the Episcopal Church, the Local Episcopal Parties, the Local Episcopal Congregations, and the Most Rev. Katharine Jefferts Schori v. Franklin Salazar and Intervening Congregations

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-15-00220-CV

THE EPISCOPAL CHURCH, THE APPELLANTS
LOCAL EPISCOPAL PARTIES,
THE LOCAL EPISCOPAL
CONGREGATIONS, AND THE
MOST REV. KATHARINE
JEFFERTS SCHORI

V.

FRANKLIN SALAZAR AND APPELLEES
INTERVENING CONGREGATIONS

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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 141-252083-11

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OPINION

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 I. Introduction

The parties’ long-running dispute involves, among other things, title to and

possession of church property. 1 In 2014, on a direct appeal, 2 the Supreme Court

of Texas identified the appropriate methodology to determine the property

ownership issue—neutral principles of law—and remanded this case to the trial

court. See Episcopal Diocese of Fort Worth v. Episcopal Church, 422 S.W.3d 646,

647 (Tex. 2013), cert. denied, 135 S. Ct. 435 (2014); see also Masterson v.

Diocese of Nw. Tex., 422 S.W.3d 594, 596, 608 (Tex. 2013), cert. denied, 135

S. Ct. 435 (2014). No one disputes that the Corporation of the Episcopal Diocese

of Fort Worth (the Corporation) holds legal title to the property or that the

Corporation holds the property in trust for the Episcopal Diocese of Fort Worth

(EDFW). Rather, at its heart, the parties’ dispute is over who has the right to

control the Corporation and EDFW as legal entities.

In a single issue containing multiple sub-issues, Appellants The Episcopal

Church (TEC), the Most Reverend Katharine Jefferts Schori, The Local Episcopal

Parties, and The Local Episcopal Congregations (collectively, the TEC parties)

1
For a review of how such disputes have affected jurisprudence and religious
groups over the past decade, see Michael W. McConnell & Luke W. Goodrich, On
Resolving Church Property Disputes, 58 Ariz. L. Rev. 307, 308–10 (2016)
(“Hundreds of local congregations have voted to withdraw from these national
denominations, raising the question: Who owns the church property?” (footnote
omitted)).
2
See Tex. Gov’t Code Ann. § 22.001(c) (West Supp. 2017).

2
appeal the trial court’s summary judgment for Appellees Franklin Salazar and the

Intervening Congregations (collectively, Appellees). 3

For ease in navigating this highly complex case, we set forth the following

roadmap: Part II of this opinion contains EDFW’s history and the procedural

background of this case as pertinent to its disposition. Part III sets out the standard

of review and the case’s legal framework, starting with the binding precedent of

the United States Supreme Court and the Supreme Court of Texas and followed

by persuasive authorities that inform our judgment before addressing the

applicable state substantive law on associations, corporations, and trusts and then

applying these authorities to the case’s dispositive issues in parts III.B.2–B.4. Part

IV sets out in full our conclusion, which is that we affirm the trial court’s judgment

in part and reverse it in part and remand the case to the trial court for further

proceedings.

II. Background

Religious schisms that give rise to property disputes are not

unprecedented. 4 TEC, for example, was founded in 1789 after its revolutionary

3
The Appellees include Bishop Jack Leo Iker, Jo Ann Patton, Walter
Virden III, Rod Barber, and Chad Bates.
4
See McConnell & Goodrich, 58 Ariz. L. Rev. at 311 & n.11 (stating that
church property disputes are as old as any church and referring to an
excommunicated bishop’s refusal in 269 A.D. to relinquish control of a church
building and the early church’s subsequent appeal to the Roman emperor for
assistance).

3
constituents broke away from the Church of England. See Episcopal Diocese, 422

S.W.3d at 647; Bennison v. Sharp, 329 N.W.2d 466, 468 (Mich. Ct. App. 1982);

Hon. John E. Fennelly, Property Disputes and Religious Schisms: Who is the

Church?, 9 St. Thomas L. Rev. 319, 347 n.251 (1997). The Church of England, in

turn, began with Henry VIII’s break with the Roman Catholic Church in 1534.

Fennelly, 9 St. Thomas L. Rev. at 347 & n.251 (referencing Protestant Episcopal

Church v. Barker, 171 Cal. Rptr. 541, 544 (Cal. Dist. Ct. App.), cert. denied, 454

U.S. 864 (1981)). And, as observed by the United States Supreme Court, “14

autocephalous hierarchical churches . . . came into existence following the schism

of the universal Christian church in 1054.” Serbian E. Orthodox Diocese for U.S.

of Am. & Canada v. Milivojevich, 426 U.S. 696, 699, 96 S. Ct. 2372, 2376 (1976);

see also Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S.

94, 100, 73 S. Ct. 143, 146 (1952) (“The schism of 1054 A.D. split the Universal

Church into those of the East and the West.”).

A. The Hierarchical Church

TEC has been identified by our supreme court as a “hierarchical” type of

religious organization, composed of tiers, 5

[t]he first and highest [of which] is the General Convention. The
General Convention consists of representatives from each diocese

5
Factors Texas courts have used to characterize a church as hierarchical
include (1) the local church’s affiliation with a parent church; (2) an ascending order
of ecclesiastical judicatories in which the local church’s government is subject to
review and control by higher authorities; (3) subjugation of the local church to the
jurisdiction of a parent church or to a constitution promulgated by the parent
church; (4) a charter from the parent church governing the affairs of the local

4
 and most of TEC’s bishops. It adopts and amends TEC’s constitution
and canons. The second tier is comprised of regional, geographically
defined dioceses.[6] Dioceses are governed by their own conventions.
Each diocese’s convention adopts and amends its own constitution
and canons[] but must accede to TEC’s constitution and canons. The
third tier is comprised of local congregations. Local congregations are
classified as parishes, missions, or congregations.[7]

church and specifying ownership of local church property; (5) the repository of legal
title; and (6) the licensing or ordination of local ministers by the parent church.
Green v. Westgate Apostolic Church, 808 S.W.2d 547, 550–51 (Tex. App.—Austin
1991, writ denied) (citing Templo Ebenezer, Inc. v. Evangelical Assemblies, Inc.,
752 S.W.2d 197, 198–99 (Tex. App.—Amarillo 1988, no writ)).

“The terms hierarchical and congregational are poles on a continuum along
which church organizations fall.” Id. at 551. A congregational church is governed
primarily by the will of the local assembly, while a hierarchical church submits
certain issues to the rules and control of a larger religious organization. Id. A
congregational church is independent of any other ecclesiastical association, owes
no obligation to any higher authority, and “totally controls its own destiny.” Templo
Ebenezer, Inc., 752 S.W.2d at 198. Because a congregational form of church
government vests the ultimate decision-making authority in its members, if the
controversy cannot be decided by the application of neutral principles, then the
court defers to the majority vote of the congregation. Libhart v. Copeland, 949
S.W.2d 783, 793 (Tex. App.—Waco 1997, no writ) (explaining ecclesiastical
deference in congregational church context).
6
The record reflects that TEC also groups its dioceses into provinces, each
of which contains a synod consisting of a house of bishops and a house of
deputies. While many of the provinces are geographically determined, some of
TEC’s provinces consist of TEC dioceses outside of the United States.
7
This framework ignores TEC’s self-identification as a constituent member
of an even larger community, which TEC acknowledges in the preamble to its
constitution, stating,

The Protestant Episcopal Church in the United States of America,
otherwise known as The Episcopal Church (which name is hereby
recognized as also designating the Church), is a constituent member
of the Anglican Communion, a Fellowship with the One, Holy,
Catholic, and Apostolic Church, of those duly constituted Dioceses,
Provinces, and regional Churches in communion with the See of

5
Episcopal Diocese, 422 S.W.3d at 647–48; Masterson, 422 S.W.3d at 608 (“We

agree with the court of appeals that the record conclusively shows TEC is a

hierarchical organization.”).

TEC’s constitution and canons “establish the structure of the denomination

and rules for how it operates.” Masterson, 422 S.W.3d at 600. As set out in its

constitution and canons, TEC’s Presiding Bishop is its “chief pastor,” elected by

the General Convention—consisting of the House of Bishops and the House of

Deputies—to a multi-year term of office and “charged with responsibility for

leadership in” initiating, developing, and implementing TEC’s policy and strategy.

In addition to the Presiding Bishop’s policy and leadership tasks, he or she also

presides over meetings of TEC’s House of Bishops and performs ecclesiastical

tasks, including, “[i]n the event of an Episcopal vacancy” in a diocese, consulting

with that diocese’s “Ecclesiastical Authority to ensure that adequate interim

Episcopal Services are provided.” The Presiding Bishop “shall perform such other

functions as shall be prescribed in” TEC’s canons and may delegate some duties

and responsibilities to officers in the General Convention’s Executive Council,

which is responsible for carrying out the General Convention’s programs and

Canterbury, upholding and propagating the historic Faith and Order
as set forth in the Book of Common Prayer. [Emphasis added.]

While occasional references are made to the Anglican Communion throughout the
record of this case, no one has explained what form of organization is involved in
its membership, and no property interests are asserted on its behalf.

6
policies and exercises “powers conferred upon it by Canon, and such further

powers as may be designated by the General Convention.” The Presiding Bishop

is the chair and president of the Executive Council.

The bishop in each diocese is chosen by the rules prescribed by the

convention of that diocese but cannot be ordained and consecrated without the

consent of a majority of the standing committees of all of the dioceses and without

the consent of a majority of TEC’s bishops. 8 If one of TEC’s bishops abandons

communion with TEC by open renunciation, formal admission into any religious

body not in communion with TEC, or other activities, subject to the procedures set

out in TEC’s canons and the consent of the majority of TEC’s bishops, the

Presiding Bishop may depose that bishop. 9

The convention of each diocese must appoint a standing committee, which

acts as the council of advice for the diocese’s bishop or substitutes as the diocese’s

ecclesiastical authority if there is no bishop canonically authorized to act. Under

TEC’s canons, a diocese without a bishop may, by an act of its convention and in

consultation with the Presiding Bishop, “be placed under the provisional charge

8
If a majority of the diocesan standing committees or a majority of TEC’s
bishops do not consent to the bishop’s election within 120 days from the date of
notification of the election, the Presiding Bishop “shall declare the election null and
void,” and the diocesan convention can then proceed to a new election.
9
TEC’s governing documents define “Deposition” as “a Sentence by which
a Member of the Clergy is deprived of the right to exercise the gifts and spiritual
authority of God’s word and sacraments conferred at ordination.”

