Showing posts with label thomas araguz. Show all posts
Showing posts with label thomas araguz. Show all posts

Sunday, September 5, 2010

Honoring Thomas Araguz III, his labor, and his wife Nikki Araguz

editorial commentary

The assistant managing editor at the Fort Bend Herald newspaper, in Rosenberg, TX, John Merculief, has published an editorial that purports to be concerned about honoring the memory of Thomas Araguz III, who he describes as the person at the center of the lawsuit against Nikki Araguz. However, John Merculief appears to be just another foot soldier in the Texas yellow journalism brigade, a latrine brigade that doesn't seem to know when to stop shoveling shinola at the sensibilities of its primarily Texan readers. Merculief's editorial, which is replete with the same heaping dish of diatribe the Texas media has employed in myriad ways since a couple weeks after Thomas Araguz's death, dishonors Thomas and disrespects the memory of the work he did. Merculief's editorial also represents yet another continuation of the media's verbal assault against Nikki Araguz, the woman Thomas Araguz loved, chose to love, chose to live with, and married.

John Merculief
John Merculief's article fails to recognize that the people who have dishonored and disrespected Thomas Araguz III most are Heather Delgado, the ex-wife he divorced, and his own mother, Simona Longoria. Their greedy fool's errand lawsuit won't actually net Thomas's sons Trevor and Tyler any more money than if those two women had never filed their lawsuit, because any gain they may reap from it for the boys, will surely be taken right back by the attorneys who represent them, to pay attorney's fees and expenses. What Heather Delgado and Simonia Longoria's lawsuit does however, is wage an all out assault on Thomas Araguz's all important desire and choice to love Nikki Araguz, to live with Nikki Araguz, to marry Nikki Araguz, to share a house and home with Nikki Araguz, to share child rearing duties with Nikki Araguz, to share his hobbies and interests with Nikki Araguz and the boys they cared for throughout the three short years of their lives together, before his life and their life together was prematurely ripped away from them by Thomas's unexpected death. Heather Delgado and Simona Longoria's lawsuit also disrespects Thomas Araguz and his sons Trevor and Tyler, by subjecting Trevor and Tyler, to forever live with the memory of how they, and the Texas media, have disrespected his love for Nikki Araguz, and by extension the boys as well. If Heather Delgado and Simonia Longoria truly had respect for and honored Thomas Araguz, and for his two sons, it seems like the public should wonder why they didn't leave well enough alone, so that the memory of Thomas Araguz III, life long public servant and fallen firefighter, would live on in perpetuity, unfettered by what has actually occurred since his death.

Without Heather Delgado and Simonia Longoria's lawsuit, Thomas Araguz's two boys would have the same $300,000 that was coming to them anyway, without the need for a court of law to issue an order allowing distribution of it to them, and without having to take attorney's fees out of it beforehand. By Texas statute, Thomas's two boys will also be able to attend the Texas public university of their choice tuition free, something never at issue in the lawsuit Heather Delgado and Simonia Longoria have instigated. It is entirely specious, if not downright fallacious, for John Merculief to state in his editorial that:
(Heather Delgado and Simonia Longoria have) filed suit to have his marriage voided and ensure his children get his death benefits.

http://www.fbherald.com/opinion/article_2754c970-b7b1-11df-a848-001cc4c03286.html
when in fact, his children were ensured of receiving his death benefits anyway, which their lawsuit only delayed and diluted with attorney's fees, while it also creates an unwarranted cloud of vitriol over the life of the woman Thomas Araguz loved and married, Nikki Araguz. 

The editorial John Merculief has published also begins with mention of Chad Ellis, one of three attorneys whose legal representation of Simonia Longoria, is little more than a greedy $300,000 money grab for themselves, unless it is also bigoted vindictiveness toward Nikki Araguz with whom Heather Delgado and Simonia Longoria had previously been familial. Surely, the three less than honorable attorneys, Edward Burwell, Frank E. Mann III, and Chad Ellis, knew full well when they convinced Heather Delgado and Simonia Longoria to file their probate lawsuit against Nikki Araguz, that nothing would be gained financially by those two women, or the boys who cannot represent themselves as the actual parties to the lawsuit because they are minors, except the lining of three attorneys' pockets with half the proceeds. No matter what the outcome, all that Chad Ellis, Edward Burwell, and Frank Mann, will have accomplished is the pointless judicial institutionalization of their dishonor and lack of respect for Thomas Araguz, for Nikki Araguz the woman he lived, and for their two boys Trevor and Tyler. It seems noteworthy that both Edward Burwell and Frank Mann have been sanctioned previously by the Texas State Bar Association for breach of ethics rules. Frank Mann's license to practice law has even been suspended on two occasions, for years at a time, and he is currently under investigation again for his unethical and potentially illegal activities.

Meanwhile, John Merculief's editorial references Chad Ellis's use of the nickname "Tommy" which also disrespects Thomas Araguz, because that was a nickname he disliked and told people to never use. The people who knew, loved, honored, and respected, Thomas Araguz, know that he preferred to be called Thomas. Although Merculief's editorial goes on to quote Chad Ellis who claims that:
"We chose to do this, after visiting with the family, because Tommy's not here to lend a voice to the story," (Chad Ellis) said. "The family has come forward to tell the things they know should be said."
The facts are that Thomas Araguz spoke loudly through his actions during his life, and before his death, about his intentions and about what he honored. Thomas Araguz loved, married, and honored Nikki Araguz, even if by some chance the Texas state judiciary ends up refusing to recognize and honor his wish and intentions at some future juncture. Thomas Araguz also divorced Heather Delgado, communicating to the world his rejection and repudiation of her. The undisputed fact is that Thomas Araguz also named Nikki Araguz the beneficiary of his life insurance / pension plan policy proceeds. Yet Merculief's editorial fails to mention that judge Randy Clapp, who presides over the probate case at the Wharton County District Court, has released that $60,000.00 benefit to Nikki Araguz, in recognition of Thomas Araguz's wishes. These are all indications that Thomas Araguz would be horrified by the ways in which he and his wife Nikki are being dishonored by Heather Delgado, and by his very own mother Simona Longoria, who together with Heather Delgado and Thomas's sister Raquel Araguz have publicly expressed their vindictive vitriol toward Nikki Araguz, all of which disrespects and dishonors the choices Thomas Araguz made during his lifetime. One person who has remained publicly absent and silent since Thomas Araguz's death is his brother Phillip Araguz, a gay man whose silence may indicate his disapproval of his mother's actions. The voices that Simona Longoria and Heather Delgado have lent to the story that is Thomas Araguz's epitaph, have been characterized primarily by dishonorable and defamatory epithets hurled by them at Nikki Araguz.

Thomas and Nikki Araguz
Thomas Araguz was an honorable man, who from the time he reached the age of majority, chose to devote his life to protecting the community where he was born and raised. For over ten of his short thirty years, Thomas Araguz had trained and served as a firefighter in Wharton, TX, reaching the rank of Captain, where the firefighters serve their community without salary, but with the promise from the community and the state of Texas that their efforts would be recognized and honored in other ways, including retirement benefits. After Thomas Araguz met Nikki Purdue at church, fell in love with her, lived with her, and married her, it was Nikki Araguz whose loving income enabled Thomas to honorably attend Wharton Community College to study for his associate's degree and Firefighter's certificate, with the hope that he might get a paying job as a firefighter and emergency medical technician in a city large enough to provide a salary. It was Nikki Araguz who honored her husband by using her income to be certain Thomas's child support payments were paid to the ex-wife Thomas divorced. It was Nikki Araguz who honored her husband Thomas Araguz, as stepmother to their two boys, together devoting their four days a week with them, to ensure their well being, education, and quality of life. It was Nikki Araguz who honored her husband, and was honored with an award from the Wharton Fire Department just months before Thomas's death, for her tireless fund raising efforts on behalf of his work. Thomas Araguz was an honorable man who deserves to have the love he shared with Nikki Araguz through marriage; honored, respected, and kept legally intact.

Heather Delgado and Simonia Longoria could honor the memory of Thomas Araguz most, by dismissing their foolhardy and pointlessly greedy lawsuit against Nikki Araguz. To do so would honor the love Thomas Araguz shared with, and gave to, Nikki Araguz. Dismissing the lawsuit would honor and respect Thomas's two sons, his sons' privacy, his sons' dignity, and their ability to honorably remember the father who clearly loved them deeply as well. If the three attorneys who represent Heather Delgado and Simona Longoria were truly interested in honoring and respecting Thomas Araguz, surely they would change their minds and persuade their clients to rethink what they have done, and the harm their shameful lawsuit has heaped on the memory and honor of Thomas Araguz, on Nikki Araguz, on Trevor Araguz, and on Tyler Araguz. That would be a fitting gesture for a Labor Day weekend that ought to honor the way Thomas Araguz labored hard, without monetary remuneration, with such devotion to his community of Wharton, TX that he gave his life doing so.

