOUNTS LISTED IN LINE 39.
Other Necessary Expenses: telecommunication services. Enter the total average monthly amount that
you actually pay for telecommunication services other than your basic home telephone and cell phone
37 service-such as pagers., call waiting, caller id, special long distance, or internet service--to the extent $0.00
necessary for your health and welfare or that of your dependents. DO NOT INCLUDE ANY AMOUNT
PREVIOUSLY DEDUCTED.
38 Total Expenses Allowed under IRS Standards. Enter the total of Lines 24 through 37. $61264.58
l uans t,d::lH::?t'liOif, t.f)L •., , ¥ '--:''~ ·'<-, ':a11:s w~ .. ~.y,
-- -.
B 22C (Official Form 22C) (Chapter 13) (12/10)
Subpart B: Additional Living Expense Deductions
Note: Do not include any expenses that you have listed in Lines 24-37
Health Insurance, Disability Insurance, and Health Savings Account Expens«;ts. List the monthly
expenses in the categories set out in lines a-c below that are reasonably necessary for yourself, your
spouse, or your dependents.
a. Health Insurance $0.00
39
b. Disability Insurance $29.38
c. Health Savings Account $0.00
Total and enter on Line 39 $29.38
IF YOU DO NOT ACTUALLY EXPEND THIS TOTAL AMOUNT, state your actual total average monthly
expenditures in the space below:
Continued contributions to the care of household or family members. Enter the total average actual
monthly expenses that you wilt continue to pay for the reasonable and necessary care and support of an
40 elderly, chronically lll, or disabl.ed member of your household or member of your immediate family who is $0.00
unable to pay for such expenses. DO NOT INCLUDE PAYMENTS LISTED IN LINE 34.
Protection against famlly violence. Enter the total average reasonably necessary monthly expenses that
41 you actually incur to maintain the safety of your family under the Family Violence Prevention and Services $0.00
Act or other applicable federal law. The nature of these expenses is required to be 'kept confidential by the
court.
Home energy costs. Enter the total average monthly amount. in excess of the allowance specified by IRS
Local Standards for Housing and Utilities, that you actually expend tot home energy costs. YOU MUST
42
PROVIDE YOUR CASE TRUSTEE WITH DOCUMENTATION OF YOUR ACTUAL EXPENSES, AND YOU
MUST DEMONSTRATE THAT THE ADDITIONAL AMOUNT CLAIMED JS REASONABLE AND NECESSARY,
Education expen&es for dependent chil~ren under 18. Enter the total average monthly expenses that you
actually incur, not to exceed $147.92* per child, for attendance at a private or public elementary or
43
secondary school by your dependent children less than 18 years of age. YOU MUST PROVIDE YOUR $0.00
CASE TRUSTEE WITH DOCUMENTATION OF YOUR ACTUAL EXPENSES, AND YOU MUST EXPLAIN
WHY THE AMOUNT CLAIMED IS REASONABLE AND NECESSARY AND NOT ALREADY ACCOUNTED
FOR IN THE IRS STANDARDS.
Additional food and clothing expense. Enter the total average monthly amount by which your food and
clothing expenses exceed the combined allowances for food and clothing (apparel and services) in the
44 IRS National Standards, not to exceed 5% of those combined allowances. (This information is available
at www.usdoj.gov/ustl or from the cierk of the bankruptcy court.) YOU MUST DEMONSTRATE THAT THE
ADDITIONAL AMOUNT CLAIMED lS REASONABLE AND NECESSARY.
45 Charitable contributions. Enter the amount reasonably necessary for you to expend each month on $0.00
charitable contributions in the form of cash or financial instruments to a charitable organization as defined
in 26 U.S.C. § 17D(c){1)-(2). DO NOT INCLUDE ANY AMOUNT IN EXCESS OF 15% OF YOUR GROSS
MONTHLY INCOME.
46 Total Additional Expense Deductions under§ 707(b). Enter the total of Lines 39 through 45.
·- .~ ..
B 22C (Official Form 22C) (Chapter 13) (12f10)
Subpart C: Deductions for Debt Payment
Future payments on secured claims. For each of your debts that is secured by an interest in property that
you own, list the name of the creditor, identify the property securing the debt, state the Average Monthly
Payment, and check whether the payment includes taxes or insurance. The Average Monthly Payment is
the total of all amounts scheduled as contractually due to each Secured Creditor in the 60 months
following the filing of the bankruptcy case, divided by 60. If necessary, list additional entries on a separate
47 page. Enter the total of the Average Monthly Payments on Une 47.
Name of Creditor Property Securing the Debt Average Does payment
Monthly include taxes
Payment or insurance?
a. HSBC Mortgage Services Homestead $3,346.00 oyes ifno
b. HSBC Mortgage Services homestead $915.00 oyes ~no
c. Travis County Tax Collectlom Homestead $0.00 Dyes 1tJno
Total: Add
Lines a, b and c $4,261.00
Other payments on secured claims. If any of debts listed in Line 4 7 are secured by your primary
residence, a motor vehicle, or other property necessary for your support or the support of your dependents,
you may include in your deduction 1/60th of any amount (the "cure amount") that you must pay the creditor
in addition to the payments listed In Line 47, in order to maintain possession of the property. The cure
amount would include any sums in default that must be paid In order to avoid repossession or
48 foree1osure. List and total any such amounts in the following chart. If necessary, list additional entries on
a separate page.
Name of Creditor Property Securing the Debt 1/60th of the Cure Amount
a. HSBC Mortgage Services Homestead $833.33
b. HSBC Mortgage Services homestead $333.33
c.
Total: Add Lines a, b and c $1,166.66
Payments on prepetitlon priority claims. Enter the total amount, divided by 60j of an priority claims, such
49 as priority tax. child support and alimony claims, for which you were liable at the time of your bankruptcy $38.02
filing. DO NOT INCLUDE CURRENT OBLIGATIONS, SUCH AS THOSE SET OUT IN LINE 33.
Chapter 13 administrative expenses. Multiply the amount in Line a by the amount in Line b, and enter the
resulting administrative expense.
a. Projected average monthly chapter 13 plan payment. $5,110.00
b. Current multiplier for your district as determined under schedules
50 issued by the Executive Offrce for United States Trustees. (This 9.9%
Jnformation is available at www.usdoj.gov/ustl or from the clerk of
the bankruptcy court.)
c. Average monthly administrative expense of chapter 13 case Total: Multiply Lines a and b $505.89
51 Total Deductions for Debt Paym$nt. Enter the total of Lines 47 through 50. $5,971.57
Subpart D: Total Deductions from Income
52 Total of all deductions from income. Enter the total of Lines 38, 46 and 51. I $12.265.53
Part V. DETERMINATION OF DISPOSABLE INCOME UNDER§ 1325(b)(~)
53 Total current monthly lncom~. Enter the amount from Line 20. $17,2$1.67
Support Income. Enter the monthly average of any child support payments, foster care payments, or
54 dlsability payments for a dependent child, reported in Part I, that you received in accordance with
applicable nonbankruptcy law, to the extent reasonably necessary to be expended for such child.