7
and authority of a bishop of another diocese or of a resigned bishop, who shall by

that act be authorized to exercise all the duties and offices of the Bishop of the

Diocese until a Bishop is elected and ordained” for that diocese or until the act of

the diocese’s convention is revoked.

Each diocese’s secretary of convention has the responsibility to forward to

the secretary of TEC’s House of Deputies a copy of the latest journal of the

diocesan convention. Each diocese’s bishop has the duty to forward to TEC’s

Recorder an annual report certifying information such as the names of clergy

canonically resident in the diocese and their status, including suspension, removal,

deposition, or restoration.

TEC’s Executive Council sets a budget that, once approved by TEC’s

General Convention, is sent to each diocese, setting out each diocese’s

proportionate part of estimated expenditures. Each diocese then notifies each

parish and mission therein of its individual “apportionment” to be raised, “which

shall include both its share of the proposed Diocesan Budget and its share of the

objective apportioned to the Diocese by the Executive Council.” 10 Each diocese

accounts annually to the Executive Council for its receipts and distributions, 11 and

10
The amount of “apportionment” suggested by the Executive Council is
based on the income of the parishes in the dioceses, and TEC uses these funds
for administration and to carry out the Church’s programs nationally.
11
TEC makes loans to facilitate the acquisition of real property and
construction of church buildings through various programs and entities.

8
each diocese submits an annual report that contains statistical information

concerning the diocese’s parishes and missions and other “relevant information.”

TEC established and administers a pension fund for TEC’s clergy supported by

the royalties from publications authorized by the General Convention and by

collections levied upon “all Parishes, Missions, and other ecclesiastical

organizations or bodies subject to the authority of this Church.”

A parish, part of the third tier identified by the supreme court, is governed by

a rector or priest-in-charge and a vestry comprised of lay persons elected by parish

members. Masterson, 422 S.W.3d at 600. Members of the vestry must meet

certain qualifications, including committing to “conform to the doctrine, discipline

and worship of The Episcopal Church.” Id. To be accepted into union with TEC,

a local congregation must accede to and agree to be subject to the constitutions

and canons of both TEC and the diocese in which the congregation is located. 12

Id.

12
By way of illustration, the record contains a copy of a March 15, 2002 letter
from Bishop Iker to the rector, wardens, and vestry of one of EDFW’s churches,
informing them that “[n]either the Episcopal Church nor this Diocese are
congregational in nature” and that the vestry accordingly could not fire their
congregation’s rector. Rather, he advised that the vestry and rector were to work
with each other “until such time as the relationship is broken by the death or
resignation of the priest” or is dissolved by the bishop “acting with the counsel of
the Diocesan Standing Committee.”

The record also contains the memoir of Rector Emeritus William A.
Komstedt, who observed that “in the Bible Belt, most people have a congregational
understanding of church administration” and that he was frequently asked why the
people of the St. Francis Mission would pay for land and buildings that EDFW
would end up owning. He wrote that “[i]n time, most warmed to the idea after they

9
 Every parish and other congregation prepares an annual report to the bishop

of its diocese, who then sends a copy to TEC’s Executive Council. The annual

report covers not only the number of baptisms, confirmations, marriages, and

burials during the year and the total number of baptized persons and

communicants in good standing but also a summary of receipts and expenditures

and “such other relevant information as is needed to secure an adequate view of

the state of this Church, as required by the approved form.” At the time that EDFW

joined TEC, “other relevant information” included a statement of the real and

personal property held by each parish with an appraisal of its value, the parish’s

indebtedness for the property, and the amount of insurance carried on the

property.

B. The Episcopal Diocese of Fort Worth (EDFW)

1. Diocese’s Origins

In 1849, “[t]he Church in the State of Texas accede[d] to the Constitution of

the Protestant Episcopal Church in the United States of America” and

“acknowledg[ed] its authority,” and in 1850, the Diocese of Texas was admitted

into union with TEC. In 1874, a missionary bishop of Northern Texas was elected

and consecrated and the Diocese of Texas was delimited to set apart the area to

were taught that the diocese was like a house and its missions and parishes were
like rooms in it.” He also described the efforts taken by the mission’s congregation
to pay off the $31,500 no-interest, five-year loan obtained from one of TEC’s
programs, wiping out $21,000 of the debt in one night by holding a gala Barbeque,
Country Dance, and Wild West show.

10
the north and west as the Missionary District of Northern Texas. Four years later,

the 1878 Journal of the Fourth Annual Convocation of the Protestant Episcopal

Church in the Missionary District of Northern Texas set out the form for a

constitution of a parish acceding to the TEC and diocesan constitutions and

canons:

This Parish, as a constituent part of the Protestant Episcopal
Church in the Missionary District of Northern Texas, expressly
accedes to, recognizes and adopts the Constitution, Canons,
Doctrines, Discipline and Worship of the Protestant Episcopal Church
in the United States of America, and the Constitution and Canons of
the Protestant Episcopal Church in this jurisdiction, and
acknowledges their authority accordingly.

In 1893, TEC’s constitution provided that no churches or chapels would be

consecrated until the bishop sufficiently certified that the property was “secured,

by the terms of the devise, or deed, or subscription by which they are given, from

the danger of alienation, either in whole or in part, from those who profess and

practise the doctrine, discipline, and worship of the Protestant Episcopal Church

in the United States of America.”

Two years later, the Diocese of Dallas held its first diocesan convention. The

preamble to its originating December 1895 constitution states,

We, the Clergy and Laity, of the Protestant Episcopal Church,
in the United States of America, resident in that portion of the State of
Texas which, by the General Convention of said Church, was in the
year A.D. 1874 set off as the Missionary District of Northern Texas,
having been convened by the Missionary Bishop of Northern Texas,
for the purpose of organizing a Diocese whose territorial limits shall
be co-extensive with those of said Missionary District, do now, by and
with the consent of said Bishop and in order to effect the organization
of said Diocese, ordain and establish this Constitution.

11
 Over half a century later, at its 53rd annual convention held in 1948, the

Diocese of Dallas amended its constitution’s article 13, “On Title to Church

Property.” That article provided that title to all real property acquired “for the use

of the Church in this Diocese,” including the real property of all parishes and

missions, “shall be vested in the Bishop and his successors in office, in trust.” 13

More than three decades after that, in June 1982, the Diocese of Dallas held

a special convention to consider a resolution to divide itself and, if approved, to

request that TEC’s General Convention ratify the division. 14 The resolution

passed.

TEC held its General Convention that same year, from September 5 to 15,

1982. On the fourth day, the motion to adopt Resolution B-18, providing for the

13
Alexander C. Garrett, who had been the Missionary Bishop of Northern
Texas, served as the Bishop of Dallas from 1874 to 1924 and was succeeded in
that office by Harry T. Moore (who served from 1924 to 1946), Charles Avery
Mason, (who served from 1946 to 1970), and A. Donald Davies (who served from
1970 until 1982, when Bishop Davies opted to become the bishop of the newly
formed EDFW). Clarence C. Pope served in the office of EDFW’s bishop from
1986 until 1994, when he retired to become a Roman Catholic. Bishop Iker was
elected by EDFW’s convention as bishop coadjutor in 1992 but was not
consecrated until 1993, when he received consent from TEC’s other dioceses.
14
Under Article V of TEC’s constitution, one of the three ways that a new
diocese may be formed is through the division of an existing diocese with the
consent of the General Convention “and under such conditions as the General
Convention shall prescribe by General Canon or Canons.” Under TEC’s
constitution, a new diocese may also be formed through the joining of two or more
dioceses or parts thereof or from mission territory, which is “an unorganized area
evangelized” by TEC but not yet included in any of TEC’s dioceses.

12
division of the Diocese of Dallas, carried in the House of Bishops. On the seventh

day, the House of Deputies concurred, ratifying the division to create EDFW

(known at that time only as the “Western Diocese”) based on, among other things,

the certificate of the Diocese of Dallas’s Chancellor that all of the requisite

documents had been executed and “that all of the appropriate and pertinent

provisions of the Constitution and Canons of the General Convention of the

Episcopal Church in the USA and the Constitution and Canons of the Diocese of

Dallas have been fully complied with in respect of this submission.”

The October 1982 Annual Meeting Journal of the Diocese of Dallas reflected

that seventy-two years after the division issue was first raised in 1910, the Diocese

of Dallas was finally sharing “in the trauma and excitement of such a division,”

resulting, at least in part, from the area’s significant population growth over time

and the size of the diocese (larger than 43 other dioceses, including some

dioceses that covered entire states). 15 Bishop Davies observed that the General

Convention had ratified the action of the diocesan convention when it voted to

divide the Diocese of Dallas, that the new diocese planned to come into existence

as of January 1, 1983, with the filing of its documents with the Secretary of TEC’s

General Convention, and that the new diocese would hold its primary convention

15
In his address to the diocesan convention, Bishop Davies noted that the
“twin cities of Dallas and Fort Worth are growing like young giants” and that “[t]he
little towns in between are stretching out their steel fingers with emerald rings
strung all along to bind each other together in bonds of common life.”

13
on November 13, 1982, to name itself, organize committees and officers, accede

to the national constitution and charters, adopt its own constitution and charters,

and implement a budget.

One of the resolutions promulgated at the Diocese of Dallas’s October 1982

Annual Meeting declared that “[t]itle to all real property . . . located within the

territorial boundaries of the western diocese shall be transferred to the western

diocese.” 16 During the meeting, the Diocese of Dallas’s Chancellor was granted

permission to initiate and conduct for the diocese “such action in the courts of the

State of Texas as may be necessary and prudent for the accomplishment of the

goals and purposes of the foregoing resolution, including partition actions, cy-pres

actions, and other actions under the laws of Texas or the United States.”

Additionally, the resolution provided that the division of all corporations,

foundations, and funds “shall be made subject to the terms, conditions[,] and

purposes of the instruments establishing them and any amendments thereto.”

EDFW adopted its constitution and canons on November 13, 1982. It was

admitted into union with TEC on December 31, 1982.

16
The resolution provided that title to all such real property would be
transferred except for some small oil and gas interests owned by Episcopal Funds,
Inc., and the ad valorem tax liability of Camp Crucis, which would be divided 65/35
between the two dioceses.