Saturday, September 4, 2010

Nikki Araguz - Possible Methods for Avoiding a Legal Battle Like Hers

While it may not be entirely possible for transsexual and intersex people to prevent or avoid the sort of legal calamity that currently consumes Nikki Araguz's life, there are steps that people can take that may help. What follows are descriptions of some of the various ways in which transsexual and intersex people may be able to protect themselves from the sort of real life legal and media onslaught that Nikki Araguz currently faces. The topics covered include: identity documents, estate planning, jurisdictional choices, and other defensive legal protections.

Transsexual and intersex people live in a world of legal uncertainty with regard to: legal sex status recognition, ability to marry, access to healthcare, rights to privacy, and so on. However, legal counseling during the medical treatment process for transsexual and intersex people appears to be one of the glaring omissions within such treatment protocols. Such omissions may account for the many instances of transsexual and intersex people finding themselves in situations without having made appropriate legal preparations. It seems like every transsexual and intersex person receiving medical treatment and counseling for their conditions should have some legal counseling included as part of the process. Sadly, that doesn't seem to be a priority for such professionals, all too often with embarrassing or even catastrophic results.

There are multiple areas of legal protections that are important, such as:
  • Transsexual and intersex people need to get all their identity documentation in order. The gold standard among these documents is a birth certificate with the correct name and sex designation on it. With an appropriate birth certificate, it is usually possible to persuade relevant governmental agencies to change a person's other identity records.
  • Every transsexual or intersex person needs to have estate documents, even if they own little or nothing. Estate documents such as a will, or a will and trust combination, are essential, no matter how young someone is.
  • Legal documents for medical care are also essential, including wishes regarding treatment when not consciously able to make one's own decisions, wishes regarding resuscitation, organ donation, blood transfusion, specifically naming hospital visitors, and so on.
  • Making strategic choices about where to live is also essential for transsexual and intersex people. Residential location within the U.S. determines legal jurisdiction, which can determine the difference between avoiding legal problems and experiencing the sort of legal nightmare that faces Nikki Araguz.

Choice of Residence

It seems worthwhile to address choice of residence first, since doing so can help avoid many of the legal problems that unfavorable jurisdictions create for transsexual and intersex people. For example, if the circumstances of Nikki and Thomas Araguz 's lives and marriage had enabled them to move to a more favorable U.S. state, Nikki could probably have avoided the lawsuit currently filed against her. People in the U.S. generally have few if any restrictions when it comes to choosing where they live. However, making strategic choices about where to live appears to be a huge psychological hurdle for many people, including transsexual and intersex people. Self help discussion web sites for transsexual and intersex people frequently contain discussions in which one person recommends that another person change their geographic residence, but they are often met with resistance.  Moving may be stressful to do at the outset, but the results for transsexual and intersex people could make all the difference when it comes to avoiding the problems created for transsexual and intersex people merely by living in certain jurisdictions.

For example, if Nikki and Thomas Araguz had moved to a state like Massachusetts after their marriage, they could probably have avoided the entire ordeal that Nikki Araguz currently faces. However, Nikki and Thomas Araguz had at least one very legitimate obstacle that would have made relocation a difficult choice. The problem is that the divorce decree between Thomas Araguz and Heather Delgado, his ex-wife, probably required Thomas Araguz to remain in Texas in order to maintain custody of his children. For Nikki and Thomas Araguz, separation from their children was probably a deal breaker with regard to relocation. Instead, they chose the many legal risks associated with remaining in Texas, legal risks that now haunt Nikki Araguz, the memory of Thomas Araguz, and their marriage.

For transsexual and intersex people who want to plan and structure their lives to avoid the sort of lawsuit Nikki Araguz faces, Texas is among a long list of U.S. states where transsexual and intersex people simply cannot reside, at least not until such states change their laws. States whose appeals courts have invalidated the post-genital-reconstruction-surgery legal sex status of transsexual and intersex people, and usually their marriages too, include: Ohio, Texas, Kansas, Florida, and others (2). At present, Connecticut and Massachusetts are the only states which have universal marriage equality and which issue such marriage licenses (3). Three other states, Vermont, New Hampshire, and Iowa recognize all marriages, but some ambiguity exists about whether those states will issue marriage licenses to all couples. Consequently, only the five foregoing states (3) are states where married couples that include one or more transsexual or intersex people, are likely to be able to avoid potential battles over the legality of their marriages, based on state law. Recognition by the federal government, with regard to income taxes, social security benefits, and other federal benefits that require marriage, is another matter. Given the dozens of possible configurations of people among married couples with one or more transsexual and/or intersex partners, there isn't much settled law about what the federal government and its agencies recognize. However, many such married couples seem to function unnoticed by the federal government, but are at serious risk of threat to their benefits if their marriage relationships were closely scrutinized by it.


Estate Planning Documents - A Will or Will and Trust

Even if living in one of the five legally safer U.S. states for married transsexual and intersex couples, all such couples should have appropriate estate documents drafted and executed. While a will is one component of essential estate planning documentation, the modern strategy is to create a will and a living trust. Among the major advantages of a trust is that in most states it enables the decedent's heirs to avoid probate court and to avoid delays in property and asset distribution. It is possible to research many of the details of wills and trusts online, to save money and time before getting the assistance of an estate planning attorney to create and execute finalized documents. Only a knowledgeable estate planning consumer can determine whether or not such final documents, created and reviewed by an attorney, actually communicate their wishes accurately. Online estate planning web sites are filled with discussions about the details of poorly drafted wills and trusts, and about how to improve them for greater clarity, to more explicitly and better document a person's wishes.

Another important consideration is that some aspects of estate planning require a trust, while others require a will. For example, for someone with pets who wants to set aside money for their care, that can only be done through a trust, not with a will, because a pet cannot be the recipient of a bequest in a will. A trust and its successor trustee can also do things like maintain web sites setup by its grantor/settlor during his or her lifetime, so that they can be maintained after death, although not in perpetuity. Additional arrangements are needed to create an ongoing entity to carry on such efforts after death in perpetuity, but that is something an experienced estate attorney can setup as well, which usually involves creating a legal entity called a foundation that is managed by the trust and successors of the trust. Conversely, a will is necessary to make designations for arrangements like treatment of a decedent's remains, whether cremation or burial, including details such as location of burial or disposition of ashes after cremation; whether or not a person agrees to organ donation, including restrictions on which organs; and other similar personal preferences.

It can be worthwhile to first read about these topics online (6), and to create an outline of one's wishes before approaching an attorney to draft final documents. Before creating a trust it can also be useful to read and become familiar with the Uniform Trust Code (4), which is now standard in twenty-two states, and to read some model trust documents to become familiar with their structure and contents. The parties to a trust are: the settlor/grantor (the person who creates the trust); the trustee(s), and successor trustee(s); and the beneficiaries. With a living trust (5), the creator of the trust (the settlor) is also its first trustee, until her or she dies, and may be a beneficiary as well. After the settlor/grantor's death, the person or people in control of the trust are the successor trustee(s), and the people who receive property from the trust are its beneficiaries. Sometimes a successor trustee is also a beneficiary.

Most of the text in a trust document is standard language that addresses a vast array of circumstances that can arise after death and includes provisions that give the trustee those powers over the trust, and by extention the decedent's estate. It is important that a trust document be complete and extensive because under trust law in most states, rights and powers not explicitly provided the trustee are not available to the trustee. Once past all the standard language, the core components of a trust may appear similar to a will, with some exceptions. For example, a trust can include provisions that distribute assets or property in installments, and under the supervision of the trustee. For example, a trust might provide that a trustee distribute educational and living expenses to a child beneficiary during childhood, and require the child beneficiary to wait until some specified age before receiving the remainder of the trust property, something a Will usually cannot specify.

There are numerous details involved in a trust that a qualified and experienced attorney can make certain are addressed. However, it is very important to learn everything possible about wills and trusts, since many a beneficiary has discovered only too late that language describing property left to them is unclear, ambiguous, and open to multiple interpretations. Consequently, it may be worth the effort to study the law and language of wills and trusts and make certain that such estate documents express one's wishes. The more straightforward, yet appropriately detailed, the core of the property and asset distribution language is, the less likely it is to create disputes when it becomes active after the settlor's death. For example, trusts and wills need to consider what happens if a beneficiary dies before the settlor, and must consider what happens when their are multiple beneficiaries, but one or more dies, or even if all beneficiaries have died before, or simultaneously with the settlor. For example, if an entire family dies in a car accident or plane crash, the wills and trusts of the family members need to consider who should receive the assets if all the family members are already deceased. To account for such conditions, the property distribution terms of wills and trusts are usually structured in sequences, with a primary beneficiary, one or more secondary/contingency beneficiaries, and a tertiary beneficiary if none of the named people can benefit. A tertiary beneficiary is usually a charity, institution, non-profit organization, or university.

