Tag: Texas


Because the Texas Civil Appeals Court issued two separate opinions from the same case, and because the case may generate some interest, two reports on the same case seemed most efficient.

Texas by statute limits lawsuits that may involve “exercise of the right of free speech, right to petition, or right of association.” Tex. Civ. Prac. & Rem. Code Ann. §27.003(a). In order to present a claim of defamation allowable under the statute, a plaintiff must present evidence that supports the elements of their claim sufficient to present a viable claim.

In Diocese of Lubbock v Guerrero, Slip Op. (Tex. Civ. App. 7th, 2019), in order to present a defamation claim sufficient to overcome the protection of a free speech claim, the Claimant Guerrero had to prove there was an exercise of free speech. Naming him on the publicly disseminated list of sex offenders “credibly accused” by the diocese qualified as free speech. The list was a “communication.” The list addressed a matter of “public concern.” The elements and proof of the defamation claim was summarized in our prior post on this case and the appellate court deemed it sufficient to state a cause of action. The diocese admitted it had no evidence the Claimant sexually assaulted someone under the age of 18 even though the Claimant was listed among those who allegedly had done so. The allegation against Claimant was that he engaged in sexual misconduct with an adult. The reason the adult was classified as a victim, such as inability to consent or other possible claims, was not recited in the opinion. While Claimant was allowed to pursue his defamation claim at the trial court level, the appellate court also dismissed the claim of intentional infliction of emotional distress. Claimant had no evidence the diocese intended to emotionally harm him. The diocese defined “minor” as anyone not capable of giving consent. Sanctions and attorney fees might be awarded against Claimant on the emotional distress claim on remand to the trial court.

While the cost of the conspiracy of silence, and possibly tolerance, was high, that does not automatically mean that transparency would not also be costly. Most likely, churches will chose to settle with credible victims and litigate with alleged perpetrators. A few such trials might be the next step, and cost, of transparency.


The Roman Catholic Church set off on a bold path when it decided to publicly list by name the persons it determined where “credibly” accused of sexual misconduct while holding church office. Such public accusations needed to be right and true in order to avoid defamation claims by alleged perpetrators.  Those lawsuits have started.

In the case of In Re Diocese of Lubbock, Slip Op. (Tex. Civ. App. 7th, 2019), the trial court refused to dismiss the defamation claim by a former deacon listed publicly by the diocese as a sex offender. However, while lumped in with others accused of sexual misconduct with children, the claim against the former deacon was sexual misconduct with an adult. The appellate court, considering an extra-ordinary writ challenging the action of the trial court, affirmed the trial court. The appellate court at length recited that internal accusation by a church of a member in accord with the church disciplinary religious doctrine could not be considered by a court because it was shielded by the Ecclesiastical Abstention Doctrine. But, once the accusation was made public by the church, and not merely leaked inadvertently or without authorization, the Ecclesiastical Abstention Doctrine no longer applied. The case was remanded for further proceedings.

It would be interesting to know if denominations or churches that have decided to use publicly disclosed lists of “credibly accused” sexual offenders did so calculating the potential for additional claims. If so, the risk analysis may have led to them to believe the risk was less than the cost of lack of transparency. Truth is a defense in a defamation case but “credibly accused” may or may not be enough. Most denominations and churches issuing such lists have done so only after qualified counsel consumed many hours of billable time to assess the claims. The reported case may put that to the test.


When the author of this website began practicing, it was the habit to troop over to the courthouse every Friday to attend motion docket.  The primary motion heard on those days was the demurrer.  A demurrer was like a motion to dismiss but only raised the issue of sufficiency of the petition to state a cause of action.  Defendants often filed them to obtain further time to investigate and answer, which meant they were often autonomically overruled.  When they were actually heard, the court would read the petition or complaint and if the court thought enough facts were pled to state a cause of action overruled the demurrer.  Most were overruled but occasionally the court would act as a gatekeeper and require filing of an amended petition.  Demurrers were abolished soon thereafter as the state migrated to its clone of the Federal Rules of Civil Procedure.  Nevertheless, vestigial remnants of such doctrines persist.  The other rule still in effect in this state is that the order of the trial court will not contain reasons for the decision.  To enter an order that “sets forth reasons” is called a “speaking journal entry.”  An appellate court may disregard it.  If the parties want findings of fact and conclusions of law, they have to request them in advance of any ruling.  However, some appellate courts still have similar rules, for good reasons or out of habit.