[, S2::15 Q::;:-'s.'i:..:vcir, C-+9'..p '/
-&~
·-r.;;1.!)
Supplement to the Record:
Affidavit Regarding Court Notice of the Constitutional Challenge of a State Statute
under Texas Government Code § 402.010
Before me, the undersigned authority, personally appeared Christy Nisbett, who being duly sworn
deposed as follows:
"My name is Christy Nisbett. I am at least 18 years of age and of sound mind. I have personal
knowledge of the facts alleged herein.
i'Pursuant to Texas Government Code Section 402.010(a), Legal Challenges to Constitutionality of
State Statutes, Travis County Probate Court No. 1 was required to serve on the Attorney General
notice of the constitutional challenge of a state statute filed in this cause, along with a copy of the
pleadings that raised the challenge.
"On behalf of the court and in my capacity as Court Administrator for Travis County Probate Court
No. 1, I served the required notice and pleadings electronically to an email address designated by
the Attorney General for the purposes of Section 402.010 - one of the methods of service specified
by the statute.
"These email messages, including their attachments, together with the email responses from the
Office of the Attorney General are attached as an Exhibit to this affidavit.
"There are a total of six email messages:
Date& Time Exhibit Pages To &From Description
Serving notice of attached filed challenge, asking for
11112/2014, From the Court to the Office
1-2 confinnation that ( 1) challenge was received and
4:48p.m. of the Attorney General
(2) email address used was the appropriate one
Acknowledging that fonn was received and that
11/12/2014, From the Office ofthe
3-4 email address was appropriate place to send the
4:54p.m. Attorney General to the Court
fonn, and requesting pleadings
11/12/2014, From the Court to the Office Attaching required pleadings and noting that second
5-23
5:14p.m. of the Attorney General page of Supplemental Response was not scanned yet
11112/2014, From the Office of the
24-25 Acknowledging receipt
5:15p.m. Attorney General to the Court
11113/2014, From the Court to the Office
26-29 Attaching complete supplemental response
10:07 a.m. of the Attorney General
11/13/2014, From the Office of the Acknowledging receipt
30-31
10:13 a.m. Attorney General to the Court
lllllllllllllllllllllllllllllllllllllltllllllll11111111
000408642
--· -·
No. L:-1-PB-14-001695, Supplement to the Record
"The email messages and the attaclunents set out in the following Exhibit have not been altered in
anyway.
''Further affiant sayeth not."
Court Administrator
robate Court No. 1
SUBSCRIBED AND SWORN TO BEFORE ME on February 25, 2015 by Christy Nisbett, Court
Administrator for Travis County Probate Court No. 1.
Affidavit Page 2 of 2
- -
Affidavit Exbibit: emails to and from Travis County Probate Court No. 1, including attachments
Christy Nisbett
From: Christy Nisbett
Sent: Wednesday, November 12, 2014 4:48 PM
To: COnst_claims@texasattorneygeneral.gov'
1
SUbject: Challenge to Constitutionality of a State Statute
Attachments: From Travis County Probate Court No. l.pdf
Please see the attached, which was filed in Travis County Probate Court No. 1.
We would appreciate your confirming that you received this attachment and that we have sent this attachment to the
appropriate place.
Thanks,
Christy Nisbett
Probate Court Administrator I Staff Attorney
Travis County Probate Court No. 1
1000 Guadalupe Street, Room 217
Austin, TX 78701
Phone: (512) 854-9559
Fax: (512) 854-4418
PletJSe note the county recently changed its emoll domain name. My new email address Is
christv.nlsbettl!tt'tlvlscpuntvtx.qov.
Exhibit Page 1 of 31
Affidavit Exbibit: ~ils to and from Travis County Probate Court No. 11"ifleluding attachments
-..
r11~. t
- -- ---
....,_..._"',...,~.If.<~;~. IQ ,..,,'
Cha.nge to ConatitutloaaUty of a State Statute Dana DeBeauvo r
Travis County Cler ~
This form must be completed by a party filing a petition, motion or other pleading ~-
Sent: Wednesday, November 12, 2014 4:54 PM
To: Christy Nisbett; const_claims
Subject: RE: Challenge to Constitutionality of a State Statute
Ms. Nisbett,
I acknowledge that the form has been received and that this email address was the appropriate place to send it. Thank
you!
Would you mine please also sending the pleading in whtch Sonemaly Phrasavath challenged the constitutionality of the
Texas Family Code to this same email address? I would really appreciate it. ·
Yours with gratitude,
Benjamin L. Dower
Assistant Attorney General
General Litigation Division
P.0. Box 12548, capitol Station
Austin, Texas 78711-2548
512.475.4078 (direct)
512.320.0667 (fax)
benjamin.dower@texasattorneygeneral.gov
ATTORNEY-CLIENT PRIVILEGED: This is a confidential communication and intended for the addressee(s) only. Any
unauthorized interception or disclosure of this transmission is prohibited. If you are not the intended recipient of this
message, please notify the sender and destroy this and all copies of this communication. Thank you.
·----·-···-···----·----·····-----
From: Christy Nisbett fmailto:Christv.Nisbett@traviscountvtx.govl
sent: Wednesday, November 12,2014 4:48PM
To: const_clalms
Subject: Challenge to Constitutionality of a State Statute
Please see the attached, which was filed in Travis County Probate Court No. 1.
we would appreciate your confirming that you received this attachment and that we have sent this attachment to the
appropriate place.
Thanks,
Christy Nisbett
Probate Court Administrator I Staff Attorney
Travis County Probate Court No. 1
1000 Guadalupe Street, Room 217
Austin, TX 78701
Phone: (512) 854-9559
Exhibit Page 3 of 31
Affidavit Exbibit: emails to and from Travis County Probate Court No. 1, including attachments
Fax: (512) 854--4418
Pletlse note tile county recently changed Its email domain name. My new email address Is
chrlstv.nlsbettt!tralliscounrvtx.qov.