It is also important to avoid a huge mistake people often make who have trusts created. They make the mistake of not funding their trust. It is essential to make provisions that transfer a person's assets into the trust, which is called funding. For example, once most people retire, they often have the title to their home changed to be owned by their living trust. It is sometimes possible to do the same thing with vehicles, which are also titled property. Personal property can be transferred into the trust using a simple document called an assignment, which can be written to automatically invoke upon a person's death. In addition bank accounts can be written with a joint tenancy where one of the parties is the trust. These techniques for property transfer to a trust vary from state to state, and should be executed with the help of an experienced estate attorney.

For transsexual or intersex people, the language in estate documents should also explicitly and carefully state that its distribution wishes should be deemed valid regardless of whether or not any married couple involved is considered legally married by the jurisdiction whose law governs the estate documents. However, only an attorney who specializes in wills, trusts, and estate law, can provide definitive legal advice about the specifics of such will and trust language details. It is also important that all estate planning documents be carefully executed, witnessed and notarized, and that the signatures of all parties and witnesses should be notarized separately and individually on the documents. In addition, all the estate planning documents should be numbered with 1. of x page numbering and each page should contain a blank for the grantor/settlor's initials, and such initials should appear on every page of every document to help prevent fraudulent changes afterward.

Every transsexual or intersex person should get a will or will and trust combination drafted and executed as soon as possible, to help avoid disputes after death like some of those faced by Nikki Araguz. However, it should be noted that even if Thomas Araguz had created a will and living trust, those instruments would not have prevented the lawsuit filed against Nikki Araguz by Heather Delgado. This is because wills and trusts are called testamentary documents, in which the decedent "testifies" as to their wishes. The large sums of money at issue in the lawsuit against Nikki Araguz are granted to the legal spouse of the deceased firefighter without any opportunity for the firefighter to explicitly designate a beneficiary or declare them as a testamentary bequest. In other words, such firefighter death benefits are not covered by wills or trusts, nor are they instruments like life insurance or pension policy documents in which someone is designated a beneficiary in writing by the policy holder. In fact, on the life insurance/ pension policy Thomas Araguz had as a firefighter, he designated Nikki Araguz its beneficiary. After some initial wrangling, Nikki Araguz has already received those funds, about $60,000.00, minus attorneys fees. However, if Thomas Araguz had drafted and executed a will, he could have avoided disputes about how the couple's personal property and other shared effects were to be distributed. Currently, there is some chance that Nikki Araguz may be stripped of much of the personal property she shared with her late husband, because the court named Simona Longoria, Thomas Araguz's biological mother, the administrator of his estate, and she has an adversarial attitude toward Nikki. That is a mishap Nikki and Thomas Araguz could have avoided with a carefully prepared Will or Will and Trust.


Health Care Directives and Power of Attorney

Another category of legal documents that is important for all transsexual and intersex people to have are healthcare management documents. All too often a transsexual or intersex person becomes incapacitated, only to discovery during and/or after their recovery, that hostile biological family members have taken over their lives and made decisions about their care and their lives they don't agree with. Such actions often include forbidding people the incapacitated person cares about them from visiting them. The laws about healthcare power of attorney and healthcare living will documents vary among U.S. states. Consequently, an attorney should be consulted before finalizing and executing such documents, and such documents should be reviewed by a local attorney when changing residence from one state to another. Time and money can be saved by researching these types of legal documents online and creating one's own draft to be reviewed by an attorney, rather than paying an attorney for the time required for detailed consultation and drafting them from scratch.

A healthcare power of attorney, designates someone the creator trusts, to make decisions about the creator's healthcare under certain circumstances when the creator is unable. The healthcare power of attorney can also dictate the protocol that must be employed to invoke it. The circumstances that usually cause such a power of attorney to be invoked include its creator: becoming unconscious, being unable to communicate, being in a persistent vegetative state, having been declared legally incompetent (as a consequent of brain damage due to illness or accident, such a Alzheimer's disease, severe stroke, or a severe head injury), or becoming otherwise totally incapacitated. While such circumstances may be uncomfortable to contemplate, by designating a trusted person beforehand, and by a creating power of attorney document that describes one's wishes both in detail and with flexibility, it is usually possible to avoid having a default person, which could even be an adversarial biological family member, or a person who may have differing beliefs, make such decisions.

A healthcare power of attorney can describe how the person with the power of attorney should handle any number of medication decisions, and well as the circumstances during which the designated person has such powers. Such decisions can include when and how to handle:
  • nutrition methods, including feeding tubes;
  • pain management, types of pain medication;
  • kidney dialysis;
  • whether or not to accept a transplanted organ;
  • management of medical life support systems;
  • whether or not to receive blood transfusions; and
  • numerous others.
The reference links below include cursory example healthcare power of attorney documents that may be worth perusing. It is possible to make a such document far more detailed and inclusive than the ones in the examples. Such documents, like estate documents, need to be drafted in contemplation of how to handle numerous potentially unexpected and unanticipated medical circumstances.

A Living Will, or Advance Healthcare Directive, is a second document which has some overlap with a Healthcare Power of Attorney. The primary function the power of attorney is to designate a person to make decisions on one's behalf. The intent and purpose of a healthcare living will is to describe in detail what actions shall be taken, and what actions may not be taken, under any of numerous circumstances that can occur when the creator of the Living Will is unable to make decisions. A Living Will is different and separate from a Will and from a Revocable Living Trust because a Will and Revocable Living Trust deal with finances and property, while a Living Will handles healthcare decisions when its creator is unable to make them otherwise.

Like all estate planning and similar legal documents, it is essential that each signature for each person who is a party to the document and who signs the document, either as a party or as a witness, is notarized individually. Some states have statutory requirements for Living Wills and Healthcare Powers of Attorney, which in some circumstances may even include filing the document with a court of law. Only a review by a competent attorney can help prevent problems from occurring at the very moment when such problems become nightmarish.


Identification - Driver's License, Birth Certificate, Passport, Social Security Card

Last in this list, but probably first in order of chronological concern for transsexual and intersex people, is procurement of appropriate identity documents. Transsexual and intersex people need to be proactive about making sure that as much of their identity documentation as possible is in order. This includes obtaining:  a driver's license, a birth certificate, a social security card and underlying documentation at the social security administration, a passport, high school and college transcripts, changing records maintained by credit reporting agencies, and so on, all to the appropriate name and sex designation.

A birth certificate with the proper name and sex designation can function like a master key that makes all the other identity document changes relatively easy procure. However, only two U.S. states, Illinois and Michigan, have actual statutes which provide for such changes. Most states have instituted administrative procedures for changing birth certificates, but often such administrative procedures have little if any actual force of law. In fact, justice Phil Hardberger, who wrote the Littleton v. Prange ruling in Texas, explicitly stated in his ruling that the modified birth certificate Christie Lee Littleton received from the state of Texas was purely "ministerial", and that it did not represent any legality with regard to her legal sex status or her ability to marry in Texas.

Throughout states other than Illinois and Michigan, the process required to change a birth certificates, and the results of the process varying remarkably. Since none of them are supported by statute, any of them could be declared void by a state court of law, as has occurred already in Ohio, Texas, Kansas, and Florida (2). In addition, many states, such as Alabama, Alaska, Connecticut, Florida, Mississippi, and West Virginia,  do not provide a "clean" new birth certificate, but instead provide a document that outs the transsexual person by placing information on the birth certificate indicating that the sex designation has been changed, leaving the transsexual or intersex person with a document that serves as the modern equivalent of a legal scarlet letter. On the documents provided by some states, such as Mississippi, the name change and sex designation change are mere footnotes in small print at the bottom of the document, while the holder's previous name and previous sex designation remain above in larger text. In addition, some states that will change birth certificates do not seal the previous birth certificate to prevent future access to it. Worse yet, there are states which refuse to provide changed birth certificates at all, such as Ohio, Idaho, and Tennessee.

It can take months if not years to complete the entire process of obtaining a complete set of modified identity documents with the appropriate name and sex designation information on them. Most often, the procurement of the essential ones, such as a birth certificate, require a notarized affidavit from the surgeon who performed the surgery. For example, the birth certificate change statute in Illinois is so draconian it requires that the surgery be performed by a U.S. surgeon and that the affidavit be executed and notarized in a U.S. state. The Canadian vaginoplasty surgeon Pierre Brassard, MD has gone to the trouble of becoming licensed to practice medicine in Michigan, so that he can create Michigan based affidavits for patients born in Illinois who have surgery performed by him in Montreal, Canada. Although transsexual and intersex people can usually choose where to live, none have chosen where they were born, and many people have been saddled with the terrible misfortune of having been born in a state that will not issue them a new birth certificate. Two good resources for information about changing birth certifcates and obtaining a legal name change, is the web site created by Andrea James, called tsroadmap.com, and the web site of Becky Allison, MD.

