gift presumption in Texas

2025Comm’n, 74 S.W.3d 377, 383 (Tex. 2002) (“[S]ection 52(a) does not prohibit payments to individuals, corporations, or associations so long as the statute requiring such payments: (1) serves a legitimate public purpose; and (2) affords a clear public benefit received in return.”). -4- 04-24-00300-CV Appellants, specifically demand: • [A] declaration that the provision in the [C]ity’s budget establishing the Reproductive Justice Fund is invalid because it is “inconsistent with . . . the general laws enacted by the Legislature of this State” under article XI, section 5 of the state constitution;[7

2025The Supreme Court of Texas has interpreted the gift clause to allow transfers of public funds to private entities so long as the payment: “(1) serves a legitimate public purpose; and (2) affords a clear public benefit received in return.” Texas Mu- nicipal League Intergovernmental Risk Pool v. Texas Workers’ Compensation Commis- sion, 74 S.W.3d 377, 383 (Tex. 2002).

2026However, in the context of a marital transfer, the Court held the grantor spouse can seek to overcome the gift presumption by putting on evidence -2- 04-25-00450-CV “clearly establishing there was no intention to make a gift.” Id. at 497 (citing Cockerham v. Cockerham, 527 S.W.2d 162, 168 (Tex. 1975)).

2024We cited many other authorities for the rule that when the gift presumption arises because “title to the land [is taken] in 82 Raymond, 190 S.W.3d at 81 (citing, among other authorities, Henry S. Miller, 452 S.W.2d at 431-432 ). 83 Henry S. Miller, 452 S.W.2d at 431 (emphasis added). 84 Id. (emphases added). 85 Id. (emphasis added). 86 See id. at 431-432 . 87 See 527 S.W.2d at 167 . 20 the name of husband and wife”, the presumption can be rebutted by evidence that no gift was intended. 88 Taken together, these cases 87 establish that the rule against parol evidence we applied in Henry S. Mille

2025Pet. for Writ of Mandamus at 15. 30 In short, the Gift Clause violation is fit for review because, even though the in- jury “has not yet occurred,” it “is sufficiently likely to happen to justify judicial in- tervention.” See Pearson, 624 F.3d at 684 (quoting Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153 (5th Cir. 1993)).

2025Pet. for Writ of Mandamus at 15. 30 In short, the Gift Clause violation is fit for review because, even though the in- jury “has not yet occurred,” it “is sufficiently likely to happen to justify judicial in- tervention.” See Pearson, 624 F.3d at 684 (quoting Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153 (5th Cir. 1993)).

2025See Duke Power Co. v. Carolina Envt’l Study Grp., Inc., 438 U.S. 59, 82 (1978).

2025See Duke Power Co. v. Carolina Envt’l Study Grp., Inc., 438 U.S. 59, 82 (1978).

2024P. 41.3; Mitschke v. Borromeo, 645 S.W.3d 251 , 258 (Tex. 2022). 6 See also Hampshire v. Hampshire, 485 S.W.2d 314, 316 (Tex. App.—Fort Worth 1972, no writ) (holding that a spouse’s denial of intending a gift, while not conclusive, creates a fact issue on whether the spouse intended to give the other spouse a one-half interest in the property); Fellows v. Fellows, No. 05- 98-00618-CV, 2000 Tex. App. LEXIS 4834 , at *4–5 (Tex. App.—Dallas July 24, 2000, no pet.) (holding husband overcame the gift presumption by testifying he did not intend gift to wife despite listing both names on the deed). 4

2024We cited many other authorities for the rule that when the gift presumption arises because “title to the land [is taken] in 82 Raymond, 190 S.W.3d at 81 (citing, among other authorities, Henry S. Miller, 452 S.W.2d at 431-432 ). 83 Henry S. Miller, 452 S.W.2d at 431 (emphasis added). 84 Id. (emphases added). 85 Id. (emphasis added). 86 See id. at 431-432 . 87 See 527 S.W.2d at 167 . 20 the name of husband and wife”, the presumption can be rebutted by evidence that no gift was intended. 88 Taken together, these cases 87 establish that the rule against parol evidence we applied in Henry S. Mille

2024We cited many other authorities for the rule that when the gift presumption arises because “title to the land [is taken] in 82 Raymond, 190 S.W.3d at 81 (citing, among other authorities, Henry S. Miller, 452 S.W.2d at 431-432 ). 83 Henry S. Miller, 452 S.W.2d at 431 (emphasis added). 84 Id. (emphases added). 85 Id. (emphasis added). 86 See id. at 431-432 . 87 See 527 S.W.2d at 167 . 20 the name of husband and wife”, the presumption can be rebutted by evidence that no gift was intended. 88 Taken together, these cases 87 establish that the rule against parol evidence we applied in Henry S. Mille

2024Indebtedness, 182 S.W.2d 908, 913 (Tex. 1944) (observing that certain funds were not granted for 26 As we discuss below, parties who execute a contract that (if obeyed) satisfies the Gift Clause could still be subject to a Gift Clause claim if their implementation of the contract indicates sufficient disregard of the contract’s requirements.

2024Indebtedness, 182 S.W.2d 908, 913 (Tex. 1944) (observing that certain funds were not granted for 26 As we discuss below, parties who execute a contract that (if obeyed) satisfies the Gift Clause could still be subject to a Gift Clause claim if their implementation of the contract indicates sufficient disregard of the contract’s requirements.

2022The article on which the Bopp Defendants rely does not state, as the Bopp Defendants represented, that “[i]n order for a donor to have standing to seek return of his donation, the gift instrument must explicitly provide that the gift was made conditionally and that the donor also retains the right to reverter.” 12 of reverter” is used interchangeably with “possibility of reverter,”7 which is a term of art for “the grantor’s right to fee ownership in the real property reverting to him if the condition terminating the determinable fee occurs.” El Dorado Land Co., L.P. v. City of McKinney, 395 S.

2000See Purser v. Purser, 604 S.W.2d 411, 414 (Tex.App.-Texarkana 1980, no writ).

1991See Neff v. Ulmer, 404 S.W.2d 644, 647 (Tex.Civ.App. —Amarillo 1966, writ ref d n.r.e.) (Parents convey land to their child and take $5,000.00 note as consideration; gift presumption prevails because deed recited that the property was child’s separate property and note was to be paid from child’s separate estate.) A gift is a transfer of property made voluntarily and gratuitously, without consideration.