In St. John Missionary Baptist Church v Flakes, Slip Op. (Tex. Civ. App. 2018), the congregational vote to terminate the pastor was not accepted by the church board members.  The pastor and the board continued to handle the assets of the church, including taking out a mortgage of almost a million dollars and preparing to sell other assets.  Some of the members filed suit to seek an injunction.  The trial court granted a motion to dismiss and plea to the jurisdiction (Texas has not adopted a clone of the Federal Rules of Civil Procedure).  The trial court’s order was a single sentence that referenced only one of the grounds put forward to support the motion.  The appeal was directed at the only grounds set forth in the single sentence order.  The appellate court, however, simply affirmed the trial court because there was no challenge to the other grounds for the motion to dismiss raised by the proponent of that motion even though it was also not mentioned by the trial court’s order.  That other ground was the Ecclesiastical Abstention Doctrine.  The appellate court ruled that without a challenge before it of an argument made by the movant in the trial court it was waived.  One paragraph containing a legal authority or two would have placed it before the appellate court.  The dissent was convinced that ordering additional briefing would not have been against the court’s rules.

Followers of Ecclesiastical Abstention Doctrine cases would immediately recognize that while a court because of the Ministerial Abstention Doctrine would not entertain an employment case, the exception might be if the employment case arose only from a violation of the church organizational documents in the process of hiring or termination.  This seems especially true when the procedural issue arises from a congregation-controlled church.  Of course, the other lesson is for counsel to brief all the arguments raised even if counsel believes some arguments deserve only cursory treatment.


Church splits in hierarchical churches almost uniformly end badly for the insurgents.  The only exceptions are when church governing documents, including incorporation documents, and land titles do not consistently tie the ownership to the denomination rather than the local group of congregations or the local congregation.  Because church property in hierarchical churches is typically amassed over many years and many generations of members, the local church members often cannot truthfully say they alone bought and built it.  The denomination must admit that offerings made by members, over multiple generations of members, bought and built the church property in question and that the denomination at best is a trustee for them.

In The Episcopal Church v Salazar, Slip Op. (Tex. Civ. App. 2018), the latest appellate decision in a church split that began in 2008 (or possibly earlier) built upon a prior Texas Supreme Court Decision in Episcopal Diocese of Fort Worth v Episcopal Church, 422 SW 3d 646 (Tex. 2013), cert den., 135 S. Ct. 435 (2014) and the trial court proceedings that followed the Supreme Court’s decision.  To reach this new decision, the latest intermediate appellate opinion only sued over 50,000 words in 177 pages and 114 footnotes.  Thus, in a blog post, the reader should expect only the most summary of coverage.  It should also be noted that in the Supreme Court case, the Texas Supreme Court adopted the neutral principles of law doctrine so that a civil court could determine ownership of property and other matters important to the State without infringing on ecclesiastical issues.  Given the new ground to plow, the length of the intermediate appellate decision about which this blog reports is at least understandable.  It contained both denominational and diocesan legal histories as well as documented the evolution of neutral principles doctrine.

The trial court on remand from the Supreme Court considered the evidence and determined by summary judgment that the right to control the non-profit corporation that was the shell of the diocese was and remained under the control of the denomination.  This church split, like many of this type, began with a theological dispute which resulted in an attempt by some member organizations or local churches to “disaffiliate.”  When “disaffiliation” failed because the organizational documents of the denomination and the local organizations and churches would not support it, the next effort was to attempt to have friendlies elected to the governing board of the non-profit corporation and to displace board members loyal to the denomination (if there were any serving).  But, in addition to organizations and churches that tried to “disaffiliate,” the trial court held that the insurgents elected to the board were disqualified from election from inception due to their own “disaffiliation” which ended their memberships under the governing documents.

The lesson for insurgents, and warning for denominations, is that if insurgents do not “disaffiliate” but remain members in good standing, and are elected to the board of the non-profit corporation that is the shell for a diocese or a local church, that board will have effective control of the assets.  “Loyalty oaths” have not worked, as history has taught, but restricting the power of the board to financially alienate itself from the denomination could blunt or contain the power of insurgents.  Indeed, the reason denominations have not used this technique, absent internal political necessities, was to preserve the borrowing power of the local organizations and churches to acquire church property.  The necessity of that practice may be sufficiently diminished in more mature denominations to allow greater financial oversight by the denomination.