Even once most other documentation changes have been made, many transsexual people report nightmarish difficulties getting the credit reporting agencies, and companies that have issued credit cards, to make the appropriate changes in their records and reports. Even after making the changes, transsexual and intersex people have discovered that it is a good idea to double check that the agencies have actually performed the tasks as promised. This can be done by having a trusted friend pretext the agencies as a potential employer, to obtain identity information confirmations, to determine if the information has actually been changed. All too often, unchanged information is reported by the agencies to third parties even after they have assured the subject that the information has been changed. In other words, do not trust, and always verify. It only takes one discrepancy when a prospective employer performs a background check or pre-employment credit check, to raise questions that involve complex answers.


Non-Disclosure Agreements

Given all the foregoing, transsexual people also need to make careful decisions about when to disclose one's transsexual and/or intersex status, to whom, and under what conditions. There are numerous situations in which transsexual and intersex people may want to consider requiring people they interact with to sign a non-disclosure agreement (NDA) with them regarding their medical history, including information about their transsexual and/or intersex condition. A non-disclosure agreement requires the second party to the agreement to keep information designated in the agreement confidential. Such an agreement enables the holder to sue the person violating the agreement for: breach of contract, invasion of privacy, to obtain a restraining order and later permanent injunction against further or additional disclosure, and potentially other forms of legal recourse.


Political and Legislative Activism

Last, it seems like one of the things transsexual and intersex people who are interested in political activism may want to focus on, is lobbying state legislatures for the creation of statutes in U.S. states that:
  • provide explicit legal sex status for transsexual and intersex people after genital reconstruction surgery; 
  • explicitly describe the legal marriage rights of transsexual and intersex people before and after genital reconstruction surgery; 
  • provide for sealing of court name change petitions,  birth certificate proceedings and related government records that are changed because of a person's transsexual or intersex condition. 
If Texas had a statute that provided sealed name change petitions for transsexual and intersex people, Nikki Araguz may have been spared the public humiliation of having the contents of her 1996 name change petition distributed to the entire world via the internet, notwithstanding the invasions of privacy committed against her by Frank Mann III. Currently, not a single U.S. state has explicit or detailed statutes which describe the legal sex identity status of transsexual and intersex people, that define related marriage rights, or which have legal definitions of male and female in its statutes. Even in Michigan, its birth certificate change statute is really just a single phrase in a single line, of its statute regarding procurement of birth certificates and making modifications to them (8). Not until, transsexual and intersex people are given explicit legal recognition by state and federal governments, will there by any hope that legal assaults like the one being rapaciously inflicted on Nikki Araguz, or upon Christie Littleton, Michael Kantaras, and others before her, will come to an end.


Conclusions

Although many people who have written articles in web-logs, or comments on social networking sites, have wondered if Nikki Araguz could have avoided her current legal battle, the steps she would have needed to take, may have been untenable in her situation. Even if Thomas Araguz III had a Will, a Revocable Living Trust, a Healthcare Power of Attorney, and a Living Will, none of those legal documents would have prevented the core of Nikki's current probate court battle from being initiated by Healther Delgado and Simona Longoria, because the money in question is a rare form of financial benefit sometimes given to the families of firefighters and police, that is created by various guilds and union organizations. Unlike life insurance policies, retirement accounts, and so on, which include specific written beneficiary designations, the firefighter benefits that are central to Nikki Araguz's probate battle do not include any provision for such designations. In some U.S. states, such funds are enacted and endowed by state statute, and designate the beneficiaries in the statute, without any opportunity for the firefighter or police-person to name a beneficiary. Such benefits are a form of non-testamentary proceeds, which designate the legal spouse of the firefighter as their beneficiary, or the children of the firefighter when there is no spouse.

In this case, Heather Delgado, who represents Thomas Araguz's children in the lawsuit, and Simona Longoria, who now represents the estate of Thomas Araguz, want to claim that Nikki Araguz is not his legal spouse, and therefore any money that would go to Nikki Araguz from the fallen firefighter fund, should instead be given to the secondary/contingent beneficiary, his children. However, Thomas Araguz could have avoided another aspect of the battle that isn't much discussed, the disposition of Nikki and Thomas's personal property if he had executed a Will or a Will and Revocable Living Trust. In that regard, it appears that Nikki Araguz may have lost the battle over her shared personal property, because Simona Longoria has been appointed executor of Thomas Araguz's estate by Judge Randy Clapp, who presides over the Wharton County District Court, and Thomas Araguz III did not leave a Will. Thomas Araguz did designate Nikki Araguz the beneficiary of his life insurance / pension plan benefit, which is $60,000.00, and Nikki Araguz has already received those funds, minus attorney's fees. However, if Nikki Araguz loses the lawsuit, she loses: the $300,000 in firefighter spousal benefits; she won't get Texas statutory free college tuition; her marriage to Thomas Araguz will be ruled legally void by the court, as though it never existed; and the court would likely declare her legal male; all in accordance with the 1999 Littleton v. Prange decision.

The only way Nikki and Thomas Araguz had much chance of avoiding the legal battle she is now waging, would have been relocation to a U.S. state that recognizes heterosexual marriages where one of the partners to the marriage is transsexual or intersex and has undergone genital reconstruction surgery. To do that, they would likely have needed to leave behind the two young boys they both loved dearly, and devoted themselves to raising. Apparently, their personal priorities did not enable them to place their love for each other before their love for their children. They may have knowingly taken the legal risks associated with their residence in Texas because of their devotion to their boys, although it will forever be impossible to know what they thought or may have discussed, never expecting that Thomas Araguz would die fighting a fire, after his fifteen years experience fighting fires without a mishap.

At present, Nikki Araguz is faced with an extreme test of motivations, morals, principles, and priorities. For example, her attorneys could negotiate down to a final offer to Heather Delgado and Simona Longoria, offering to sign away Nikki's interest in the $300,000 in exchange for an out of court settlement that enables Nikki's marriage to remain intact. Such a settlement proposal would also test the motivations, morals, principles, and priorities of Heather Delgado and Simona Longoria. If Heather Delgado and Simona Longoria were to accept such a settlement, the court of public opinion might make the judgment that they were only in it for the money, rather than making a judgment that they were setting aside their spite toward Nikki Araguz by allowing the legal status of Nikki's marriage to Thomas to remain intact through the settlement. A settlement would allow Nikki Araguz to win the existence of her marriage, plus an opportunity for free tuition at any Texas public university, at a cost of $300,000 in literal blood money, and the settlement would also save the larger battle over legal rights for transsexual and intersex people for another day.

Such an approach upsets the sensibilities of many people in the transsexual and intersex populations, and the associated online communities, who believe the battle for transsexual and intersex legal rights should be waged with full legal force at every opportunity. However, such beliefs deny the realities of Texas courts and the history in U.S. courts in response to similar legal battles. When it comes to social crusades in the courts, place, time, jurisdiction, venue, and the composition of courts, has always been part of such legal battles. By comparison, surely the court battle in federal courts that started in California over universal marriage rights was carefully chosen by it litigants and legal supporters as to time and jurisdiction. The composition of the federal district and federal appeals courts in California is clearly favorable, while the U.S. Supreme Court has shifted toward being favorable as well, since the core issues are primarily constitutional, regarding equal protection and due process. While the lawsuit against Nikki Araguz is currently in its evidence gathering phase, and not likely to create new headlines for weeks or even months, its future will not only be a test of judge Randy Clapp's character and temperament, it will be a test of morals and motivations, principles and priorities, for Heather Delgado, Simona Longoria, and Nikki Araguz, alike.



references

(1) WPATH Standards of Care
http://www.wpath.org/Documents2/socv6.pdf

(2) U.S. States whose appellate courts have voided legal sex status and marriages of transsexual people:

Ohio - In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (Ohio Probate Ct. 1987)
Texas - Littleton v Prange, 9 SW3d 223 (1999)
Kansas - In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002)
Florida - Kantaras v. Kantaras, 884 So. 2d 155 - 2004

(3) U.S. State that recognition marriage regardless of legal sex status of that parties
http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States

(4) The Uniform Trust Code
http://www.law.upenn.edu/bll/archives/ulc/uta/2005final.htm

(5) Living Trust
http://en.wikipedia.org/wiki/Living_trust

(6) Some basic information about Wills and Trusts
http://www.livingtrustvswill.com/

(7) tsroadmap - information about changing birth certificates
http://www.tsroadmap.com/reality/birth-certificate.html


(8)  Michigan Compile laws 333.2891 (9) (a) - Changing Sex on Birth Certificate
http://legislature.mi.gov/doc.aspx?mcl-333-2891


(9) Some Health Care Legal Document Resources (neither verified nor endorsed)

cursory outline, example healthcare power of attorney
http://estate.findlaw.com/estate-planning/living-wills/hc_poa.html

cursory, outline, example living will
http://estate.findlaw.com/estate-planning/living-wills/le23_9_1.html

another cursory, outline, example healthcare power of attorney
http://www.idph.state.il.us/public/books/PwrOf.PDF

http://estate.findlaw.com/estate-planning/living-wills/

http://www.legalhelpmate.com/living-will-form-faq.aspx

http://www.legalhelpmate.com/

Wednesday, August 4, 2010

an outline of the civil lawsuit process

Apparently, most people have little or no knowledge of how the civil lawsuit process works, or even how long it is going to take for the first major phases of the Delgado v. Araguz probate/inheritance lawsuit to be completed. Unless, there is an out of court settlement between the parties, based on the Texas court rules of civil procedure, the trial court level of this lawsuit is likely to last as long as a year, unless one of the parties succeeds with a Motion for Summary Judgment by the court without trial.