14
 2. 1983–1990

Article 13 of EDFW’s constitution provided that “title to all real estate

acquired for the use of the Church in this Diocese . . . shall be held subject to

control of the Church in the Episcopal Diocese of Fort Worth acting by and through

a corporation” and that “[a]ll such property as well as all property hereafter acquired

for the use of the Church and the Diocese, including parishes and missions, shall

be vested in [the] Corporation of the Episcopal Diocese of Fort Worth.” 17 EDFW’s

canons established the parameters for the Corporation’s management. See

Episcopal Diocese, 422 S.W.3d at 648. Specifically, canon 11, “Corporation of the

Episcopal Diocese of Fort Worth,” set out,

Sec. 11.1 Corporation of the Episcopal Diocese of Fort Worth
is a non-profit benevolent[18] and charitable organization organized
under Texas laws, also known as the “Diocesan Corporation”. In
addition to its regular powers, it may receive, hold, manage and
administer funds and properties acquired by gift or by will or otherwise
for the use and benefit of the Diocese and any Diocesan Institutions.

Sec. 11.2 The management of its affairs shall be conducted
and administered by a Board of Trustees of five (5) elected members,
all of whom are either Lay persons[19] in good standing of a parish or
mission in the Diocese, or members of the Clergy canonically resident
in the Diocese, in addition to the Bishop of the Diocese who shall
serve as Chairman of the Board or may designate the President or
other officer of the corporation to serve as such. The Board of
Trustees shall have the power and authority to conduct the affairs of
said corporation in accordance with its charter and by-laws and in

17
The Diocese of Dallas adopted a similar provision in December 1983.
18
“Benevolent” was removed from the canon in 1989.
19
“Persons” was changed to “communicants” in 1989.

15
 accordance with the Constitution and Canons of the Diocese from
time to time adopted.

Sec. 11.3 One member of the Board of Trustees shall be
elected at each Annual Convention and each member shall serve a
term of five (5) years. The terms of members shall be so arranged
that the term of only one (1) member shall expire annually. The Board
of Trustees shall fill any vacancy which occurs on the Board until the
annual election. The Bishop shall nominate the members of the Board
of Trustees.

Sec. 11.4 The Board of Trustees shall adopt its own by-laws
and shall elect such officers as its by-laws may require.

Sec. 11.5 The Board of Trustees shall submit a report at each
Annual Convention covering its operations for the preceding fiscal
year and showing its financial condition. If and when required by the
Standing Committee of the Diocese, the Board of Trustees shall make
such additional reports and furnish such additional information as may
[be][20] requested. The books and records of the Board of Trustees
shall at all times be open for inspection and examination by the
Standing Committee of the Diocese or its representatives.

EDFW filed articles of incorporation for the Corporation on February 28,

1983. The 1983 articles established that the Corporation was a nonprofit

corporation of perpetual duration with the following purposes set out as follows, in

pertinent part:

(1) To receive and maintain a fund or funds or real or personal
property, or both, from any source including all real property acquired
for the use of the Episcopal Diocese of Fort Worth as well as the real
property of all parishes, missions and diocesan institutions. Subject
to the limitations and restrictions hereinafter set forth, to use and apply
the whole or any part of the income therefrom and the principal thereof
exclusively for charitable, religious, scientific, literary, or educational
purposes either directly or by contributions to organizations that

20
By 1989, this typographical error in the original 1982 canon had been
corrected.

16
 qualify as exempt organizations under Section 501(c)(3) of the
Internal Revenue Code and its Regulations as they now exist or as
they may hereafter be amended.

(2) The property so held pursuant to (1) supra shall be administered
in accordance with the Constitution and Canons of the Episcopal
Diocese of Fort Worth as they now exist or as they may hereafter be
amended.

The articles also set out that the election of the Corporation’s board of directors

(“Board of Trustees”) and their terms of office “shall be fixed by the by-laws of the

corporation as the same may be adopted and from time to time amended.”

The Corporation adopted its bylaws on May 17, 1983. Article I, “Authority,”

states,

Section 1. General The affairs of this nonprofit corporation
shall be conducted in conformity with the Constitution and Canons of
the Episcopal Church in the United States of America and the
Constitution and Canons of the Episcopal Diocese of Fort Worth, as
they may be amended or supplemented from time to time by the
General Convention of the Church or by the Convention of the
Diocese. In the event of any conflict between these Bylaws and any
part or all of said Constitution or Canons, the latter shall control.

The bylaws conferred general power to perform all lawful acts and things “as are

not by statute or by the Articles of Incorporation or by these Bylaws prohibited.”

With regard to the number and election of the board of directors and their terms of

office, the bylaws paralleled EDFW’s constitutional and canonical provisions,

stating,

The Bishop of the Diocese of Fort Worth shall be the Chairman of the
Board of Trustees of the Diocesan Corporation. In addition to the
Bishop the number of elected Trustees which shall constitute the
Board shall be five. The term of office for each elected Trustee shall
be for five years and each Trustee shall hold office from the date of

17
 his election until his successor shall have been duly elected and
qualified, or until his death, resignation, disqualification or removal.
There shall be elected at each annual meeting one Trustee. Trustees
may be either lay persons in good standing of a parish or mission in
the Diocese of Fort Worth, or members of the Clergy canonically
resident within the Diocese, in addition to the Bishop.

See Tex. Bus. Orgs. Code Ann. § 22.207 (West 2012) (“Election and Control by

Certain Entities”). The bylaws also provided for holding regular meetings and

special meetings whenever called by the President—designated in the bylaws as

the chairman of the board—“or by any two Trustees.” They further provided that

the quorum necessary to transact business would be not less than a majority of

the total number of trustees then acting and set forth the procedures for

resignation, board vacancies, and the removal of trustees: “Any Trustee of the

Diocesan Corporation may be removed by the Bishop of the Diocese of Fort

Worth.” The bylaws also included a provision for amendment, stating,

These Bylaws may be amended, altered, changed, added to or
repealed, in whole or in part, by the affirmative vote of a majority of
the total number of Trustees at any regular or special meeting of the
Board, if notice of the proposed change is included in the notice of
such meeting.

In 1984, a civil court judgment transferred part of the Diocese of Dallas’s real

and personal property to EDFW and vested legal title of the property in the

Corporation, 21 except for certain assets for which the Diocese of Dallas’s bishop

and his successors had been designated as trustee; those assets transferred to

21
The 1984 judgment likewise vested legal title of the property remaining
with the Diocese of Dallas in the Corporation of the Episcopal Diocese of Dallas.

18
EDFW’s bishop as trustee and to his successors in office. 22 Episcopal Diocese,

422 S.W.3d at 648.

3. 1991–2005

Less than ten years after its admission into union with TEC, conflicts based

on differing theological views began to arise between both TEC and EDFW and

EDFW and some of its congregations.

In 1991, the Episcopal Church of St. Mary the Virgin withdrew from TEC and

EDFW to join a Roman Catholic Diocese. 23 And at a standing committee meeting,

after TEC assigned an apportionment of approximately $230,000 to EDFW, the

committee noted that “the withholding of apportionment is regarded by some as

sanctions against immorality.” The committee agreed to allow the individual

parishes within EDFW to choose whether to fund TEC’s Executive Council’s

activities by apportionment through vestry action indicating whether the individual

22
The Diocese of Dallas and its diocesan corporation, EDFW and its
diocesan corporation, and the Dioceses’ bishops as trustees were parties to the
1984 judgment. In the 1984 judgment, the trial court stated, “Nothing in this
judgment shall be deemed to deal with, or otherwise affect, properties, real or
personal, disposed of under testamentary or inter vivos gift executed or effective
prior to December 31, 1982, which bequest is to the Diocese of Dallas or the
Bishop thereof,” but it also noted that the two dioceses had resolved that their
“various assets, properties, investments, trusts and related matters” would be
divided in an equitable manner.
23
EDFW’s standing committee unanimously recommended that the parish
be allowed to withdraw upon receipt and review of proper documentation, and in
1993, the standing committee approved the Roman Catholic Diocese’s board of
trustees’ resolution to pay off the loan on the former Episcopal parish’s property
and to transfer title to the property to the Roman Catholic Diocese.

19
parish’s percentage of the diocesan assessment would be forwarded to TEC’s

Executive Council or should remain under EDFW’s control.

During the 1990s, the standing committee received a letter from another

diocese that “encouraged the Diocese of Fort Worth to remain in the Episcopal

Church” and other correspondence “from those dioceses questioning the

intentions of [EDFW] of remaining in the Episcopal Church in the United States of

America and the reasons why [EDFW] had reduced its apportionment to the

Executive Council’s program.”

In 1992, the rector and vestry of Holy Apostles Episcopal Church, one of

EDFW’s parishes, announced the parish’s intent to seek membership in the

Antiochean Orthodox Church and to sever its relationship with EDFW, TEC, and

“the rest of the Anglican Communion.” 24 Around then, EDFW’s standing

committee discussed developing a “future strategy regarding a parish that may try

to leave and take diocesan property with them,” and in early 1994, the committee

finalized the membership of a “Protection of Diocesan Property Committee.” 25 The

24
The standing committee agreed that the Holy Apostles rector and vestry
had left them “no choice but to pursue in the manner required under the Canons
of the Episcopal Church and the Diocese of Fort Worth,” including obtaining a
temporary restraining order and notices to inhibit and to excommunicate. Three
years later, a negotiated settlement cut short litigation between EDFW and the
breakaway parish and returned full possession of the property in question to
EDFW.
25
Later in 1994, one of the standing committee’s members, the Reverend
Keith L. Ackerman, resigned to become the Bishop of the Diocese of Quincy, which
subsequently faced property issues similar to the ones in the instant case. See

20
president of the standing committee was named as the property protection

committee’s chairman. Also during the same time period, the standing committee

questioned whether it had veto power over the Corporation’s trustees. At their

June 1993 meeting, the standing committee received the answer to its question—

after a lengthy discussion between Canon James DeWolfe, Bishop Iker, and the

Corporation’s trustees, it was determined that the Corporation’s trustees “had final

authority in matters concerning Diocesan property.”

By 2000, TEC’s General Convention had formed a task force to visit EDFW

regarding the implementation of some of TEC’s resolutions. In 2000 and 2001, the

standing committee was faced with ecclesiastical charges involving Samuel L.