Exhibit Page 4 of 31
-·
Affidavit Exbibit: emails to and from Travis County Probate Court No. 1, including attachments
Christy Nisbett
From: Christy Nisbett
Sent: Wednesday, November 12, 2014 5:14 PM
To: 'Dower, Benjamin•; const_claims
Subject: RE: Challenge to Constitutionality of a State Statute
Attachments: Powell Response to Special Exceptions.pdf; Supplement, page l.pdf
The pleading is attached. I've also attached the first page of a supplemental response. The clerk's office scanned only
the first page, and the hard copy has not made it to the file. I'll forward the full pleading as soon as we track it down.
Christy
·-··" ... ---~-·----··-------·
---··-~-- .... ____ ,,_____ ..... ____________ ·"·-------·-.. -~-------------
From: Dower, Benjamin rmailto:Ben1amln.Oower®texasattorneygeneral.govl
Sent: Wednesday, November 12, 2014 4:5-4 PM
To: Christy Nisbett; const_clalms
SUbject: RE: Challenge to Constitutionality of a State Statute
Ms. Nisbett.
I acknowledge that the form has been received and that this email address was the appropriate place to send it. Thank
you!
Would you mine please also sending the pleading in which Sonemaly Phrasavath challenged the constitutionality of the
Texas Family Code to this same email address? I would really appreciate it.
Yours with gratitude,
Benjamin L. Dower
Assistant Attorney General
General Litigation Division
P.0. Box 12548, Capitol Station
Austin, Texas 78711-2548
512.475.4078 (direct)
512.320.0667 (fax)
benjamin.dower@texasattorneygeneral.gov
AITORNEY·CLIENT PRIVILEGED: This is a confidential communication and intended for the addressee(s) only. Any
unauthorized interception or disclosure of this transmission is prohibited. If you are not the intended recipient of this
message, please notify the sender and destroy this and all copies of this communication. Thank you.
- ------· ------------~~-------------·----- ..-·------·- -----~-------
From: Christy Nisbett [mallto:Chrlsty.NisbettGtraviscounMx.aov]
Sent: Wednesday, November 12, 2014 4:48 PM
To: const_dalms
SUbject: Challenge to ConstitUtionality of a State Statute
Please see the attached, which was filed in Travis County Probate Court No.1.
Exhibit Page 5 of 31
Affidavit Exbibit: emails to and from Travis County Probate Court No.1, including attachments
We would appreciate your confirming that you received this attachment and that we have sent this attachment to the
appropriate place.
Thanks,
Christy Nisbett
Probate Court Administrator I Staff Attorney
Travis County Probate Court No. 1
1000 Guadalupe Street, Room 217
Austin, TX 78701
Phone: (512) 854-9559
Fax: (512) 854-4418
Please note the county recently changed Its emt1il domoln name. My new emDil address is
chrlstJ!.. nlsbettl!trtntlscountJttJC.qov.
2015
f-
Exhibit Page 6 of 31
.~
-·
Affidavit Exbibit: ~ails to and from Travis County Probate Court No. 1-~luding attachments
Filed: 111612014 5:23:19 PM
Dana DeBeauvoir
Travis County Clerk
No. C-1-PB-14-801695 ~1·P~14-001695
Abram Gonzalez
ESTATE OF I IN THE PROBATE COURT
§
STELLA MA1UI! POWELL, I NtJMBERl
§
DECEASED § TRAVIS COUNTY, TEXAS
SONJMALY rJIRASAYATH'S BESPONSI TO SPICIAL EXCEPTIONS AND
MOTJpN IP , . , . AND MOTION I'OR CONTINJJANCE
Sonemaly Phrasavath ("Sonemaly") heteby files this Response to the Special Exceptions
and Motion to Dismiss filed by James Powell and Alice Huseman. Sonemaly also files, in the
altemative, a Motion for Continuance. In support of her Response and the Motion for
Continuance, Sonemaly would show the Court the following:
I.
lptrodgdlon
Stella Powell e'SteUaj, the decedent herein, and Sonemaly were in a committed,
same-sex ~eladODShip for. approximately eight years and were manied for almost six years. Like
any other married couple, they resided in the same home, celebrated their love for each other
before fiiends and family at a marriage ceremony, and lived opeoly as spouses. During Stella's
final illness. Sonemaly cared for Stella at their home until Stella ultimately lost her battle with
cancer at the much too young age of 53.
SonemaJy has filed an application for heirship in tbis matter as Stella's common law
spouse. James Powell and Alice Huseman (coUectively, ''Movantst'), who are Stella's surviving
sublinp, have filed special exceptioos and amo1ion to dismiss Sonemaly•s application based on
Texas's laws banning the recognition of same-sex marriages. These laws. Hke those in many
other states, bave beeo struck down since the United States Supreme Courtts landmark decision
1
T~.~'lh:: C2:'fjty ma: -'liE- 18 a true am:f •·
t JHu~_:~. ,).)~'} ?.E ~:.1!nl:: apc0:~,1r; o~ itt.lllli in m1· effie~.
\,il'_l~~ Ill) i!J.fl0 2.110 :seal ct ll~ ou
Affidavit Exhibit: er:Jilails to and from Travis County Probate Court No. 1, iAeluding attachments
B. De UDIW States SUpreJDe Coart's Deelsioa ill Wlllbor aad ill effect on state Jaws
bauiac.....,.• marriage.
In Windsor, plaintiff Edith Windsor challenged the provision of DOMA that clefined
"marriage" and "spouse" to exclude same-sex spouses. 133 S.Ct. 2615, 2682 (2013). Ms.
Windsor bad married Thea Spyer in Canada and that marriage was subsequently recognized in
their home state of New York. Jd. at 2683. Ms. Spyer died in 2009 and left her entire estate to
Ms. Windsor. Id. But because of Section J of DOMA ("'Section 3"), wbich defines "marriage"
and "spouse" as excluding same-sex spouses for purposes of all federal statutes snd mgulations,
Ms. Wmdsor could not qualify as Ms. Spyer's "surviving spouse" for purposes of the federal
estate tax exemption. ld. As a result, Ms. Windsor was required to pay $363,053.00 in federal
estate taxes that she otherwise would not have been requin=d to pay if her marriage to Ms. Spyer
was recopized under federal tax law. Id. Ms. Wmdsor challenged Section lt a challenge that
wu eventually clecided by the Supmne Court.
The Court•s opinion, written by Justice Anthony Kennedy, invalidated Section 3 as
uaconstitutional under the Fifth Amendment•s Due Process Clause.Jd. at 2693. In reaching this
holding, Justice Kennedy made the foUowiog statements regarding Section 3:
• Section 3's •'principal purpose is to impose inequality, not for other reasons like
government efficiency."