Here is a list of the major steps in a civil lawsuit:
  • Plaintiff files a summons and petition/complaint
  • Plaintiff files an optional motion for temporary restraining order (TRO) with petition/complaint
  • Show Cause Hearing for TRO - (TRO usually granted)
  • Defendant has option to file motion to attack validity of petition/complaint
  • Defendant files an answer to the petition/complaint
  • Discovery begins - which is the evidence gathering process
    • The judge holds a hearing and requires the parties to develop a discovery plan and schedule
    • The parties exchange written questions called interrogatories
    • The parties exchange written requests for production of documents and other evidence
    • The parties subpoena evidence from people not a party to the lawsuit
    • The parties take oral depositions of opposing parties, and non-party witnesses
    • The plaintiff might file a motion for court order for medical examination of the defendant
  • At any time, either party may file a motion for summary judgment by the court using existing evidence, without trial.
  • Discovery Deadline arrives - about nine months in Texas
  • The parties file various pre-trial motions.

    • a party may move to disallow presentation of certain evidence or witness(es)
    • either party may move to have a fact agreed upon (called stipulation)
  • A trial date is set and the case proceeds to trial, either by a judge alone, or by a jury.
  • Either party may appeal the verdict of judgment. However, appeals courts consider only matters of law, not the matters of fact, in a case.
The temporary restraining order (TRO) motion hearing that occurred on Friday July 23, 2010, and which began the height of the media frenzy over the case, is actually standard procedure. It would have been extremely unusual for the judge to do anything other than grant a TRO that places the funds at issue in the case into stasis until the court process has been completed. In this case the judge froze the finances at issue from access by either party. The word temporary is what is most important about a temporary restraining order, and such a decision may have nothing to do with the final outcome of a case, it just freezes funds and orders the parties to refrain from certain activities that might otherwise render the litigation pointless. At the end of the lawsuit, the judge will likely issue a permanent injunction against one of the parties, enjoining that party from access to the funds and assigning the funds in question to the prevailing party. However, the judge is likely to issue yet another temporary restraining order at the same time, that keeps the funds frozen during the pendency of whatever appeals court proceedings follow the trial court's ruling.

The current phase of the lawsuit is the Motion to Dismiss, filed by the attorneys defending Nikki Araguz, on the basis that the plaintiff does not have a claim on which relief can be granted as a matter of law. It doesn't seem likely that the judge is going to grant such a motion however. Instead, it seems like most courts would withhold judgment on the central issues in the case, and instead order the case forward into discovery, the evidence gathering phase, so that the parties can develop their evidence and present their cases to the court again once they are fully developed. The logic is that the parties should have an opportunity to develop and present a complete court record, so that an appeals court considering the matter has a full set of findings of facts and findings of law.

The attorneys defending Nikki Araguz have also filed a motion to exclude some of Thomas Araguz's finances from consideration within the lawsuit. That motion argues that life insurance policies and pension fund policies on which Thomas Araguz specifically designated Nikki Araguz as the beneficiary should not be at issue in the lawsuit, and should therefore be unfrozen and made available to Nikki Araguz immediately. The argument the attorneys for Nikki Araguz have apparently made includes the fact that Thomas Araguz checked the "other" box on those documents, implying that the issue of marriage should not apply to those funds. As of this writing, the judge has not yet ruled on this motion, but a hearing has been set for Monday August 16, 2010.

After a period of evidence gathering, either party can again present its case to the court for judgment as matter of law by the judge, without a trial or jury. That process is called summary judgment. It seems likely to expect that both sides will use that tactic at some point during the litigation. The discovery process is likely to continue until the beginning of 2011, unless the discovery process is interrupted by one or motions for summary judgment from either side of the case.

Even if this case were to go to trial, the court seems likely to hold a bench trial, to be judged as a matter of law by the judge, without the need to determine matters of fact using a jury.

Given the pugnacious demeanor of the parties in this case, it seems all but certain that the parties will take this case to an appeals court if they don't receive an outcome that satisfies them. An appeals court only considers "matters of law" for review and does not reconsider the facts on which its legal decisions should be made. Each stage of the appeals process can take a as long as a year or more to complete. Real life doesn't operate like fictional television courtroom drama. In fact, the media frenzy and public furor seem likely to have died down long before this case reaches its final conclusion.

Texas Court Rules of Civil Procedure - PDF file format

Tuesday, August 3, 2010

heather delgado's greed and vindictiveness

Nikki Araguz (left) and Thomas Araguz (right)
In her news conferences and public statements, plaintiff Heather Delgado's primary focus has been on making negative personal accusations against Nikki Araguz, accusing Nikki of being greedy for trying to hold onto the life insurance and pension benefits that Thomas Araguz made Nikki the recipient of, and the other assets she stands to inherit as his wife, and falsely characterizing Nikki as a liar and a fraud. However, given an objective and thorough analysis of the circumstances and available facts regarding this case, the reasonable conclusion is that Heather Delgado is actually the person who is being not only greedy and vindictive, but also foolhardy by bringing her lawsuit against Nikki Araguz. Heather Delgado's actions are foolhardy primarily because: regardless of the outcome, the legal battle she has instigated will result in the attorneys taking a significant amount of the money from the parties that would otherwise have been available to them for their benefit, and because she is the originator of a controversy that seems sure to spill over into emotional and financial harm to the children involved. The appropriate conclusion also seems to be that Heather Delgado is the liar, not Nikki Araguz. Heather Delgado's actions are doing little more than scorching the earth beneath her own bare feet.

It seems likely that both parties have hired their attorneys on a contingency basis, which means the attorneys will take their fee, if any, from a percentage of the parties' financial gain, plus their expenses. These days, attorneys in such cases usually get almost half when their fees and expenses are combined. If Heather Delgado would have left well enough alone, her biological children would probably have a $300,000 fund for their well being, and she would not have subjected them to the public abuse that will likely result from the current media fiasco. Even if Delgado wins everything, and the attorneys take nearly half, her children are likely to be left with $300,000 at most, and only after a fierce battle that will have vilified everyone, is likely to have destroyed personal relationships, and seems likely to have emotionally harmed the very children who best interests are supposedly everyone's primary concern. Consequently, Delgado's legal battle doesn't seem likely to increase the finances available for care for the children, and instead seems likely to reduce the amount of money Thomas's Araguz's children are likely to receive in the end.

In other words, if Heather Delgado truly had the best interests of her biological children in mind, she would have shown the common sense not to involve them in a media frenzy in Texas that seems sure to find its way into their social lives when they return to school in the fall, has made her entire family the object of nation wide discussion and speculation, and seems likely to follow them for years into the future. It seems certain that this sort of legal battle will leave a permanent emotional scar on Thomas Araguz's children; scars that could have easily been avoided.

In addition, while Heather Delgado has chosen to publicly castigate Nikki Araguz for errors in judgment in Nikki's past personal life that have nothing to do with her ability to inherit from her husband, Heather Delgado's shrewish public demeanor has been one of a bigoted, mean spirited, scorned ex-wife, out to dredge up trouble at any cost, and make life miserable for Nikki Araguz, the woman whose relationship with Thomas Araguz implies that he believed Nikki was better able to make him happy, and who apparently judged Heather Delgado's character unworthy enough that he divorced her in 2007.

One of the lessons that it seems anyone can learn from this legal battle, is that it is never too early to begin careful, clear, and explicit, estate planning. It seems apparent that Thomas Araguz died "intestate", meaning without a will, although news articles have not mentioned that fact. Because Thomas Araguz had only specifically designated some of his estate to Nikki Araguz by naming Nikki the beneficiary of his life insurance and pension plan, the rest of his estate is left to the court to decide who should inherit, based on Texas law, because he did not leave a will. If Thomas Araguz had anticipated the potential for his accidental death due to the inherently dangerous nature of his work as a volunteer fireman, he could have more specifically and explicitly designated the handling of his estate with the potentially legally contentious nature of his relationship with Nikki Araguz in mind. He could have created a will and trust that specifically provided for Nikki Araguz regardless of whether or not a court of law considered them legally married, and could have made Nikki Araguz the executor of his estate and the trustee of his living trust. He could have had an attorney draft the documents to specifically reflect his wishes for Nikki Araguz, had the documents clearly state that Nikki Araguz should be the heir to his estate regardless of whether or not he was legally married to her, and he could have included specific statements about his awareness that Nikki Araguz had undergone vaginoplasty surgery and has Androgen Insensitivity Syndrome, so that she could not be accused of fraud.