Edwards, one of the priests then canonically resident in EDFW. Edwards had

moved from Texas to begin acting as the rector of a parish in the Diocese of

Washington despite having not been licensed to do so by the bishop pro tempore

of the diocese in which that parish was located. See Dixon v. Edwards, 290 F.3d

699, 703, 705, 707 (4th Cir. 2002). 26 On December 17, 2001, the standing

Diocese of Quincy v. Episcopal Church, 2014 IL App (4th) 130901, ¶¶ 1, 9, 14
N.E.3d 1245, 1249–50 (Ill. App. Ct. 2014), appeal denied, 21 N.E.3d 713 (Ill. 2014).
26
A federal lawsuit filed not long after the ecclesiastical charges against
Edwards were transferred to EDFW sought a declaration that Edwards was not the
parish’s rector based on his not being found “duly qualified” under a TEC canon,
in part on Edwards’s having advised the bishop pro tempore that “he would not
guarantee her that he would not attempt to lead Christ Church out of [TEC] or
attempt to take Church property as part of that effort.” Dixon, 290 F.3d at 703,
705–08 & nn.5, 8. Along with then-Bishop of the Diocese of Pittsburgh Robert
William Duncan Jr., Bishop Iker filed an amicus brief in the federal suit in support
of Edwards on January 8, 2002. In the brief, the two bishops stated that an

21
committee issued a presentment against Edwards on one of the three

ecclesiastical charges, id. at 707, and the following year the standing committee

consented to Edwards’s deposition.

In 2003, EDFW continued to object to actions by TEC and other dioceses

with which it disagreed, and the standing committee unanimously agreed “to work

together in initiating a gathering . . . in [EDFW] of the Network of Confessing

Dioceses in order to work on the realignment of the Anglican Communion.” The

standing committee met with a bishop of the Reformed Episcopal Church (REC)

in May 2003, and decided to meet with REC in the future to further discuss their

relationship. 27

Episcopal bishop “is governed by the constitution and canons of the Church” and
that an Episcopal bishop does not act “independently of the checks and balances
of the legal system of which they are a part. A bishop must adhere to the
constitution and canons of the Church or be subject to discipline.” They also stated
that “[t]he dioceses have canons that cannot be inconsistent with national canons.”
The district court awarded summary judgment to Washington’s bishop
pro tempore, and the Fourth Circuit affirmed the district court’s judgment in May
2002. Id. at 703.

Presiding Bishop Schori deposed Duncan on September 19, 2008, and on
October 4, 2008, the majority of the Pittsburgh Diocese voted to secede from TEC
and align with the Anglican Province of the Southern Cone. Calvary Episcopal
Church, Pittsburgh v. Duncan, No. 293 C.D. 2010, 2011 WL 10841592, at *2, *5
(Pa. Commw. Ct. Feb. 2, 2011) (construing “the Episcopal Diocese of Pittsburgh
of the Episcopal Church of the United States of America” as used in stipulation to
mean the loyalist faction that remained with TEC), appeal denied, 30 A.3d 1193
(Pa. 2011).
27
REC was organized in 1873 after a schism with TEC. See The Reformed
Episcopal Church, An Overview of the REC, http://www.recus.org/about.html (last
visited Mar. 28, 2018). REC’s vision, as set out in a paper by its bishop that was

22
 EDFW was not the only diocese experiencing strife in its relationship with

TEC during this time. In addition to the Diocese of Quincy 28 and the Diocese of

Pittsburgh, 29 which were experiencing their own differences with TEC, in 2004, the

Diocese of San Joaquin began the process of amending its governing documents,

including the articles of incorporation for “the corporation sole,” which held title to

the diocese’s trust funds and real property, redefining how the vacancy of a bishop

was to be filled, and omitting the requirements that the local choice of bishop be

approved by the national church as provided in TEC’s constitution and canons.

See Diocese of San Joaquin v. Gunner, 202 Cal. Rptr. 3d 51, 56–57 (Cal. Ct. App.

2016, pet. denied) (op. on reh’g). Nevertheless, even as St. Michael’s Episcopal

Church in Fort Worth considered holding a parish vote to leave TEC and affiliate

with the Anglican Church in America, in 2005, Bishop Iker and the standing

committee still expressed hope that “all of us will stand together during this time of

difficulty in the Episcopal Church.”

distributed at a 2003 standing committee meeting, was the formation of an
Anglican Province of America outside of TEC.
28
See Diocese of Quincy, 2014 IL App (4th) 130901, ¶ 9, 14 N.E.3d at 1250
(“Over the years a doctrinal controversy developed . . . .”).
29
See Calvary, 2011 WL 10841592, at *1 (noting that in 2003, Calvary
Episcopal Church filed a complaint against Duncan and members of the Diocese
of Pittsburgh’s standing committee, alleging that they “intended to extinguish the
property rights and interests of” TEC).

23
 4. 2006–2008

In June 2006, immediately after Presiding Bishop Schori’s election, Bishop

Iker and the standing committee approved the following statement,

The Bishop and the Standing Committee of the Episcopal
Diocese of Fort Worth appeal in good faith to the Archbishop of
Canterbury, the Primates of the Anglican Communion, and the Panel
of Reference for immediate alternative Primatial Oversight and
Pastoral Care following the election of Katharine Jefferts Schori as
Presiding Bishop of the Episcopal Church.

This action is taken as a cooperative member of the Anglican
Communion Network in light of the Windsor Report and its
recommendations.

A month later, Bishop Iker discussed with the standing committee a recent

meeting of EDFW’s Constitution and Canons Committee and its proposed

resolutions, additions, and changes to EDFW’s constitution and canons “in light of

recent developments in our Church,” which would be submitted to the diocesan

convention in November 2006. 30

On August 15, 2006, the Corporation amended its bylaws to remove all

references to TEC. Episcopal Diocese, 422 S.W.3d at 648. Article I, “Authority,”

was amended to provide that the Corporation’s affairs

shall be conducted in conformity with the body now known as the
Episcopal Diocese of Fort Worth’s acknowledgment of and allegiance

30
In July 2006, Bishop Iker, along with the bishops of Dallas, Pittsburgh, San
Joaquin, South Carolina, Springfield, and Central Florida, appealed to the
Archbishop of Canterbury, asserting, “Seven dioceses are seeking to reshape their
life together as dioceses . . . under the oversight of a Canterbury appointed
Commissary, temporarily exercising some of the responsibilities normally assigned
to the American primate.”

24
 to the One, Holy, Catholic and Apostolic Church of Christ; recognizing
the body known as the Anglican Communion to be a true branch of
said Church; with all rights and authority to govern the business and
affairs of the Corporation being solely in the board of trustees (as
hereinafter defined, the “Board”) of the Corporation.

This amendment also deleted the reference to “the Constitution and Canons of the

Episcopal Church in the United States of America and the Constitution and Canons

of the Episcopal Diocese of Fort Worth.” A new section was added to Article II,

“Directors,” which stated,

Section 2. The Bishop. The bishop recognized by the body
now known as the Episcopal Diocese of Fort Worth (the “Bishop”)
shall be a trustee and a member of the Board. The Bishop shall be
the Chairman of the Board of the Corporation.

In the event of a dispute or challenge regarding the identity of
the Bishop of the body now known as the Episcopal Diocese of Fort
Worth, the Elected Trustees (as hereinafter defined in Article II,
Section 3) shall have the sole authority to determine the identity of the
Bishop for purposes of the Corporation’s Articles of Incorporation, as
amended from time to time, and these Bylaws.

In the event the body now known as the Episcopal Diocese of
Fort Worth is without a Bishop, a majority of the Elected Trustees shall
have the sole authority to appoint a Chairman of the Board who shall,
for purposes of the Corporation’s Articles of Incorporation, as
amended from time to time, and these Bylaws, have all the rights and
privileges of the Bishop of the body now known as the Episcopal
Diocese of Fort Worth.

If a determination pursuant to this Article II becomes necessary
in the discretion of any member of the Board, the Board member may
call a special meeting of the Board, subject to the notice provisions
set forth in these Bylaws, for the purpose of making the determination.
The vote of a majority of members of the Board present at the special
meeting, wherein a quorum is present, shall be decisive.

25
 There was no change to the number, election, or terms of office for trustees

other than to clarify that the trustees, who were elected at a rate of one per annual

meeting, could be either lay persons in good standing of a parish or mission “in the

body now known as the Episcopal Diocese of Fort Worth” or members of the clergy

“canonically resident within the geographical region of the body now known as the

Episcopal Diocese of Fort Worth.” The rest of the sections remained substantively

unchanged except for the section pertaining to removal of trustees. While the

previous version of the section provided that any trustee could be removed by the

bishop, the amended section stated that any elected trustee could be removed by

a majority of the remaining members of the board. The amended bylaws also

stated, “These Bylaws were considered and unanimously approved at the Board’s

annual meeting August 15, 2006, at which every Board member was present.”

On September 5, 2006, the Corporation’s board likewise amended the

Corporation’s articles of incorporation. Id. The preamble recited that articles IV,

V, and VI had been revised and approved by a unanimous vote by the board on

August 15, 2006.

Section 1 of article IV was amended to state that the Corporation was

organized “[t]o receive and maintain a fund or funds or real or personal property,

or both, from any source,” deleting the portion of the earlier article that specified

that “any source” included “all real property acquired for the use of [EDFW] as well

as the real property of all parishes, missions and diocesan institutions.”

26
 Section 2 of article IV was amended to state that the property held under

section 1 “shall be administered in accordance with the Bylaws of the Corporation

as they now exist or as they may hereafter be amended,” deleting reference to

EDFW’s constitution and canons. Article VI incorporated a provision to identify the

Corporation’s chairman, paralleling and referencing the amended bylaws. Article

VI also listed the names of the trustees serving at that time: Salazar, Barber,

Bates, Virden, Patton, and Bishop Iker. According to Virden, the 2006

amendments to the Corporation’s bylaws “were not adopted as part of any plan to

withdraw from TEC, as those discussions did not begin until the summer of 2007.”

On October 19, 2006, Presiding Bishop Schori informed Bishop Iker that

some of the provisions in EDFW’s constitution and canons were contrary to TEC’s

constitution and canons and that those provisions needed to be changed.

Otherwise, Presiding Bishop Schori said that she would have to consider what sort

of action to take to bring EDFW into compliance. On November 15, 2006, TEC’s

Executive Council received a task force report identifying EDFW as a “problem

diocese” that needed to be monitored.

On June 14, 2007, TEC’s Executive Council declared some of EDFW’s

constitutional and canonical amendments to be “null and void.” Four days later,

Bishop Iker and the standing committee released a statement noting that an

adversarial relationship had developed between EDFW and TEC, asserting that

TEC’s Executive Council “ha[d] no legislative authority, and its resolutions [were]

not binding on anyone,” and further positing that it was the Executive Council’s

27
resolution “in this matter that is null and void, and it is of no force or effect in this

Diocese.”