• Section 3 "tells those [same-sex] couples. and all the worl~ that their otherwise
valid marriages are unworthy of federal recopidon."
• Section 3 "demeans the couple. whose moral and sexual choices the Constitution
protects." citing Lawrii'ICB v. Texas, 539 U.S. SSS (2003) (Sirildng down Texas's
sodomy laws as unc:onstitutional).
• Section 3 "humiliates tens of thousands of children now being raised by same-sex
couples. The law in question makes it even more difficult for the childleu to
6
Exhibit Page 12 of 31
·--- -
Affidavit Exbibit: ~ils to and from Travis County Probate Court No. 1, -if;K:Iuding attachments
understand the intearlty and closeness of their own family and its concord with
other families in the community and in their daily lives."
• "Under DOM.Aw same-sex married couples have their lives burdened by reason of
govemmeat decree. in visible and public ways."
Id. at 2694-95. The Court held that for these same reasons, Section 3 denied same-sex spouses
equal protection of the laws guaranteed by the FoU11eenth Amendment.Id. at 2695 ("[w)bile the
Fifth Amendment itself withdraws from Government the power to degrade or demean the way
[DOMA] doess the equal protection clause of the Fourteenth Amendment makes that Fifth
Amendment right all the more specific: and all the better understood and pre~.").
In a prophetic dissent concerning, in part. the breadth of Justice Keanecly' s opinion,
Justice Scalia reasoned that majority decision would be applied by lovuer courts to bold state
bans on same sex marriage unconstitutional.ld. at 2709. To illustrate his point, Justice Scalia
edited excerpts &om Justice Kennedy's opinion to show how they might apply equally in a
SIIDC-SeX maniage ban ease, incJuding in the following example:
{IJQW.o:] This stole law tells those couples, and all the world, that their otherwise
valid llllffiagea reltltlonshlps are unworthy of federal 11111e recogaition. Tbis
places same-sex couples in an UDStable position of beins in a second-tier JR8Rii~~t
nlatitm~~ltlp. The ditTerentiation demeans the couple, whose moral 8nd sexual
cboices the Constitution protects, see Lawrence.
ld. at 2709-10 (citing ld. at 2694). Justice Scalia could not have been more accurate with his
pxediction. as court after court entertaining challenges to state law same-sex matTiage bans have
applied Justice Kamedy's opinion in W'mdsor to almost uniformly strike those bans down.
At the time of this writin& almost twenty reported decisions., including decisions by the
Teuth, Fourth, Seventh and Ninth Circuit UniU:d States Courts of Appeals. have relied on
Wlntbor to strike down state bans on same sex marriage as WlCODStitutionaL Bishop v. Smith, 160
7
I
"11.)\.:jl:),
t--Ji!tl\;l
\.'1~1~~~ oi oti·i~..: Cll
Exhibit Page 13 of 31
(:;(~~:~~~>) L\i'L (_f.JABc:Otc2 2015
\ ·,_·; t·c •.. :;\tvt'f~'\.
~!} ~ ('H"ll'Jif}'\q\f!
. . -···--··--··"-··· !j\~~w ;.J -~· ..tt.!"·::_,;l'1'\·,
-
Affidavit Exbibit: e~~iails to and from Travis County Probate Court No. 1,-i'r'reluding attachments
F.3d 1070 (lOth Cir. 2014); Kitchen v. Herbert, 7SS F.3d 1193 (lOth Cir. 2014); Bostic v.
Schtlefor, 160 F.3d 352 (4th Cir. 2014); Baslcin v. Bogan, 166 F.ld 648 (7th Cir. 2014); Latta'·
Otter, -F.3d-, 2014 WI. 4977682 (9th Cir. 2014); Uorle v. Moser, No. 2:14-cv.02S18-DDC-
TJJ, -F.Supp.2d--(D. Kan. 2()14); Bowke v.IJuhetr, 996 F.Supp.2d 542 (W.O. Kent 2014);
Love Y. Beahear, 989 F.Supp.2d 536 (W.D. Kent. 2014); Gray v. Orr, 4 F.Supp.3d 984 (N.D.
UliDois 2014); Brermer v. Scott, 999 F.Supp.2d 1278 (N.D. Fla. 2014); Hamby v. Ptl17Hlll, -
F.Supp.3d-·, 2014 WL 5089399 (D. Alaska 2014); Wolfv. Walker, 986 F.Supp.2d 982 (W.D..
Wise. 2014); Mqjors v. Jeanes, -F.Supp.3d-, 2014 WL 4541173 (D. Ariz. 2014); Whitewood
v. WD(f, 992 F.Supp.2d 410 (M.D. Penn. 2014); Gelger v. Kitzhaber, 994 F.Supp.2d 1128 (D.
Otegon 2014); He"'1 v. Hl:tMs.. ·-F.Supp.2d-, 2014 WL 1418395 (S.D.. Ohio 2014); Tanco v.
HGrlmn, 7 F.Supp.3d 7.59 (M.D. Tenn. 2014); DeBoer v. Snyder, 973 F.Supp.2d. 757 (B.D.
Micbipn2014); OMrpfell v. Wymyslo, 962 F.Supp.2d 968 (S.D. Ohio 2013). Based on these
and other decisions, as well as related legislative enactments. same-sex couples in 32 states and
tho District of Columbia now have the freedom to marry, and nearly S9% of the U.S. population
lives in states currendy issuing marriage licenses to same-sex couples. FREEDoM to MARRY.
hUP:IJwww.freedomtomarry.om/statesl (last visited November 4, 2014). In fact. the undersigned
has discovered only two reported cases since Wind.tor upholding a state's ban on same-sex
marriage, and even these cases acknowledge the tidal wave of post·W"mtbor opinions striking
dowa the blms. See Robicheall% v. Cllldwel/, 2 F.Supp.3d 910 (E.D. La. 2014) (aclcnowlcdging
-.be near-IIIIIDimity oftbe many other federal courts that have spoken on this pteSSing issue" and
have declated same-sex marriage bans unconstitutional); YldDI v. Garcla--Podllla, -F.Supp.3d-
-, 2014 WL 5361987 (D. P.R. 2014) (acknowledging that ~{a] clear ma.jority of courts bave
8
Exhibit Page 14 of 31
Affidavit Exbibit: e!'Ws to and from Travis County Probate Court No. 1, i~ding attachments
struck down statutes that affirm opposite-gender marriage only). In contnJst to these two
opiniODS, since Windsor no circuit court of appeals bas upheld such a ban. In sum, the effect of
Wlnd.ror has been Swift and resolule--l.e. based on the majority's reasoning in Windsor. state
bans on same-sex marriage, including Texas's Bau. no longer pass constitutional muster.