Monday, August 2, 2010

Nikki Araguz defense team files new motion(s)

Today, attorneys for Nikki Araguz in the Heather Delgado v. Nikki Araguz probate/inheritance case, have apparently filed one or more motions to dismiss the case, along with supporting declarations and exhibits. Their motion(s) contain multiple factual and legal grounds. The supporting declarations and exhibits also clarify some factual details with seemingly compelling evidence.

The defense motion cites a very minor change to the identification section of the Texas marriage statute that says a government document that indicates change of sex may be used as identification for a marriage license. They are referring to Section 2.005(b)(8) [proof of identity and age] which states:
FAMILY CODE
TITLE 1. THE MARRIAGE RELATIONSHIP
SUBTITLE A. MARRIAGE
CHAPTER 2. THE MARRIAGE RELATIONSHIP
SUBCHAPTER A. APPLICATION FOR MARRIAGE LICENSE
…
Sec. 2.005. PROOF OF IDENTITY AND AGE.
(a) The county clerk shall require proof of the identity and age of each applicant.
(b) The proof must be established by:
…
(8) an original or certified copy of a court order relating to the applicant’s name change or sex change;
…
Amended by:
…
Acts 2009, 81st Leg., R.S., Ch. 978, Sec. 2, eff. September 1, 2009.

Texas Family Law Code: Title 1, Subtitle A, Chapter 2, Subchapter A, Section 2.005, paragraph 8
Attorney Phyllis Frye (left) Nikki Araguz (center)
That 2009 statutory amendment is extremely obtuse and seems open to all sorts of varying interpretations. Of course both sides of the case have completely different interpretations about the meaning of that vague clause, which was added to Texas marriage law, apparently without any explanation regarding its purpose. The core argument presented by attorneys for Nikki Araguz is that this recent statutory change takes precedence over the 2000 lower appeals court decision in Littleton v. Prange, No. 99-1214 (Tex. 18 May 2000), that chromosomes define sex status immutably at birth. However, the Littleton v. Prange decision did not take into account the potential for mosaic sex chromosome conditions, or conditions like Androgen Insensitivity Syndrome (AIS) that make a person unable to develop male attributes because testosterone has little or no effect on people with the condition.

Of course attorneys for the plaintiffs, Heather Delgado et al, have argued the opposite about the statutory change. They argue the change in the statute provides for same sex marriages between a post-surgical-transsexual-female and an ostensibly genetic female. However, it seems like such an argument would defy the plaintiff's simultaneous claim that same-sex marriages are illegal in Texas. The logic presented by attorneys for Nikki Araguz is that her marriage is a heterosexual one, based on the fact that Nikki Araguz presently has a vagina and that Thomas Araguz had ostensibly always had a penis and an XY chromosomal pair, in contrary to Littleton v. Prange, and in accordance with the minor statutory change, Texas law should recognize the fundamentally heterosexual nature of such a marriage for all practical purposes. One fact that remains unknown, is the chromosomal makeup of Nikki Araguz's sex chromosomes, although Nikki's mother has made emphatic statements that Nikki Araguz was born with AIS, and video recordings of Nikki at about age nineteen or twenty provide ample evidence that testosterone had not had any influence on her body at that juncture in her life. What seems likely is that the attorneys for Heather Delgado will file a motion to require that Nikki Araguz undergo genetic testing and a medical examination to verify the status of her genitals and potentially her internal reproductive organs, if any, as well.

The second argument the defense makes in its motion, is that although the August 2008 marriage may not have been legal, the parties should be considered married under "common law marriage" in Texas after Nikki Araguz's vaginoplasty operation with Marci Bowers in October 2008 and after the subsequent statutory change cited above. The attorneys for Nikki Araguz have used September 2, 2009, as the date of their "legal and informal marriage", on the basis that the change in Texas statutory law took effect on September 1, 2009.

The defense also filed exhibits containing copies of email messages sent between Thomas Araguz and Nikki Araguz during October 2008 when Nikki was in Trinidad Colorado having her vaginoplasty surgery with Marci Bowers on October 7, 2008, but Thomas apparently had to stay in Texas because he was on call for fireman's duty. If they were smart enough to include the full transmission headers with the emails, it seems like such emails would serve as excellent evidence of what knowledge Thomas Araguz had at the time regarding the fact that Nikki Araguz has Androgen Insensitivity Syndrome (AIS), an intersex/hermaphroditic condition, and got surgery to create a vagina to align her genitals with her naturally occurring estrogen influenced hormonal condition. Thomas Araguz wrote in an email to Nikki:
What can i say to make you feel better? The only thing I known (sic) is 'I LOVE YOU.' Trevor and Tyler miss you dearly, they love you with all their little heats. (sic) Today has been a hell of day, would you agree? After taking (sic) to you, I called my mother and law (sic) to let her known (sic) the good news, about your opt. An (sic) you know she spead (sick) the good news all the world. HEY I TO GO I A HOUSE FIRE. ILU.
In response, Nikki Araguz replied:
My sweet husband, I LOVE YOU. It has been a day heck and also God answered prayers. I love you so much. We can now move on with the rest of our livrs (sic)...I just got this thing to work somehow and the pain lady came in and gave me morphine...si I am fading fast. You are my best friend, and Praise God fro (sic) you...this is wild that little thing is gone...I think I am supposed to see it for the first timr (sic) tomorrow....Imiss my boys too...Have a great day at school tomorrow...Love you sweet wife, Mrs. Nikki Araguz
On Monday August 2, Nikki Araguz has been reported as stating:
This is less about money than it is about the civil rights of my husband and I to legally be recognized as we recognized each other - as a heterosexual, male and female married couple. There is no question that my husband knew exactly what was going on. He was fully loving and accepting and compassionate to the medical condition that I was dealing with when we first met.
The defense team for Nikki Araguz either included in the same motion, or filed in a separate motion (newspapers weren't clear), a request to exclude from the lawsuit, all proceeds from insurance and pension funds, in which Thomas Araguz explicitly and specifically designated Nikki Araguz as the beneficiary. Apparently Thomas Araguz had the presence of mind to check the "other" box rather than the "spouse" box on those documents, which seems like it provides additional evidence of his awareness of the potential arguments over the legality of their marriage.

As for the August 2008 wedding ceremony, it seems like all sorts of people have wedding ceremonies without making them a legal matter recognized with a marriage license. Given today's motion(s), it seems like the defense team for Nikki Araguz understands that a marriage license from August 2008 wouldn't be valid under any legal theory in Texas, since Nikki didn't get to Trinidad for surgery with Marci Bowers until October 2008, and they have filed the email exchanges that document that Thomas was fully aware that was happening.

A couple of the news reports also implied that attorneys for Nikki Araguz have filed motions in both the child custody lawsuit and the probate/inheritance lawsuit, where Frank Mann represents Simona Longoria, or has other involvement with the cases, to have him removed. Evidence has surfaced the Frank Mann has committed "conflict of interest" and breached "attorney/client privilege", which are both serious violations of the code of ethics that attorneys are required by law to follow. One blog, known as "bad lawyer nyc", characterized Frank Mann as a "menace" who has no business practicing law.

In summary, it seems like the defense attorneys for Nikki Araguz are going to use the statutory change cited above as the basis for a fresh "first impression" legal battle over marriage legality for transsexual people in Texas. Today's motion also appears to serve as the Texas equivalent of the 12(b)(6) "failure to state a claim upon which relief can be granted" form of motion to dismiss that would have been filed pursuant to the federal style rules used in most other jurisdictions, and which always precedes filing an "answer" to a lawsuit.

Saturday, July 31, 2010

Nikki Araguz - media exploitation and personal revenge

One of the side effects of press and news media sensationalization of something like the civil lawsuits against Nikki Araguz by her late husband's the ex-wife, Heather Delgado, are the various forms of media exploitation that arise as a result. Such exploitation seems like the modern version of the puritanical era practice of locking someone in a pillory at the town square, to be the object of ridicule, harassment, and humiliation. Here are three examples.


a puritanical town square pillory
First of all, Nikki Araguz is being exploited by newspapers and television stations in Texas, who are reaping significant financial gain from writing, publishing, and broadcasting, sensationalized stories about the intimate and not always relevant details of Nikki Araguz's life. These are stories their producers apparently believe generate morbid curiosity among the largely bigoted and hostile viewing public within the culture that dominates much of Texas. The result is that they appear to believe that providing a sensationalized and lurid presentation of Nikki Araguz will increase their television ratings, sell more newspapers, or generate more visits to their web sites, all operated for profit from advertisers. What has also been noticeably absent from the television and newspaper sensationalization, is that the news media has refrained from reporting on the personal histories and background of Heather Deldago and Simona Longoria, who are the people suing Nikki Araguz on behalf of Thomas Araguz's two sons. Altogether, this seems like a quite corrupted approach to journalism.