On November 8, 2007, the week before EDFW’s November 17, 2007 Annual

Convention, Presiding Bishop Schori published an open letter to Bishop Iker,

stating that several of the proposed changes to EDFW’s constitution would violate

the requirement in TEC’s constitution for the diocese’s “unqualified accession.” 31

In the letter, she warned Bishop Iker of the potential canonical consequences and

asked him to lead EDFW “on a new course that recognizes the interdependent and

hierarchical relationship between the national Church and its dioceses and

parishes” instead of in a direction “that would purportedly permit [EDFW] to depart

from [TEC].” The Episcopal Church, Fort Worth bishop receives notice of possible

consequences if withdrawal effort continues (Nov. 8, 2007), at

https://www.episcopalchurch.org/library/article/fort-worth-bishop-receives-notice-

possible-consequences-if-withdrawal-effort.

On November 12, 2007, Bishop Iker responded by publishing his own open

letter, in which he stated,

While I do not wish to meet antagonism with antagonism, I must
remind you that 25 years ago this month, the newly formed Diocese
of Fort Worth voluntarily voted to enter into union with the General
Convention of the Episcopal Church. If circumstances warrant it, we

31
In the interest of time, instead of requesting that the already voluminous
record be supplemented, we have opted to take judicial notice sua sponte of
Presiding Bishop Schori’s letter and Bishop Iker’s response—both of which were
published on the internet and referenced, but not included, in the record—for the
sole purpose of providing context for the parties’ dispute. See Tex. R. Evid. 201.

28
 can likewise, by voluntary vote, terminate that relationship. Your
aggressive, dictatorial posturing has no place in that decision. Sadly,
however, your missive will now be one of the factors that our
Convention will consider as we determine the future course of this
diocese for the next 25 years and beyond, under God’s grace and
guidance.

The Episcopal Diocese of Fort Worth, A letter from Bishop Iker to the Presiding

Bishop (Nov. 12, 2007), at http://www.fwepiscopal.org/bishop/bishoppbreply.html.

In his November 17, 2007 address at the Annual Convention, Bishop Iker

recounted the Executive Council’s resolution and stated “that such declarations

exceeded the authority of the Executive Council, which is responsible for the

program and budget of the General Convention, and that they had no legislative

or judicial authority to make such a pronouncement.” Bishop Iker stated, “The

Council’s declaration about the legitimate legislative process in this Diocese is, in

fact, null and void.” Bishop Iker also voiced his objection “to the claim that the

Presiding Bishop has any canonical authority in this Diocese or any legitimate

power over the leadership of this Diocese” and stated that “[t]here is no such thing

as ‘the national Church,’” but rather a confederation of dioceses.

At the standing committee’s follow-up meeting on November 19, 2007,

Bishop Iker expressed his desire that his convention address be shown in all of

EDFW’s parishes and missions prior to each congregation’s annual parish

meeting. The standing committee discussed with Bishop Iker “the need to begin

immediate study of the Constitution and Canons of the Province of the Southern

Cone.”

29
 In January 2008, Bishop Iker sent a directive to appoint clerical members of

the standing committee plus four rectors “who have said they want to remain in

TEC and four who believe it is time to separate,” asking for their assistance in

addressing conflicts in EDFW “concerning the plan to separate from The General

Convention of The Episcopal Church.” Three months later, at the March 2008

meeting, the standing committee also discussed, among other things, “the current

situation in the Diocese of San Joaquin.” 32

A month later, the committee’s notes reflect that Bishop Iker was “trying to

work out a pastoral plan and provision” for the parishes “who may wish to remain

in TEC following [the] November Diocesan Convention,” with the assistance of

Dallas’s bishop and standing committee. Bishop Iker and the standing committee

sent a letter to the Internal Revenue Service to inform the IRS that EDFW “no

longer desires to be included under the group ruling of the Protestant Episcopal

Church of the United States of America.” In May 2008, the standing committee

32
A month after EDFW’s November 2007 convention, the annual convention
of the Diocese of San Joaquin voted to leave TEC and to affiliate with the Anglican
Province of the Southern Cone. Diocese of San Joaquin, 202 Cal. Rptr. 3d at 57.
The bishop of that diocese then filed with the California Secretary of State an
amendment to the articles of incorporation of the corporate sole to change its name
from “The Protestant Episcopal Bishop of San Joaquin” to “The Anglican Bishop
of the Diocese of San Joaquin.” Id. In March 2008, the San Joaquin bishop was
deposed by TEC. Id. at 57–58. The Right Reverend John Clark Buchanan, a
member of TEC’s House of Bishops, averred that since 2006, the leaders of five
of TEC’s 109 dioceses—including EDFW, the Diocese of Pittsburgh, and the
Diocese of San Joaquin—had purported to remove their dioceses from TEC over
internal disputes.

30
approved a new civil employment contract with Bishop Iker and ended the former

employment agreement.

Reverend Buchanan declared in his affidavit that in 2008, prior to EDFW’s

purported disaffiliation, TEC’s House of Bishops had “affirmed that diocesan

leaders have no authority to remove their dioceses from The Episcopal Church.”

But by September 2008, the standing committee was poised to recommend that

EDFW “affiliate with the Anglican Province of the Southern Cone as a member

diocese, on a temporary, pastoral basis, until such time as an orthodox Province

of the Anglican Communion can be established in North America.” The standing

committee’s members unanimously approved and endorsed the following

resolution from EDFW’s Convention Resolutions Committee:

BE IT RESOLVED, that the Episcopal Diocese of Fort Worth,
meeting in its 26th Annual Convention, does hereby accept the
provision made by the Anglican Province of the Southern Cone, and
the Episcopal Diocese of Fort Worth does hereby immediately enter
into membership with the Anglican Province of the Southern Cone as
a full and equal constituent member of such Province, and the
Episcopal Diocese of Fort Worth does hereby accede to the authority
of the Constitution and Canons of the Anglican Province of the
Southern Cone to the extent such Constitution and Canons are not
contrary to Holy Scripture and the Apostolic teaching of the one holy,
catholic and apostolic Church.

In September 2008, Bishop Iker sent a letter to the rector of All Saints

Episcopal Church, Christopher Jambor, stating that properties located at 4936,

4939, 5001, and 5005 Dexter Avenue, Fort Worth, were not “picked up” by the

1984 declaratory judgment nor held by the Corporation but rather were held in the

31
name of All Saints Episcopal Church. In the letter, Bishop Iker asked that a deed

be executed to transfer the parcels to the Corporation.

On November 15, 2008, in his address at the 26th Annual Convention,

Bishop Iker observed that EDFW had come “to this historic moment of decision

making” during which EDFW would “vote to rescind” its accession to TEC’s

constitution and canons and to align itself “instead with an orthodox Province of

the Anglican Communion, the Province of the Southern Cone.” Bishop Iker stated,

Some have asked, “Will we still be Episcopalians after our
realignment vote is taken?” And the answer is, “Well, yes and no –
that all depends!” After all, no one can “un-Episcopalian-ize you, and
no one is being kicked out of the family. We will still be The Episcopal
Diocese of Fort Worth. We are not changing our name, because we
are not changing our identity. We will still have an Episcopal form of
polity, which means being in a church that is under a Bishop. We will
continue to stand for what our forebears meant when they called
themselves Episcopalians. But we will no longer be a part of the
ecclesiastical structure sometimes known as the Protestant Episcopal
Church in the United States of America, which is governed by the
General Convention. TEC is not the only Episcopal Church in the
Anglican Communion, and it does not own the name “Episcopalian.”

....

. . . [T]he proposals before this Convention have one clear
message: We here in the Episcopal Diocese of Fort Worth intend to
be who we have always been, to believe what we have always
believed, and to do what we have always done. We are not going
away, nor are we abandoning anything. We are not leaving the
Church – we are the Church. We will remain an orthodox diocese of
catholic Christians, full members of the worldwide Anglican
Communion.

32
The majority of EDFW’s Annual Convention voted to leave TEC and to affiliate with

the Anglican Province of the Southern Cone. 33

Following the 26th Annual Convention in November, EDFW published a

statement on its website, declaring,

We remain a member diocese of the Anglican Communion.

We remain the Episcopal Diocese of Fort Worth. The word
“episcopal” identifies us as part of the apostolic succession, with a
bishop as our elected chief pastor.

We remain in communion with other Episcopalians. We share
fellowship with all those in any Province who recognize the authority
of Scripture and the faith and order of historic Anglicanism.

Shortly thereafter, TEC issued a letter of inhibition, to which Bishop Iker

replied three days later, stating that “the inhibition is of no force or effect, since the

Bishop and Diocese, meeting in annual convention, constitutionally realigned with

another province of the Anglican Communion on Saturday, Nov. 15, and are now

constituent members of the Anglican Province of the Southern Cone.” Bishop Iker

further clarified his position, stating,

Katharine Jefferts Schori has no authority over me or my ministry as
a Bishop in the Church of God. She never has, and she never will.

Since November 15, 2008, both the Episcopal Diocese of Fort Worth
and I as the Diocesan Bishop have been members of the Anglican
Province of the Southern Cone. As a result, canonical declarations of
the Presiding Bishop of The Episcopal Church pertaining to us are
irrelevant and of no consequence.

33
The proposed constitutional amendments under consideration at the
Annual Convention were the same ones presented the previous year that required
a second reading.

33
 On December 5, 2008, TEC accepted Bishop Iker’s November 24, 2008

renunciation and removed and released him from the obligations of all ministerial

offices of TEC. On December 16, 2008, at a special meeting of the standing

committee, the Corporation’s board, and the chairman of the constitution and

canons committee, the first item of discussion addressed parishes and individuals

who wanted to stay with TEC. Of particular concern was the perception that the

“Steering Committee of North Texas Episcopalians” and the “‘Remain Episcopal’

folks” were using the official Diocesan shield “in lots of their publicity – in

newspaper ads and on the web, etc. – identifying themselves boldly as ‘the

Episcopal Diocese of Fort Worth in the Episcopal Church U.S.A,’” which the

meeting’s attendees said was confusing and misleading. Those attending

unanimously agreed to send a “cease and desist” letter regarding use of EDFW’s

official seal and shield in publicity. They then discussed the “very conflicted

situation which now exists at All Saints’ Church, Fort Worth.”

5. 2009

Presiding Bishop Schori issued a “Notice of Special Meeting of the

Convention of the Episcopal Diocese of Fort Worth, Saturday, February 7, 2009.”

In that notice, she stated that as there was no bishop nor any qualified members

of the standing committee in the diocese, she had called the meeting “in

consultation with the Steering Committee of faithful Episcopalians of that Diocese,”

to elect a provisional bishop and to elect or appoint members of the standing

34
committee, executive council, and other officers, to adopt a budget, and to consider

resolutions relating to “recent purported amendments to the Constitution and

canons of the Diocese,” as well as other resolutions relating to the TEC-affiliated

diocese’s organization and governance.