C. Tbe IJelMRI decision.
In DeLeon v. Perry. Judge Orlando Garcia of the United States District Court for the
Western District of Texas-San Antonio DivisiOD, declared Texas's Ban unconstitutional. The
plaintiffs in DeLeon were two married couples, one lesbian couple who bad been married in
Massacbusetts and were seeking to ha~e their marriage recognized in Texas, and one gay couple
who bad applied and been denied a Texas marriage license. 975 F.Supp.2d 632, 640-41 (W.D.
Tex. 2014). The Defendants were various local and state officials defendiDa Texas's Bao. Jd.
After reciting the history of same-sex marriage baos in the United States, including the
enactment ofTeus's Ban and DOMA, the Court highlighted the watershed decision in W"md.ror.
/d. at 641-648. The court then considered the plaintitD' challenges to Texas's Ban under the
Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S.
Coustitulion. Id. at 649.
Beginning with its equal protection analysis, the court noted that "[t]be Equal Protection
Clause of the Fourteenlh Amendment commands that no state shall deny to any person within its
jurisdiction the equal protection of the laws•.. This essentially means that all persons similarly
situated shall be treated alike." Jd. at M9 (citing U.S. Const. Amend XIV § 1 and City of
Clebunte, T«<'. v. Cleburlf(J Lhllng Ctr.,. 473 U.S. 432 (1985)). Measured agaiust the equal
9
Exhibit Page 15 of 31
..-..
.
--
Affidavit Exbibit: eroail.s to and from Travis County Probate Court No. 1, i!Uilluding attachments
protection clause, Jaws are subject to three levels of scrutiny: strict scnatiny. intennediate
scrutiny. or radoaal basis review. Jd. Although the plaintiffs urged the court to apply strict or
intl!mediate SCIUtiny to Texas's Ban based on the history of state discrimination ·against
homosexuals. the fact that sexual orientation is immutable, and that homosexuals are a minority
with insufficient political power, the court found there was no need because the Bao could not
satisfy even the most deferential rational basis level of review. ld. at 651 ..52.
Rational basis requites only tbat the law bear some rational relationship to a legitimate
state interest. Id. at 652. The defendants identified two purported legitimate state interests
furthered by Texas's Ban: 1) increasing the likelihood that a mother and father will be in charge
of cbildreariDI; and 2) encounlling stable family environments for responsible procreation. ld. at
653.
The court first rejected the defendants' cbum that baning same-sex couples from
JDIID')'iag bears a ratiODIJ relationship to furthering the welfare of children and cbildrearing. Id.
EchoiDg Justice Keanedy in Wlntbor, the DeLeon court found tbat the ban actually injuries
children and "causes needless stisJnatb:atkm and humiliation for children being raised by the
loviag same sex couples being targeted." /d. The court found that the defendants bad failed to
pesent any evidence that denyina marriage to same-sex couples positively affects cbildrearing or
evidence that recognizing a same-sex marriage could affect a heterosexual couple's decision to
marry or raise a family. Jd.
The court tben assailed the defendants, prociU\tion arguments by reasoning tbat
"procreation is not and bas never been a qualification for marriage," and noted that such a
qualification would threaten "the legitimacy of marriages involving post-menopausal_ women,
10
Exhibit Page 16 of 31
Affidavit Exbibit: emris to and from Travis County Probate Court No. 1, in.duding attachments
infertile individuals, and individuals who choose to refi:ain from procreating." ld. at 654.
CoutinuiDg on, Judge Oarcia observed that ''(p]ermittiog same-sex couples to marry will not
affect the uwnber of opposite-sex couples who marryt divorce, cohabit, have children outside of
mania&e or otherwise aft'ect the stability of opposite-sex marriage." Jd. In fact, the court noted,
Texas's Ban hinders stable environments for procreation by denying the children of same--sex
couples the Rme stable family scmcture wbicb the defendants praised in their arguments. /d. at
6SS. The court concluded this section by stating that "the argument that allowing same-sex
couples to IDil'l')' will undermine procreation is nothing maze than a unsupported ~overbroad
genendization' that cannot be a basis for upboldins discriminatory legislation.tt ld.
FiDally, tbe court dispensed with aay IIJUlDent that tradition, or more specifically the
"traditional definition of marriage" is a reason for upholding Texas's Bans. /d. Citing Lllwrencet
the court noted that tradition alone . can never be a reason to uphold a law uader ratioual basis
JeYiew. Jd. As an example, Judp Garcia highlighted the U.S. Supreme Court•s decision in
LoYing v. J!lrglnia, which struck down state laws banning marriage between people of different
races, and reasoned that ''tradition alone cannot justify denying same-sex couples the right to
marry any more tball it could justify Virginia•s ban on interracial maniage." /d. at 6S6 (citing
Bostic v. Rainey, 910 F.Supp.2d 456 (E.D. Va. 2014)). The court concluded by holding that the
clefendants bad failed to show any rational relatioDShip between Texas's Ban and a legitimate
govemmenta1 purpose aad, tlterelore, the ban violated the plainaitTs' equal protection rights.ld.
2. The IJe£tton eourt'a due p , _ aaalysls.
After fiDdins Texas's Ban unconstitutional as a violation of equal protection, Judge
Oarcia addressed the plaintiffs' arpment that Texas's Ban was a violation of the Due Process
11
Exhibit Page 17 of 31
-
Affidavit Exbibit: eJAails to and from Travis County Probate Court No. 1, 'fT'I'E:Iuding attachments
Clause of the Fourteenth Amendment, which guarantees that all citizens have certain
t\mdemental rights. Id. The court first determined that, based on Supreme Court precedent,
ID8Iriap il indeed a t\m.damen1al ri~Jllt that implicates the additional fuadameatal rights of
privacy, Uberty, and associatio~~t all ofwbich are protected by the due process clause. /d. at 6S7-
S8. As such. the U.S. Supreme Court bad bistorically invalidated state laws that iDfiinge on an
iadividual"s right to marry, including most notably, in Iming v. VIrginia ~en the Court struck
down Viqioia's ban on interracial marriage. Id. at 658. Because Texas,s Ban "categoric:ally
den[ies] the ftmdamental right to many to a class of citizens," the court applied strict sc:rutiny,
which requires that the law be supported by a compellins state interest and be narrowly tailored
to effectuate tbat interest. ld. at 659-60. The court concluded, without discussion. that the
defendants bad failed to satisfY this diftlcult burden and concluded that Texas's Ban was
unconstitutional under the due process clause of the Founeeath Amendment 1
The DeLeon court concluded by holding that Texas's Ban was unconstitutional because it
violates tile plaindtrs• equal protection and due process rights under the Fourteenth Amendment
to the United States Constitution. Jd. at 666. The court then stayed its decision, which included
an injunction barriDg eoforcement of the Texas's BaD, pending the final disposition of an appeal
to the Fifth Cinruit Court of Appeals. Id.