The second form of exploitation has come from the creator of a college student video documentary about Nikki Araguz made about fifteen years ago. It is apparent that the author of the video was paid a significant sum of money by the Houston, TX Fox News television station for the exclusive rights to broadcast it. However, one can't help but notice that the video's author has not been identified, neither by Fox News in Houston, nor by Nikki Araguz and her attorneys, who must certainly know who created it. In addition, Fox News has committed the unethical act of showing only heavily edited, and self serving, excerpts from the video, overlaid with their own editorializing commentary and intercut with other video, to create the editorial slant they want to present their viewers.

In their television report, the Fox News representation of transsexualism is of her being "troubled", their term, and "confused", also their term, while the video itself presents an obviously happy, very young woman, even at nineteen or twenty years old, who claims she had not even been taking female hormones at that point, despite her significantly feminine physique and total lack of any secondary physical features that would be caused by testosterone. In fact, if in the future Nikki Araguz is able to present medical evidence that she was not taking female hormones at that time, that might serve as evidence she has a medical condition called partial Androgen Insensitivity Syndrome (AIS), implying there may be a clear physiological basis for her transsexual condition, causing some to reach the conclusion that she had both a transsexual medical condition and an intersex/hermaphroditic medical condition that impacted her youth. Parenthetically, women with total Androgen Insensitivity Syndrome, are born with female genitalia, despite having an XY sex chromosome pair, because their bodies have no ability whatsoever to process testosterone, which is required during gestation in order for male genitalia to develop.

http://en.wikipedia.org/wiki/Androgen_insensitivity_syndrome

The potential that Nikki Araguz was born with AIS may provide a legal basis for making a claim to marriage legality that differs somewhat from the issues ruled upon in the Littleton v. Prange court case. Given this subtly significant aspect of that fifteen year old video, it seems likely that either or both parties to the probate/inheritance lawsuit will issue a subpoena to its creator, to produce it for use as evidence, which would also require him to serve as a witness to authenticate it for use as an exhibit and evidence if the case ever gets to trial. What has also gone unexamined by much of the press and media are the motivations behind someone selling such a video to a television station, which on a personal level means that person cares little about the feelings of Nikki Araguz, and doesn't care if Nikki Araguz, becomes the exploited victim of tabloid journalism, so long as the author makes a profit from it. Such a person is no friend of Nikki Araguz. Too bad that Nikki Araguz wasn't legally sophisticated enough at the time to require a written contract regarding the manner in which the author would be allowed to use the video of her in the future.

The third example of exploitation that has arisen, is the man Nikki Araguz apparently "ambushed" on a 1994 episode of the Jerry Springer Show. Once again all the newspapers and television stations have noticeably left that man's identity out of their news reports, despite the fact that his identity is surely publicly available and he can likely still be seen on television in re-runs of that episode of the Jerry Springer Show. Once again though, although Nikki didn't behave like a friend when she manipulated that man onto that television program without telling him about the disclosure she was going to make, the man she humiliated on the Jerry Springer Show has been able to turn the tables on her all these years later. That is quite a serious example of "what goes around comes around", and in this instance, it seems like Nikki's adversaries in the lawsuit against her are likely to use its implications about Nikki's character against her during the litigation as well.

Amazingly, at least from public appearances, Nikki Araguz seems to be holding up well emotionally, and except for displaying tangible grief about her late husband, she has handled intense public scrutiny with a significant level of detachment and maturity. The one asset Nikki Araguz undeniably has, is a team of attorneys with the desire, knowledge, tenacity, and apparently, the financial ability, to litigate this case on behalf of Nikki Araguz, no matter how long it takes, no matter how difficult the litigation, and no matter what the outcome.

Friday, July 30, 2010

frank mann - source of the Nikki Araguz leaks

Yet another twist has come to light about the two lawsuits against Nikki Araguz. Apparently, Frank Mann, the attorney for Heather Delgado, the ex-wife of Nikki Araguz's late husband in the child custody lawsuit against Nikki and her late husband, had previously represented Nikki Araguz and Emilio Mata, Nikki's first husband, during a 2002 bankruptcy case. It is surely a violation of judicial ethics rules for Frank Mann to represent Tom Araguz's ex-wife, Heather Delgado, since his previous representative involvement with Nikki Araguz and Emilio Mata creates a direct conflict of interest.It appears that Nikki Araguz may have discussed her medical history with Frank Mann under attorney client privilege, and that Frank Mann has violated that privilege and disclosed that confidential medical information to Heather Delgado in the child custody case and in an email broadcast Frank Mann sent to friends of his about Nikki Araguz during her campaign for mayor of Wharton, TX. This explains how Heather Delgado became aware that Nikki Araguz is a transsexual woman, and it also explains the timing of Heather Delgado's knowledge of this information.

Texas state bar records show that Frank Mann has been repeatedly sanctioned for ethics violations in the past, and that his license to practice law has been temporarily suspended on multiple occasions. It is curious that Nikki Araguz and her late husband Thomas Araguz didn't know enough about the legal system to realize that Frank Mann shouldn't be representing a client in opposition to here after Frank Mann had already represented her, and that their attorney doesn't seem to have been aware either. In addition, Frank Mann had an ethical duty to refrain from representing Heather Delgado, Simona Longoria, or anyone for that matter, in any lawsuit against Nikki Araguz. The Houston Press describes Frank Mann's past involvement with the Texas State Bar Association regarding his ethics violations as follows:
It's not Mann's first dance with the Office of Disciplinary Counsel: in 1990, Mann agreed to a fully probated 36-month suspension for "misrepresentations of fact concerning the dates of his hospitalization for alcohol and substance abuse in an affidavit offered in support of a motion to retain." (The suspension was stayed; he was allowed to actively practice, but was placed on probation.) The Office of Disciplinary Counsel also ruled that, in one case, Mann "assigned away 100 percent of any attorney's fees" and then "intervened in the pending lawsuit, claiming an interest in attorney's fees."

In 1997, Mann was suspended for five and a half years and was not eligible to practice for the first 36 months. In that case, among other things, the Counsel found that Mann's paralegal "affixed [a] client's signature from a prior document to a proposed modification, without the client's consent." Mann wasn't in the office at the time, but he was "responsible supervision and instruction of his staff and for ensuring that his staff follows the law and the Texas Disciplinary Rules of Professional Conduct."
http://blogs.houstonpress.com/hairballs/2010/07/ex-wifes_lawyer_investigated.php

The newspaper article above reveals that attorneys for Nikki Araguz have already filed a complaint with the Texas State Bar Association. However, at first the Texas State Bar Association dismissed the complaint, and has only re-opened its investigation now that Frank Mann, Heather Delgado, Nikki Araguz, et al, are headline news all across Texas. That doesn't speak very well of the Texas State Bar Association, which has allowed Frank Mann to continue practicing law despite his repeated demonstration of a lack of respect for the rules of ethical conduct that attorneys are required by law to follow. The Texas State Bar Assocation web site contains all the details about its disciplinary actions against Frank Mann:

Frank E. Mann III
6750 West Loop Souoth #120
Bellaire, TX 77401
713-524-6868
License Number: 12924250
http://www.mannfamilylaw.com/
Texas State Bar Profile of Frank E. Mann III

Although the attorney for Nikki Araguz in the child custody lawsuit could surely file a motion with the court in that case to have Frank Mann removed as attorney for the ex-wife Heather Delgado, the damage is already done. Even though Frank Mann may have committed a conflict of interest violation, may have violated his attorney/client privilege with Nikki Araguz, and the Texas Bar Association could go after him, Frank Mann appears to have already succeeded in his role as the Judas whose unlawful disclosures instigated the legal firestorm that now surrounds Nikki Araguz.

Life for transsexual people seems truly perilous when transsexual people can't even depend on attorney/client privilege. It turns out that Frank Mann was secretly quite transphobic, and also tried to leak his privileged knowledge of Nikki Araguz's medical history before the election for Mayor Wharton, TX in May 2010, in which Nikki Araguz was a candidate. Nikki Araguz lost that election anyway, even though the information doesn't appear to have been made public at the time, and Nikki Araguz appears to have been ineligible to run for public office anyway, because she has a felony conviction on her criminal record. However, the most important revelation here is that Frank Mann appears to be someone who has no business practicing law, and is someone who may be primarily responsible for creating the leaks that have stirred up the mess that currently surrounds Nikki Araguz's life.