The emergency convention convened at Trinity Episcopal Church under

Presiding Bishop Schori. After quorums were verified and the “parliamentary

necessities were accomplished,” the first order of business was to elect a

provisional bishop. Edwin F. Gulick Jr., who was elected to the post, thereafter

made appointments to various commissions and committees for the vacancies

resulting from the schism. Bishop Gulick also appointed trustees for the

Corporation, on the basis that the previous trustees’ effective resignation occurred

when they left TEC by the “irregular, illegal action of the convention in 2008.” 34

In his deposition, Bishop Gulick acknowledged that the Corporation’s board

members were supposed to be elected one per year and, between sessions,

replacements would be voted on by the board. And despite his inability to point to

specific language authorizing EDFW to remove all of the trustees, he nevertheless

explained that “in the unforeseen, unanticipated emergency moment,” everything

possible had been done to comply with EDFW’s and TEC’s constitutions and

canons.

34
Additionally, Bishop Gulick testified in his deposition that “sufficient
persons” were elected in offices “necessary to conduct the business of the
Diocese.”

35
 On April 14, 2009, the TEC parties adopted amended and restated articles

of incorporation for the Corporation and filed them with the Texas Secretary of

State. These amended and restated articles purported to return to the

Corporation’s original articles of incorporation (i.e., administration in accordance

“with the Constitution and Canons of the Episcopal Diocese of Fort Worth and the

Episcopal Church of the United States”), and listed Bishop Gulick, James Hazel,

John Stanley, Robert Bass, Cherie Shipp, and Trace Worrell as the current

members of the board of trustees. 35

At the 27th Annual Meeting of the Diocesan Convention on November 14,

2009, the TEC-affiliated EDFW ratified the actions of the February 7, 2009 special

meeting, and after Bishop Gulick’s resignation, C. Wallis Ohl was elected and

installed as the TEC-affiliated EDFW’s bishop. The same individuals who were

put into place at the February 7, 2009 special meeting were elected to the TEC-

affiliated diocese’s standing committee and the Corporation’s board of trustees.

The convention also ratified the resolutions made and actions taken at the

February 7, 2009 special meeting and brought EDFW’s constitution and canons

back into compliance with TEC’s constitution and canons. Bishop Ohl testified that

the faction headed by Bishop Iker was not the “Episcopal Diocese of Fort Worth,”

that he—not Bishop Iker—was the legitimate and properly elected EDFW Bishop,

35
A week later, Bishop Iker sent a certificate of correction to the secretary of
state regarding the Corporation’s articles.

36
and that he, Hazel, Shipp, Worrell, Bass, and Stanley—and not Bishop Iker,

Salazar, Patton, Virden, Barber, and Bates—were the Corporation’s legitimate and

properly elected trustees. See Episcopal Diocese, 422 S.W.3d at 647–49.

C. The Lawsuit

On the same day that the TEC parties’ amended and restated Articles of

Incorporation were filed—April 14, 2009—the TEC parties filed suit for conversion

and violations of business and commerce code section 16.29. 36 Additionally, the

TEC parties sought declaratory and injunctive relief regarding who could act as

EDFW’s representatives and who had use and control of EDFW’s real and

personal property. 37 See In re Salazar, 315 S.W.3d 279, 282 (Tex. App.—Fort

Worth 2010, orig. proceeding).

1. Summary Judgment—First Round

The parties filed competing motions for summary judgment. As explained

by the supreme court,

In its motion for summary judgment TEC argued, in part, that
the actions of the Board of Trustees in amending the Fort Worth

36
Business and commerce code section 16.29 is now section 16.103, “Injury
to Business Reputation; Dilution.” See Tex. Bus. & Com. Code Ann. § 16.103
(West Supp. 2017).
37
In 2009, the Corporation transferred titles to Trinity Episcopal Church (Fort
Worth) and St. Martin-in-the-Fields Episcopal Church (Southlake) to the rector,
wardens, and vestry of these parishes that stayed with TEC. It also transferred
title to St. Luke’s Episcopal Church (Stephenville) to the rector, wardens, and
vestry of that parish after evidence of satisfactory removal of the Corporation’s
name from any encumbrances on the property. Bishop Iker thereafter issued
orders dissolving the relationship between the diocese and these churches.

37
 Corporation’s articles of incorporation were void because the actions
went beyond the authority of the corporation, which was created and
existed as an entity subordinate to a Diocese of TEC. TEC argued
that “[t]he secular act of incorporation does not alter the relationship
between a hierarchical church and one of its subordinate units” and
that finding otherwise “would risk First Amendment implications.” The
Diocese, on the other hand, argued that the case was governed by
the Texas Non-Profit Corporation Act and the Texas Uniform
Unincorporated Nonprofit Association Act; under those statutes a
corporation may amend its articles of incorporation and bylaws; and
TEC had no power to limit or disregard amendments to the
Corporation’s articles and bylaws.

Episcopal Diocese, 422 S.W.3d at 650 (footnotes omitted).

After the trial court granted summary judgment and issued a declaratory

judgment for the TEC parties in 2011, stating that the changes made by Appellees

to the Corporation’s articles and bylaws were ultra vires and void, 38 Appellees

appealed directly to the supreme court. The heart of the dispute, as identified by

the supreme court, was “whether the ‘deference’ (also sometimes referred to as

the ‘identity’) or ‘neutral principles of law’ methodology should be applied to resolve

the property issue.” Id. at 649.

The court’s opinion in the direct appeal issued in 2013. In it, the court

reversed the trial court’s judgment and remanded the case to the trial court to be

38
The original cause number in the trial court was 141-237105-09. The trial
court granted Appellees’ motion to sever to make the trial court’s interlocutory
judgment for the TEC parties final and appealable. The trial court severed the
claims subject to the summary judgment into cause number 141-252083-11 and
stayed the remainder of the unfinished action. Among others, the petitioners in the
direct appeal included Bishop Iker, Salazar, Patton, Virden, Barber, Bates, several
clergy, and 47 churches.

38
considered under the neutral principles methodology. Id. at 647. In its opinion,

the court stated that under this methodology, ownership of disputed property is to

be determined by considering evidence such as the deeds to the properties, the

terms of the local church charter (including articles of incorporation and bylaws, if

any), the relevant provisions of governing documents of the general church and

local church entities, the governing state statutes, and other items as applicable.

Id. at 651–52 (“[O]n remand the trial court is not limited to considering only the four

factors listed in Jones [v. Wolf, 443 U.S. 595, 99 S. Ct. 3020 (1979)]. . . . [t]he

elements listed in Jones are illustrative.”). It also referenced Masterson, which

issued on the same day, as applicable to this case regarding church canons and

Texas law. Id. at 653.

In Episcopal Diocese as well as in Masterson, the court established

guidance for the case on remand. In Episcopal Diocese, the court observed,

“[A]bsent agreement or conclusive proof of title to the individual properties and the

capacities in which titles were taken, fact questions exist under neutral principles

of law, at a minimum, about who holds title to each property and in what capacity.”

Id. at 652. The court also instructed,

While we agree that determination of who is or can be a
member in good standing of TEC or a diocese is an ecclesiastical
decision, the decisions by Bishops Gulick and Ohl and the 2009
convention do not necessarily determine whether the earlier actions
of the corporate trustees were invalid under Texas law. The
corporation was incorporated pursuant to Texas corporation law and
that law dictates how the corporation can be operated, including
determining the terms of office of corporate directors, the

39
 circumstances under which articles and bylaws can be amended, and
the effect of the amendments.

Id. The court concluded that the record failed to conclusively show as a matter of

law that the Corporation’s trustees had been disqualified from serving as such at

the relevant times, whether the 2009 appointments to the Corporation’s board by

Bishop Ohl were valid or invalid under Texas law, or whether, under Texas law,

the actions taken by the trustees appointed by Bishop Ohl in 2009 were valid or

invalid. Id. at 652–53.

2. Summary Judgment—Second Round

Upon remand to the trial court, the TEC parties filed an amended petition in

which they renewed their severed claims. 39 By this time the severed claims

included not only conversion and business and commerce code section 16.29

violations but also breach of fiduciary duty, breach of trust, trespass to try title, and

an action to quiet title. Additionally, the TEC parties had pleaded for the imposition

39
Prior to the TEC parties’ filing the amended petition, the trial court had
denied their motion to consolidate their previously severed claims.

40
of a constructive trust under a number of theories, including estoppel. They also

continued to seek declaratory and injunctive relief and an accounting. 40

The parties once more filed competing motions for partial summary

judgment. 41

a. Appellees’ Motion and the TEC Parties’ Response

In their motion, Appellees argued:

• that the deeds, the 1984 judgment, the Diocese’s charters, and adverse
possession vested the Corporation with title and control, that TEC’s charters
made no claim to title and only asserted an invalid trust, and that the TEC
parties’ pleadings conceded that title was in the Corporation;

• that state corporations and associations law requires adherence to the
Corporation’s and Association’s bylaws, making Appellees the Corporation’s
elected trustees and Bishop Iker the chairman of the Corporation’s board and

40
Appellees moved to strike the renewed claims, but the trial court denied
the motion.
41
We note here that in considering the competing summary judgment
motions, the trial court was faced with the same herculean task that has been
presented to us on appeal. First, it was required to read a record totaling over
10,000 pages on remand, a task that would take an above-average reader, such
as a trial judge, an estimated 200 hours, or between five and six weeks, assuming
he or she devoted 40 hours per week solely to the endeavor. (Including the
portions of the record developed prior to the direct appeal, the record currently
totals over 14,000 pages.) Then the trial court was presented with the daunting
task of conducting the research and analysis necessary to apply to that voluminous
record such exceedingly complex legal issues as state corporations, associations,
and trust law, heavily overlaid by the U.S. Supreme Court’s First Amendment
jurisprudence, an endeavor that could easily have taken as much time—if not a
good deal more—than the reading of the record. All the while, the trial court was
expected to carry out its other obligations of attending to the hundreds of cases
pending on its docket that were, likewise, deserving of the trial court’s attention.
On appeal, as acknowledged by Appellees in their February 12, 2018
“Supplemental Response to Latest Letter Brief,” we have received an additional
“346 pages of briefing from the parties in this appeal” to consider and address.

41
 depriving the TEC parties of standing when TEC’s own charters prevented the
TEC parties from convening the special convention upon which their claims
were based;

• that state law prohibits an express, implied, or constructive trust interest for the
TEC parties;

• that the same rules that allocated control to Appellees of the real property also
applied to the funds, trusts, and endowments that the TEC parties sought; and

• that estoppel and quasi-estoppel did not apply because Appellees only wanted
a declaration to be left alone.