D. Teua'a ... OD 88111HeX marriage is UDCODStitadoaaL
Based on the holding in DeLeo14 which is from the federal districl covering this
jurisdiction, as well as the holdings of the nwnerous other courts who have entertained
1 Tho /JeiMJn oourt went on to hold tblt Texas's tailure to re:cosnla same-sex l'llll'daps recognized in other
judldicdoaa Wll unconsdtutioaaL but because that dlscuasion is lnappllclble 1D this cue llld Cor the sake of brevity
tbfs 4lscauion lias be• excluded &om this response.
12
Exhibit Page 18 of 31
.... ,,,________, ___________
- -
Affidavit Exhibit: e.ails to and from Travis County Probate Court No. 1, imluding attachments
challenges to state laws banning same-sex marriage in the aftermath of Wind.ror, Texas's Baa is
unconstitutional. Assumin& that the Movants here will otfer tbe same tluee justifications for the
Ban that were discussed in DeLeon-l.e. tbat the Ban 1) increases the likelihood that a mother
and father will be in charge of childrearing; 2) encouraaes stable famUy environments for
responsible procrea1ion; and 3) is justified based on tradition-the failure of these reasons to
reach the level of a "rational basis" for the Ban is even more stark in this case than in DeLeon.
How could this Court•s recoanition of the marriage between Stella and Sonemaly, which
would allow Sonemaly to participate in all the benefits of a sunriving spouse, somehow aitect
anyone's decision regarding how to rear their children or procreate? The only effect of
recopition in this case would be to provide Sonemaly with the rights of an heir, somethiftg this
court does every day without paying regard to the sex of the decedent or the heir and without any
effect on anyone else's decision regardina how to rear their family. And as the DeLeon eowt
noted, tradition alone is no justification for Texas's Ban.
Failing to recognize the marriage between Stella and Sonemaly would only magnify the
same discriminatory and deleterious effects that Justice Kennedy wamed of in Windsor. Could
there be IDY more "visible and public', burden than, in your time of mourning for your deceased
spouse. having your spouse's family and the State of Texas fail to recognize your marriage and
fight to have it invalidated? Is there anything more clemeanifts or unequal than having the state in
wbich you and your spouse lived for years suggest that your otherwise valid maaiaae is
\Ulworthy of recognition simply because you are of the same sex? And although Stella and
Sonemaly never had children, imagine the effects of non-recognition on tbe surviving children of
a same-sex couple,. effects which would surely make it "even mon: difficult for the childieo. to
13
Exhibit Page 19 of 31
Affidavit Exbibit: ei'Mails to and from Travis County Probate Court No. 1, ii'MMuding attachments
uadentand the integdty and closeness of their own family and its concord with other famities in
the community and in their daily lives." Su Windsor. 133 S.Ct. at 2694.
Tbe Texu Ban is blatant discrimination that bas no rational relationship to any lesitimate
government interest. Its application in this case would not only be unconstitutional, it would be
cruel. This Court should follow the holdings of almost every other jurisdiction to hear a
challenge to state laws banning sarne«x Jlltii.Tiaee post-Windsor and hold that Texas's Ban is
UDCODStitutional and deny Movants' Special Bxceptions.
IV.
AJteraative Motioa for Contipgpse
In the altemative to denying Movants' Special Exceptions and holding Texas's Ban
\DICOnstitutional at this time, Sonemaly requests that the Court continue the hearing on this
matter uatil the Texas Attorney General can be given notice as required under Texas
GovatUDent Code§ 402.010. That section requires that "(i]n aa action in which a party to the
litigation tiles a...pleading challenging the constitutionality of a statute of this state ..• [t]he court
shall, if the attorney general is not a party to or counsel involved in the litigation, serve notice of
the c.oustitUtional cballqe and a copy of the... pleading" on the attorney general TEx. Gov'T
CoDe § 402.010(a). The statute further states tbat "[a] court may not enter a final judgment
holdiaa a statute ofthis state unconstitutional befoJe the 45th day after the date" of the notice. ld.
at (b). In a JeCCDt ease out of San .Antonio, wherein State District Judge Barbara Nellennoe held
that Texas's Bao is unconstitutional, the appellate court granted mandamus relief to the Attomey
0encra1 bcnuse of the eourt•s failure to provide notice of the amstitu1ional challenge. In re
StOle ojTBXIII, No.04-14-00212, 2014 WL 2443910 (rex. App.-8an Antonio May 28, 2014, DO
pet.) (melD. op., not designated for publication). Therefore, Sonemaly requests that the Court
14
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Exhibit Page 20 of 31
-
Affidavit Exbibit: e~ls to and from Travis County Probate Court No. 1, iAek.Jding attachments
postpODe 8ft)' decision on the CODStitutioDility of Texas's Same Sex Marriage Ban until the
notice ~d by the Oovemment Code is provided and the 45 day notice period has passed.
v.
Begapt fer Relief
Based on the forgoing, Sonemaly Pbrasavatb requesas an order from the Court finding
tbat Texas Family Code f§ 6.204(b) and 2.401 and Article 1, § 32 of the Texas Constitution are
um:oostitutional under the United States Constitution; denying Movants' Special Exeeptions and
Motion to Dismiss; in the alternative, continuing the hearing on Movants' Special Exceptions
and Motion to Dismiss until the notice period required by Toxaa Oovenunent Code § 402.010
bas paseed; 8Dd providing Sonemaly with all such fUrther reHef to which she sbows herself
entitled.
Respeetfidly submitted,
HOPPER~PLLC
By: ~~------
CRAIG HOPPBR.
State S. No. 00794947
BRIAN T. niOMPSON
State Bar No. 24051425
chgpper@hoppermikeska.com
bthpmmnn@hmmtmikeske com
400 W. 15111 Stteet. Suite 408
Austin, Texas 78701
(512) 615-6195 Telephone
(Sl2) 615-6194 Fax
ATTORNBYSPORCOUNrrER-APPUCANT
IS
Exhibit Page 21 of 31
Affidavit Exbibit: ei'Uflils to and from Travis County Probate Court No. 1, intiluding attachments
CIRTD1CATE or sgYJcE
I hereby certify tbat a tmc and correct copy of the foreaoing pleading bu been served on
the following COUDIIl of record on tbis 6th day ofNovember, 2014, in accordance with Rule 21a
of the Texas Rules of Civil Procedure, either electronically through an electronic tilina manager,
or non-e1ectnmically via band-delivery, e-mail, facsimile, or mail (fU'St class or certified):
Michael B.ICDisely
Jason s. Scott
Osborne, HelrnaD, Knebel, DeLeery, L.L.P.