The twists and turns in the Nikki Araguz lawsuits just seem to keep on coming. It is hard to imagine what life must be like right now for Nikki Araguz, with nearly every aspect of her life virtually exploding around her. It seems like the average person would need anti-anxiety medication just to cope and be able to sleep at night.

Nikki Araguz, truth, and courts of law

In a recent Houston Chronicle newspaper article, Nikki Araguz is quoted as saying she and her late husband perjured themselves in depositions that were taken as part of the child custody lawsuit her husband's ex-wife Heather Delgado filed against them before his death. In that newspaper article she was quoted as follows:
"That deposition is a lie," Nikki Araguz said from her Wharton home Monday night.
"At the time, Thomas and I thought it was in the best interest of our children to lie. They were the center of (our) lives," she said.
http://www.chron.com/disp/story.mpl/metropolitan/7125992.html

It seems apparent that Nikki Araguz and her late husband, Thomas Araguz, truly didn't understand the legal system and the potential consequences for committing that sort of obvious perjury in a legal proceeding. Such perjury, once discovered by the court, which she has now publicly admitted to, only provides Heather Delgado with the very evidence of poor character Delgado would need to claim that Nikki Araguz is an unfit custodial parent for Ms. Delgado's biological children. With that sort of evidence, Nikki Araguz has unwittingly given Heather Delgado the ability to avoid mentioning Nikki Araguz's irrelevant transsexual status at all in the child custody case, to instead focus on Nikki's criminal history and her perjury in the lawsuit itself as the basis for preventing Nikki from having contact with her step sons. In all likelihood though, it seems probable that the child custody lawsuit is a moot point at this juncture anyway. This is so because, unless Nikki Araguz had adopted the children prior to her husband's death, it seems probable that she lost any legal relationship to her step children, has probably lost standing (the ability to be a party) in the child custody lawsuit as a consequence of her husband's death, and therefore has probably lost any legal right to have contact with her two step sons, Trevor Araguz (age 9) and Tyler Araguz (age 7), anyway.

Heather Delgado lawsuit news conference - Thursday July 29, 2010

Here is video from the latest news conference by Heather Delgado, the plaintiff against Nikki Araguz in the inheritance lawsuit filed by Delgado, who is attempting to prevent Nikki Araguz from inheriting the proceeds from the estate of her late husband Thomas Araguz. His estate includes fireman's death benefits with an apparent value of as much as $600,000, plus the proceeds of a life insurance policy he had which names Nikki Araguz as its beneficiary.



Clearly, this presentation by Fox News of excerpts from the news conference that Heather Delgado gave is heavily edited, and only contains short snippets of what was surely a much longer interview. The video is also intercut with segments from the video documentary of Nikki Araguz that was made over fifteen years ago. Consequently, the video above does not provide any sort of objective presentation of the information.

However, one point made by the news reporter, is that Heather Delgado doesn't have any explanation for her assertion that Thomas Araguz didn't know Nikki Araguz is a transsexual woman until just a few months ago. Such a claim clearly lacks credibility, and seems difficult for any reasonable person to believe, since Nikki Purdue (Araguz) married Thomas Araguz in August 2008, but she has stated in a video interview that she didn't have what was apparently sex reassignment surgery to create female genitalia for her until October 2008. It seems highly improbable that the two of them could have been living together during that time without Thomas Araguz being aware of the configuration of Nikki Araguz's genitalia and sex organs. As far as the legal issues in the probate/inheritance lawsuit are concerned, the timing of the surgery could become significant, since the date of the surgery implies that Nikki Araguz was morphologically male, i.e. she has male genitals, at the time she and Thomas Araguz were married, and only obtained female genitalia including a vagina months later. Such a fact pattern would undercut the defendant's ability to use an argument that once a transsexual woman has obtained a vagina as a consequent of surgery, she is physically and legally female, and therefore eligibly to marry, since it appears that Nikki (Purdue) Araguz may have had male genitalia at the time she married Thomas Araguz.

One point of speculation that certainly needs to be entertained, is whether or not Nikki Araguz had undergone an orchiectomy prior marrying Thomas Araguz, was able to obtain an affidavit fromm the orchiectomy surgeon that such surgery fulfilled the requirements of California law with regard to sex-reassignment, thereby enabling Nikki Araguz to obtain a female birth certificate from California, which she could then have used to obtain a Texas marriage license. Hopefully the plaintiff's attorneys will be astute enough and knowledgeable enough about transsexual medical treatment to ask such questions when they next depose Nikki Araguz.



Regardless, the war of emotional words, and the over simplified and obtuse claims made by both parties and their attorneys about the legal issues in the case mean little in comparison to what will and must transpire within the confines of court procedure, including upcoming depositions of the parties, and numerous subsequent court hearings. In this most recent video Heather Delgado attempts to place all the blame for what Heather described as "this mess" on Nikki Araguz, when the truth is that Heather Delgado could have avoided the mess she started by filing a lawsuit against Nikki, could have refrained from filing such a lawsuit, and could have accepted half of the $600,000 in fireman's benefits, and could have tried to work out a friendly agreement for support of the young boys. Instead, she has cast herself in the role of a Roman centurion, attempting to use her lawsuit against Nikki Araguz to nail Nikki to a proverbial crucifix, making Nikki a martyr for the cause of marriage rights for transsexual people. Hopefully, the district court in Wharton, Texas will take the case seriously enough to patiently obtain and hear all the facts in detail, regardless of the judgments it renders as a consequence of those facts and the current state of Texas law. In any event, it is very sad indeed that Texas law allows this Nikki Araguz's entire life to be invaded in the service of this sort of oppressive witch hunt against her.

Thursday, July 29, 2010

Perspectives on the Prospects for Nikki Araguz

Based on a cursory perusal of articles and commentary around the internet, a significant percentage of the transsexual population has reacted primarily emotionally, with indignation, and outright anger, about the lawsuits against Nikki Araguz. Many such people have bristled in response to the detailed information that has been published regarding Nikki Araguz, preferring instead, to believe that somehow mere righteousness might win the day in the face of a hostile Texas culture, presumably bigoted Texas judges, and a Texas judiciary whose appeals court decisions have already stacked the deck against Ms. Araguz. Various transsexual activists have focused on the lurid nature of the television and press coverage, reacting with anger and outrage. For example, on facebook.com, the vivacious and valiant Ashley Love shared the following comment:
The media keeps on spreading misinformation about this case. Their offensive and innaccurate misreporting must be called out in order to aide the transsexual, transgender and intersex communities.

http://www.facebook.com/loveashleylove
Ms. Love's comment is correct that nearly every news article has been slanted, misleading, inaccurate, often offensive, and designed to generate negative public sentiment toward Nikki Araguz. However, Ms. Love's statement doesn't identify any of this purported misinformation specifcally.

In fact, much of the core information published by the media, in the midst of its salacious approach to it, has been factual: statements from Nikki Araguz herself, video interviews with Nikki Araguz herself - including a video documentary of her from over fifteen years ago that is quite extensive, Nikki's own admission of perjury during an April deposition she gave, Nikki's own admission and her own apology for appearing on the Jerry Springer Show in 1994 in which she used that television program to blindside someone she had dated by disclosing her transsexual status to him on the program, the details of Nikki's criminal history which includes multiple felony convictions, court records that include her 1996 name change petition, and more. The problem isn't about the truth or falsehood of the media disclosures, the problem is their lack of relevance and the scurrilously misrepresentative nature of them, since few if any of them are actually relevant within the lawsuit itself.

While some people contend that some of this information is purely about Nikki Araguz's character and credibility, and irrelevant to the central legal issues in the probate case, this sort of character information seems likely to have a significant impact on Nikki's ability to testify on her own behalf in any future deposition and in any trial that may occur, especially her public admission of perjury. Admittedly though, if her case were to stand any chance at trial, it would be the quality of expensive medical expert witness testimony that would form the core of a trial court record for future consideration by an appeals court that seems likely to be most important to her case. However, the plaintiffs, Heather Delgado and Simona Longoria, seem quite likely to focus on Nikki's character to attack the validity of her marriage, including admissions of perjury, deception, criminal convictions, and her equivocation and attempts to prevaricate about the specifics of her medical history, and the sequence of events, including the surgery she received in 2008, that surround her two marriages.

Based on her own recent internet posts, Nikki Araguz appears to be in psychological denial about the impact of her own extensive public statements, and about the potential consequences of the factual information that has come to light about her, most of which seems irrefutable. I suspect she is likely to be bolstered by a segment of the transsexual population, and others who will support her in her cause, no matter how seemingly insurmountable the odds against her. In addition, she has a legal team that is apparently ready and willing to wage legal battle for her no matter what, possibly even pro-bono without charging her a fee and while incurring massive expenses for expert witness testimony, as part of a larger legal crusade for marriage rights regarding transsexual people. On the one hand it seems appropriate to wish them good luck, but on the other it also seems appropriate to be realistic about the lack of likelihood that they could prevail against such overwhelming odds.