The TEC parties responded that Appellees had judicially admitted that the

Corporation held all property in trust for EDFW and its congregations, and since

those entities were subordinate affiliates of the hierarchical church, the Corporation

therefore held the property in trust for the TEC parties because they were the only

parties recognized by TEC as those entities. They also argued, as they do on

appeal, that the Dennis Canon, in addition to Appellees’ words and actions prior to

the schism, imposed a trust—express, contractual, or constructive—in their favor.

And they argued that Appellees’ adverse possession claim failed because there

was no “adverse” interest until the 2008 schism.

b. The TEC Parties’ Motion and Appellees’ Response

In their summary judgment motion, the TEC parties contended:

• that because TEC had determined that Appellees did not represent EDFW and
its congregations and that the TEC parties did represent them, the property held
in trust by the Corporation was held in trust for the TEC parties;

• that Appellees had no right to control the Corporation because, in addition to
the plain terms of the Corporation’s bylaws, it was a subordinate entity of EDFW
that only the TEC parties could control;

42
• that state associations law favored the TEC parties because local chapters are
treated as constituents of larger organizations;

• that an express trust was created when EDFW agreed to TEC’s rules in
exchange for formation, membership, and property, including the Dennis
Canon, but that even without an express trust, the TEC parties were entitled to
a constructive trust;

• that Appellees’ adverse possession claim failed because they did not meet all
of the necessary elements to establish that claim;

• that Appellees were estopped from raising claims and defenses that
contradicted their commitments, conduct, and prior statements to courts and
other federal and state authorities;

• that, contrary to Appellees’ assertion, the TEC parties did have standing; and

• that based on all of the above, the trial court should grant summary judgment
on the TEC parties’ trespass-to-try-title claim and their request for attorney’s
fees and for declaratory judgment. 42

Appellees responded that the supreme court had rejected the TEC parties’

deference theory in favor of neutral principles, that there was no express or

irrevocable trust in TEC’s favor nor a contractual or constructive trust, that there

was no breach of fiduciary duty, and that the TEC parties’ remaining grounds were

baseless.

c. Supplemental Motions

On March 2, 2015, the trial court, except as to claims involving All Saints

Episcopal Church, granted Appellees’ motion and denied the TEC parties’ motion.

The parties filed supplemental summary judgment motions to address the All

42
The TEC parties also raised retroactivity and deference, re-urging their
original, pre-Episcopal Diocese and Masterson arguments.

43
Saints issues 43 and agreed that the remaining claims in cause number 141-

252083-11—the claims for attorney’s fees, conversion, violations of business and

commerce code section 16.29, damages for breach of fiduciary duty (as opposed

to the predicate for a constructive trust), the action to quiet title, and for an

accounting—should be severed and stayed.

In their summary judgment motion relating to All Saints Episcopal Church, 44

Appellees argued that the Corporation held legal title to two of the All Saints

properties—the sanctuary and parish hall on 5001 Crestline and the rectory on

5003 Dexter—by virtue of the 1984 judgment’s property transfer and that beneficial

title was held by the group affiliated with them. Ergo, applying the same reasoning

as the trial court’s previous summary judgment, Appellees were entitled to

43
The record reflects that All Saints had a troubled history with EDFW’s
leadership. Four years after the 1986 agreement between All Saints and EDFW
to designate All Saints as EDFW’s Cathedral Church, in October 1990, a dispute
arose between then-Bishop Pope and All Saints with regard to cathedral status
and how the property was held—the bishop wanted title to the property to be held
in conformity with EDFW’s constitution and canons, while All Saints’s vestry
wanted to hold it in trust for TEC in conformity with TEC’s constitution and canons.
44
The articles of incorporation for All Saints Episcopal Church are contained
in the record and indicate that it was incorporated for a fifty-year term in 1953. No
one has indicated whether any efforts were taken to maintain its incorporated
status after 2003 or what effect the lack of status might have, but in their reply to
the TEC parties’ All Saints motion for summary judgment, Appellees asserted that
All Saints’s incorporation “in the 1950s has no bearing on this dispute” and that all
parties agreed that under EDFW’s canons, the All Saints Corporation is merely an
“adjunct or instrumentality” of the parish that cannot hold real property.

44
summary judgment as to those two properties. Appellees waived their claims to

the remaining four All Saints properties “so as to resolve this case without a trial.” 45

The TEC parties, in their All Saints summary judgment motion, asked the

trial court to construe the deeds, to declare the TEC parties the properties’

equitable owners, and to remove Appellees as the trustees or owners of legal

title. 46 The trial court disposed of the All Saints summary judgment motions in its

final summary judgment.

3. Trial Court’s Judgment

On July 24, 2015, the trial court signed a final judgment in this case,

consolidating its prior orders.

In the judgment, the trial court granted Appellees’ motion as to All Saints on

the two pieces of property under dispute and denied the TEC parties’ opposing

motion. The trial court recited in its judgment that the claims for attorney’s fees in

both the original and severed action, the claims in the severed action for

conversion, damages for breach of fiduciary duty, to quiet title and for an

45
5001 Crestline and 5003 Dexter are adjacent to the properties referenced
by Bishop Iker in his September 2008 letter to the All Saints rector.
46
The TEC parties also revisited all of their prior arguments in the case,
prompting Appellees to remark in their summary judgment response that “the Court
should reject these 95 pages that summarize what the Court rejected when it was
153 pages” and that “[t]he last 95 pages of the 111 pages of Plaintiffs’ motion can
be ignored because Plaintiffs admit their ‘global arguments’ merely re-assert the
same grounds this Court rejected in its Partial Summary Judgment of March 2,
2015.”

45
accounting, and the claims under business and commerce code section 16.29

remained pending in the original action, cause number 141-237105-09, and

ordered that those remaining claims, “to the extent they are also pending in this

cause,” were dismissed without prejudice and preserved for litigation in cause

number 141-237105-09.

The trial court made the following declarations in its judgment:

1. Neutral principles of Texas law govern this case, and
applying such law is not unconstitutionally retroactive.[47]

2. The Corporation of the Episcopal Diocese of Fort Worth
and Defendant Congregations hold legal title to all the properties listed

47
In this, the trial court was merely obeying the law of the case: the supreme
court stated in Episcopal Diocese that it had “concluded in Masterson that the
neutral principles methodology was the substantive basis [for the supreme court’s]
decision in Brown v. Clark, 102 Tex. 323, 116 S.W. 360 (1909),” and that “as to
the argument that application of neutral principles may pose constitutional
questions if they are retroactively applied, we note that over a century ago in Brown
. . . our analysis and holding substantively reflected the neutral principles
methodology.” 422 S.W.3d at 650–51, 653. Based on the supreme court’s
determination that the neutral principles methodology had substantively applied to
this type of case since 1909, the trial court did not err by determining that its
application here would not be retroactive. See Farmers Grp. Ins., Inc. v. Poteet,
434 S.W.3d 316, 329 (Tex. App.—Fort Worth 2014, pet. denied) (explaining that
the law of the case doctrine is the principle under which questions of law decided
on appeal to a court of last resort will govern the case throughout its subsequent
stages). Therefore, to the extent that the TEC parties have raised subissues in
footnote 5 of their appellants’ brief with regard to their issues 1(a) and 1(b), in which
they re-urge their pre-Episcopal Diocese and Masterson retroactivity and
deference methodology arguments, we overrule these subissues without further
discussion. But see Eric G. Osborne & Michael D. Bush, Rethinking Deference:
How the History of Church Property Disputes Calls into Question Long-Standing
First Amendment Doctrine, 69 SMU L. Rev. 811, 813 (2016) (suggesting that the
deference model itself is fundamentally flawed and that its result “has been to
empower denominational hierarchies, thus making divisions and intra-church
fights for control especially bitter”).

46
 on Exhibit 1 attached to this Order, subject to control by the
Corporation pursuant to the Diocese’s charters.[48]

3. The Episcopal Diocese of Fort Worth and the Defendant
Congregations in union with that Diocese hold beneficial title to all the
properties listed on Exhibit 1 attached to this Order.

4. Defendants Dr. Franklin Salazar, Jo Ann Patton, Walter
Virden, III, Rod Barber, and Chad Bates are, and have been since
2005, the properly elected Trustees of the Corporation for the
Episcopal Diocese of Fort Worth.

5. Defendant Jack Iker is, and has been since 2005, the
proper Chairman of the board and one of the Trustees of the
Corporation for the Episcopal Diocese of Fort Worth.

6. Defendants are the proper representatives of the
Episcopal Diocese of Fort Worth, the Texas unincorporated
association formed in 1982.

7. The Defendants hold legal title and control of the funds
and endowments listed on Exhibit 2 attached to this Order, subject to
the terms of each.

8. Plaintiffs have no express, implied, or constructive trust in
the properties or funds listed in the Exhibits attached to this Order.

9. Defendants have not breached any fiduciary duty to or
special relationship with any Plaintiffs.

48
The supreme court acknowledged in Episcopal Diocese that “[t]he 1984
judgment [transferring real and personal property from the Diocese of Dallas]
vested legal title of the transferred property in the Fort Worth Corporation, except
for certain assets for which the presiding Bishop of the Dallas Diocese and his
successors in office had been designated as trustee.” 422 S.W.3d at 648. Those
other assets were transferred by the 1984 judgment to the Bishop of the Fort Worth
Diocese and his successors in office as trustee. Id.; see Farmers Grp., 434 S.W.3d
at 329 (law of the case doctrine). Ultimately, legal title to that property was also
placed under the Corporation’s control. See Tex. Bus. Orgs. Code Ann. § 252.015
(West 2012). No one disputes that the Corporation holds legal title.

47
Exhibit 1 attached to the order listed 121 properties. Exhibit 2 listed four funds for

which the Corporation is listed as trustee, six funds for which Bishop Iker is listed

as trustee, and one fund for which the EDFW Treasurer, the EDFW Chancellor,

and Bishop Iker are listed as trustees.

The TEC parties filed a joint notice of appeal.