301 Coogress Avenue, Suite 1910
Austin. Texas 78701
(512) 542-2011 (fax)
Lorin Hayes
Law Oftlces of Douglas A. Booth. P.C.
3801 S. Capital ofTexu Highway, Suite lSS
Austin, Texas 78704
(512) 478-4926 (fax)
BrianT. Thompson
=-
16
Exhibit Page 22 of 31
Affidavit Exbibit emails to and from Travis County Probate Court No. 1, including attachments
.-.
FRed: 11nl2014 9:44:38 AM
Dana DeBeawofr
Travis County Clert
C-1-PB-14.00'1885
Connie Arzola
I IN THE PROBATE COURT
I
I NUMIIKRI
•
I TRAVIS COUNTY, TIXAS
SoDemaJy Plll8lavatb rscm-ely"} hereby files this Supplemental Respoaae to the
Special Excepd0111 acl Motioa to Di8l1lisa filed by James PoM1I aad AUce Hu.man. and in
suppad ~ SGNIDIIy would abowthe Cowl the foltowmg:
Lilera11y Mutes betbnl Sollemaly filed ber Rapoase tD the Special Bxceptioas ai
Motiaa to Dllmlas tied by lama Powell aad Alice Huaan, which atvea an exhastive
compilation ot • aeponed, post-..,... cas to bave entertained a challertae to state laws
hanai!JI same ~aiDil'Jia&e, 1he Slxda Circuit ilacl its opiDioa in DeBoer"·.,... No. 14-
1241 (61h Clr•• November 6, 2014).1n DeBoer, the Sixlh Circuit, in a 2-1 decision, became the
fillt U.S. Chwit Court of Appeals to uphold state laJs on same sex mmiaae aad bucked the
clear tread of caurcs, illcllldiag fOur other U.S. Circuit Courts of AppeaJs, who have struck down
lUCia baa since JP'IIadlor. 1'helefcn. Sonemaly's atatemeat in her origiaal reapoase tbat "aiuce
.,..,_. ao .ckcuit court or appeals his upheld such a ban" is no km&er accurate aad Sonematy
files this tuppleaadal NepOJa to update the Court on this very JeCeat development
1
Exhibit Page 23 of 31
·-
Affidavit Exbibit: emails to and from Travis County Probate Court No. 1, including attachments
Christy Nisbett
From: Dower, Benjamin
Sent: Wednesday, November 12, 2014 5:15 PM
To: Christy Nisbett; const_claims
Subject: RE: Challenge to Constitutionality of a State Statute
Thanks again.
From: Christy Nisbett [mallto:Christy.Nisbett@traviscountvtx.govl
sent: Wednesday, November 12, 2014 5:14PM
Tal Dower, Benjamin; const..clalms
SUbject: RE: Challenge to COnstitutionality of a State Statute
The pleading is attached. I've also attached the first page of a supplemental response. The clerk's office scanned only
the first page, and the hard copy has not made it to the file. I'll forward the fun pleading as soon as we track it down.
Christy
---~---~------------------------
From: Dower, Benjamin [mailto:Bentamin.Dower@texasattomeygeneral.govl
5ent: Wednesday, November 12, 2014 4:54 PM
To: Christy Nisbett; const_clalms
SUbject: RE: Challenge to Constitutionality of a State Statute
Ms. Nisbett,
1acknowledge that the form has been received and that this email address was the appropriate place to send it. Thank
you!
Would you mine please also sending the pleading in which Sonemaly Phrasavath challenged the constitutionality of the
Texas Family Code to this same email address? I would really appreciate it.
Yours with gratitude,
Benjamin L. Dower
Assistant Attorney General
General Utigation Division
P.0. Box 12548, Capitol Station
Austin1 Texas 78711-2548
512.475.4078 (direct)
512.320.0667 (fax)
benjamin.dower@texasattorneygeneral.gov
AlTORNEVMCUENT PRIVILEGED: This is a confidential communication and intended for the addressee(s) only. Any
unauthorized interception or disclosure of this transmission is prohibited. lf you are not the intended recipient of this·
message, please notify the sender and destroy this and all copies of this communication. Thank you.
Exhibit Page 24 of 31
- ---
~········---·-··----·-·-----Affidavit Exhibit· emaj!s toaod..fr.olll..Iralds..count¥..2r.obate.cauct..r:w_..1,..a.uin~chw.ld=inLY
Sent: Thursday, November 13, 2014 10:13 AM
To: Christy Nisbett
Subject: RE: Challenge to Constitutionality of a State Statute
Much obliged.
From: Christy Nisbett lmailto:Christy.Nisbett@traviscountvtx.govl
Sent: Thursday, November 13, 2014 10:07 AM
To: Dower, Benjamin; const_claims
Subject: RE: Challenge to Constitutionality of a State Statute
Here is the complete supplemental response.
-~-·-····------------
From: Dower, Benjamin [mallto:Beniamin.power®texasattorneygeneral.goy]
Sent: Wednesday, November 12, 2014 5:15PM
To: Christy Nisbett; const_claims
SUbject: RE: Challenge to Constitutionality of a State Statute
Thanks again.
···-· -··· --------·····--··----·~--
From: Christy Nisbett (mailto:Christy.Nisbett@traviscountytx.gov]
Sent: Wednesday, November 12, 2014 5:14PM
To: Dower, Benjamin; const_daims
Subject: RE: Challenge to Constitutionality of a State statute ·
The pleading is attached. live also attached the first page of a supplemental response. The clerk's office scanned only
the first page, and the hard copy has not made it to the file. I'll forward the full pleading as soon as we track it down.
Christy
From: Dower, Benjamin [mailto:Benlamin.Dower®texasattorneygene@l.gov]
Sent Wednesday, November 12,2014 4:54PM
To: Christy Nisbett; const_clalms
SUbject; RE: Challenge to Constitutionality of a State Statute
Ms. Nisbett,
1acknowledge that the form has been received and that this email address was the appropriate place to send it. Thank
you!
Would you mine please also sending the pleading in which Sonemaly Phrasavath challenged the constitutionality of the
Texas Family Code to this same email address? l would really appreciate it.
Yours with gratitude,
Exhibit Page 30 of 31
--· .~ ...
Affidavit Exbibit: emails to and from Travis County Probate Court No. 1, including attachments
Benjamin L. Dower
Assistant Attorney General
General litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
512.475.4078 (direct)
512.320.0667 {fax)
benjamin.dower@texasattorneygeneral.gov
AlTORNEV-CLIENT PRIVfLEGED: This is a confidential communication and Intended for the addressee{s) only. Any
unauthorized interception or disclosure of this transmission is prohibited. If you are not the intended recipient of this
message, ptease notify the sender and destroy this and all copies of this communication. Thank you.
- -· ··-·· . ---...------·-·-·-----···-· -----"~ •... ··-·· -· ·------·----- -··- ·---------
From: Christy Nisbett fmallto;Christy.Nisbett@traviscountytx.gov]
Sent: Wednesday, November 12, 2014 4:48PM
To: const_daims
SUbject: Challenge to Constitutionality of a State Statute
Please see the attached, which was filed in Travis County Probate Court No. 1.
We would appreciate your confirming that you received this attachment and that we have sent this attachment to the
appropriate place.
Thanks,
Christy Nisbett
Probate Court Administrator I Staff Attorney
Travis County Probate Court No. 1
1000 Guadalupe Street, Room 217
Austin, TX 78701
Phone: (512) 854-9559
Fax: (512)854-4418
Pletlse note the county recently changed its email domain IJflme. My new email address Is
dJrlsfV.nlsbett@traviscountvtx.gov..
Exhibit Page 31 of 31
--
Filed: 2/25/2015 5:42:42 PM
Dana DeBeauvoir
Travis County Clerk
No. C~l-PB~14-00l695 C-1-PB-14-001695
Abram Gonzalez
"ESTATE OF § IN THE PROBATE COURT
§
STELLA 1\'IARlE POWELL, § NU!\1BER l
§
DECE.ASED § TRAVIS COUNTY, TEXAS
NOTICE OF FINAL HEARING
Please take notice that the Final Hearing in the above styled and numbered cause is set to
be heard on July 6-7, 2015 beginning at 9:00 a.nt., at the Travis County Courthouse, 1000
Guadalupe, 2nd Floor Room217, Austin, Texas.
Respectfully submitted,
HOPPER M'l~, PLLC
By: A0~-
CRAIG HOPPER
State Bar No. 0079494 7
BRIANT. THOM.PSON
State Bar No. 24051425
chopper@Jloppennikeska.com
bthompson(ivhoppcrmikeska.com
400 W. 15th Street, Suite 408
Austin. Texas 78701
(512) 615-6195 Telephone
(512) 615-6194 Fax
ATTORNEYS FOR SONEMALY PHRASA VA TH
~~~~J!3QIIIll Ill~ IIIII1111 /liB 111111.1111
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ()f the foregoing pleading has been served on
the following counsel of record on this 25th day of February, 2015, in accordance with Rule 2la
of the Texas Rules of Civil Procedure, either electronically through an electronic tiling manager~
or non-electronically via hand-delivery, e-mail, facsimile, or mail (first class or certified):
-
Michael B. Knisely Michael P. Murphy
Jason S. Scott Assistant Solicitor General
Osbon1e, Helman, Knebel~ DeLeery, L.L.P. Oftice of the Attorney General
301 Congress Avenue., Suite 1910 P.O. Box 12548 (MC 059)
Austin, Texas 78701 Austin~ Texas 78711-2548
(512) 542-2011 (fax) (512) 474-2697
Douglas A. Booth John Crane
--
Law Offices of Douglas A. Booth, P.C. Law Offices of John a. Crane PLLC
3801 S. Capital of Texas Highway, Suite 255 4425 South Mopac Expressway #204
Austin, Texas 78704 Austin, Texas 78735
(512) 478-4926 (fax) (877) 469-9439
Brian T. Thompson
2
Tab I
Filed: 2/18/2015 12:15:38 AM
Dana DeBeauvoir
Travis County Clerk
NO. C-1-PB-14-001695 C~ 1-PB-14-001695
Abram Gonzalez
ESTATE OF § IN THE PROBATE COURT
§
STELLA MARIE POWELL, § NUMBER 1
§
DECEASED § TRAVIS COUNTY, TEXAS
PLEA IN INTERVENTION
OF THE STATE OF TEXAS
Pursuant to Rule 60 of the Texas Rules of Civil Procedure, the State of
Texas hereby intervenes in this case to defend the validity of Texas law.
I. The Order on Special Exceptions and Motion to Dismiss
Challenges the Validity of a Texas Constitutional provision and
a Texas Statute.
By this Courfs Order of February 17, 2015, denying the Special
Exceptions concerning the probate proceedings and relationship between the
Deceased and Sonemaly Phrasavath, this Court placed into issue the
provisions of article I, section 32 of the Texas Constitution and section 6.204(b)
of the Texas Family Code and section 2.401 of the Texas Family Code and
found them to be unconstitutional in violation of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United
States Constitution.
II. Standard for Intervention
Rule of Civil Procedure 60 provides that "[a]ny party may intervene by
filing a pleading, subject to being stricken out by the court for sufficient cause
on the motion of any party.'' TEX. R. Crv. P. 60. No rule establishes a deadline
for intervention. Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008).
State's Plea in Intervention
IV. Conclusion and prayer for relief.
The State of Texas by this intervention requests notice and appearance,
and the opportunity to defend its laws before this Court.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
ANGELA V. COLMENERO
Chief, General Litigation Division
MICHAEL P. MURPHY
Assistant Solicitor General
State Bar No. 24051097
Is/ William T. Deane
WILLIAM T. DEANE
Texas Bar No. 05692500
Assistant Attorney General
General Litigation Division
P .0. Box 12548, Capitol Station
Austin, Texas 78711·2548
(512) 936-1534
FAX: (512) 320-0667
ATTORNEYS FOR INTERVENOR
State's Plea in Intervention
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading
has been served on the following counsel of record on this 17th day of February,
2015, in accordance with Rule 21a of the Texas Rules of Civil Procedure,
electronically through the electronic filing manager:
Craig Hopper
Brian T. Thompson
Hopper Mikeska
400 W. 15th Street, Suite 408
Austin, Texas 78701
Michael B. Knisely
Jason S. Scott
Osborne, Helman, Knebel, DeLeery
301 Congress Avenue, Suite 1910
Austin, Texas 78701
Lorin Hayes
Law Offices of Douglas A. Booth
3801 S. Capital of Texas Highway, Suite 255
Austin, Texas 78704
Is/ William T. Deane
William T. Deane
Assistant Attorney General
State,s Plea in Intervention
in Re State of Texas
Combined Opinion