III. Discussion

TEC argues that the trial court erred as a matter of law in its application of

the “neutral principles” approach by failing to defer to and apply TEC’s

ecclesiastical determination of which entity constitutes EDFW. The TEC parties

argue that the trial court erred by denying their motion for summary judgment and

granting summary judgment for Appellees by:

a. Violating Masterson, Episcopal Diocese, and the First
Amendment by overriding the Episcopal Church on who may control
an Episcopal Diocese and Episcopal Congregations;

b. Violating Masterson, Episcopal Diocese, and the First
Amendment’s limits on neutral principles by refusing to “accept as
binding” the Church’s determination of ecclesiastical issues within this
property case;

c. Failing to apply neutral principles of Texas Associations law,
including an association’s right to interpret and enforce its own rules;

d. Failing to apply this Court’s holding in Shellberg v. Shellberg,
459 S.W.2d 465, 470 (Tex. Civ. App.—Fort Worth 1970, writ ref’d
n.r.e.), the law in effect when the Diocese made its contract;

e. Violating Texas trust law by refusing to enforce the express,
unrevoked trusts in favor of the Church in fifty-five individual recorded
deeds;

48
 f. Failing to find breach of fiduciary duty and to impose a
constructive trust where Appellees broke a century’s worth of oaths
and commitments;

g. Failing to estop Appellees from contradicting their own
statements to other courts and parties;

h. Failing to apply Texas Corporations law to the undisputed facts,
including a plain application of the Corporation’s bylaws;

i. Failing to reject Appellees’ claim to title by adverse possession;

j. Holding, if it did, that Appellants did not have standing; and

k. Denying Appellants’ trespass-to-try-title claim.

Because TEC also adopted and incorporated by reference all of the TEC parties’

issues and arguments, we will address their dispositive issues together.

A. Standard of Review

In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. Travelers

Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When both parties move

for summary judgment and the trial court grants one motion and denies the other,

the reviewing court should review both parties’ summary judgment evidence and

determine all questions presented. Mann Frankfort, 289 S.W.3d at 848. The

reviewing court should render the judgment that the trial court should have

49
rendered. See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746,

753 (Tex. 2009); Mann Frankfort, 289 S.W.3d at 848.

B. Jurisdiction

Standing is a threshold issue that implicates subject matter jurisdiction,

focuses on the question of who may bring an action, and presents the issue of

whether a court may consider a dispute’s merits. See In re J.W.L., 291 S.W.3d

79, 85 (Tex. App.—Fort Worth 2009, orig. proceeding [mand. denied]). “To have

standing, a plaintiff must be personally aggrieved, and his alleged injury must be

concrete and particularized, actual or imminent, and not hypothetical.” Heat Shrink

Innovations, LLC v. Med. Extrusion Techs.-Tex., Inc., No. 02-12-00512-CV, 2014

WL 5307191, at *7 (Tex. App.—Fort Worth Oct. 16, 2014, pet. denied) (mem. op.)

(citing DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05 (Tex. 2008)). “A

party may be personally aggrieved if it has a legal or equitable interest in the

controversy.” Id. (citing Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487,

489 (Tex. 1988) (holding that plaintiff had standing to contest sale of property in

which he had an equitable interest), $574.37 U.S. Coin & Currency v. State, No.

02-06-00434-CV, 2008 WL 623793, at *6 (Tex. App.—Fort Worth Mar. 6, 2008, no

pet.) (mem. op.) (holding that although vehicle was owned by another person,

plaintiff had equitable interest in truck to confer standing to contest forfeiture), and

First Nat’l Bank of El Campo, TX v. Buss, 143 S.W.3d 915, 922 (Tex. App.—

Corpus Christi 2004, pet. denied) (noting that a person in possession of a vehicle

who is the intended owner of the vehicle has an equitable possessory right in the

50
vehicle even if that person is not named on the vehicle’s title)). Without a breach

of a legal right belonging to a specific party, that party has no standing to litigate.

Cadle Co. v. Lobingier, 50 S.W.3d 662, 669–70 (Tex. App.—Fort Worth 2001, pets.

denied) (en banc op. on reh’g). We review standing de novo and may review the

entire record to determine whether any evidence supports it. Senger Creek Dev.,

LLC v. Fuqua, No. 01-15-01098-CV, 2017 WL 2376529, at *13 (Tex. App.—

Houston [1st Dist.] June 1, 2017, no pet.) (mem. op.) (citing Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Tex. Ass’n of Bus. v. Tex. Air Control

Bd., 852 S.W.2d 440, 444–45 (Tex. 1993)).

The TEC parties argue that a party has standing as long as he or she alleges

a pecuniary interest. They contend that they have done so as “(1) the displaced

minority that formerly enjoyed use of the property and as the only parties

authorized by the Church to lead the Diocese; and (2) the Church that formed the

Diocese and received a trust interest in the property,” citing Getty Oil Company v.

Insurance Company of North America, 845 S.W.2d 794, 798–99 (Tex. 1992), 49

49
In Getty, a chemical buyer sued the seller and the seller’s insurers after
the chemicals exploded and killed someone and a wrongful death judgment was
obtained against it; the buyer claimed in its subsequent suit that the seller and the
seller’s insurers were contractually obligated to provide insurance to cover the
judgment against it. 845 S.W.2d at 796–98. The court held that res judicata barred
the claims against the seller because the buyer could have asserted those claims
in the earlier suit despite their contingency. Id. at 799. From this, Appellants draw
their argument that once their identity has been established, their claims will no
longer be contingent.

51
cert. denied, 510 U.S. 820 (1993), and Hunt v. Bass, 664 S.W.2d 323, 324

(Tex. 1984). 50

According to Appellees, in contrast,

No matter how [the TEC parties] claim to have suffered injury,
a state statute says they have no standing to sue the Corporation or
its Trustees for violating fiduciary duties or corporate charters. Any
claim for breach of fiduciary duty owed to the Diocese or the
Corporation must be brought by those entities. Since [the TEC
parties’] counsel represent neither, they have no authority to bring
such claims for them.

Additionally, lawsuits claiming that the acts or property transfers
of a Texas nonprofit corporation violate its corporate purposes can be
brought only by a member or the Attorney General. [The TEC parties]
are neither; the Corporation has no “members,” and the Attorney
General is not a party.

Since [the TEC parties] severed all connection with the Diocese
and the Corporation and have no right to represent either, they have
no standing to complain about how either is governed.

50
In Hunt, several plaintiffs filed a petition for writ of mandamus after their
separate lawsuits were delayed because the commissioners’ court and
commissioners failed to provide adequate courtroom space and personnel. 664
S.W.2d at 324. The trial court determined that the plaintiffs had no standing to sue
for mandamus relief and dismissed their petition. Id. The supreme court held that
because each plaintiff was a party to a lawsuit pending in the district court (as
distinguished from the general public, which did not have lawsuits pending), and
because they had each alleged a failure of the court system to provide trials in
those lawsuits in a reasonable time, which potentially deprived each plaintiff of a
valuable property right, the plaintiffs had made sufficient allegations concerning
the infringement of their private rights to present justiciable interests, providing
them with standing for the mandamus action. Id.

52
[Footnotes omitted.] Appellees refer us to articles 1396-2.03(B) 51 and 1396-

2.08(A) 52 of the revised civil statutes 53 and Cotten v. Weatherford Bancshares,
54
Inc., 187 S.W.3d 687, 698 (Tex. App.—Fort Worth 2006, pet. denied),

disapproved of on other grounds by Ritchie v. Rupe, 443 S.W.3d 856, 865 n.9, 871

n.17, 877 (Tex. 2014), in support of their argument.

51
Act of Apr. 23, 1959, 56th Leg., R.S., ch. 162, art. 2.03(B), 1959 Tex. Gen.
Laws 286, 290 (listing who may bring a proceeding against the corporation with
regard to an ultra vires act—a member, the corporation itself through a receiver,
trustee, or other legal representative, or the Attorney General) (current version at
Tex. Bus. Orgs. Code Ann. § 20.002(c)(1)–(3) (West 2012)).
52
Act of Apr. 23, 1959, 56th Leg., R.S., ch. 162, art. 2.08(A), 1959 Tex. Gen.
Laws 286, 292 (“A corporation may have one or more classes of members or may
have no members.”) (current version at Tex. Bus. Orgs. Code Ann. § 22.151(a)
(West 2012)).
53
In their pleadings in the trial court, the parties appear to have at least
implicitly agreed that the applicable provisions of the former statutes and current
statutes in the business organizations code are largely the same, and neither party
has indicated to us that there are any substantive differences between the
Corporation’s law of formation and the current law. Accordingly, in the interest of
judicial economy, we will cite to the current sections of the business organizations
code.
54
We stated in Cotten,

While corporate officers owe fiduciary duties to the corporation
they serve, they do not generally owe fiduciary duties to individual
shareholders unless a contract or confidential relationship exists
between them in addition to the corporate relationship. Due to its
extraordinary nature, the law does not recognize a fiduciary
relationship lightly. Therefore, whether such a duty exists depends
on the circumstances.

187 S.W.3d at 698 (citations omitted).

53
 With regard to this particular case, standing turns at least in part on the

neutral principles analysis with which we have been tasked by the supreme court. 55

From the application of these neutral principles, we will determine whether the TEC

parties have an interest in the property or entities that would give them standing

for the claims that were resolved by the trial court’s final judgment. 56

55
The standing debate arose several times during the course of the
proceedings, summed up by Appellees at one hearing as,

The only argument that they [the TEC parties] have the right to argue
is whether they’re – the individuals are duly elected . . . . Because it’s
the nature of the claims that the individuals are bringing that only the
diocese and the diocesan corporation could bring. An individual who
sues in a representative capacity is suing on behalf of the individual
entity that the person represents.
56
We touched on this issue in In re Salazar, when Appellees filed a petition
for writ of mandamus after the trial court denied part of their motion to show
authority under rule of civil procedure 12 as to attorneys hired by the TEC parties
to represent the Corporation and EDFW in the property dispute. 315 S.W.3d at
281. The essence of that original proceeding was one of identity. See id. at 282,
284 (observing that both plaintiffs and defendants purported to represent EDFW
and the Corporation and that plaintiffs argued that the issue of the identity of the
true bishop and trustees was at the heart of the suit). We did not reach the
question of the “true identity” of the bishop and trustees because we agreed with
the trial court that a rule 12 motion was not the appropriate vehicle to reach the
merits of an intra-church dispute. Id. at 285.

Instead, because neither side challenged the trial court’s finding that the two
attorneys did not discharge their burden of proof, we concluded that the trial court
abused its discretion by not striking the pleadings filed by those attorneys on behalf
of the Corporation and EDFW. Id. at 286. We granted mandamus relief because
a corporation cannot sue itself, and we reasoned that presentations from two
opposing factions each claiming to be the Corporation and EDFW could
unnecessarily confuse a trier of fact. Id. at 287.

54
 Additionally, we note that the ecclesiastical abstention doctrine, which arises

from the Free Exercise Clause of the First Amendment to the United States

Constitution, may also affect our jurisdiction to consider some of the claims. See

U.S. Const. amend. I (“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof.”); Masterson, 422 S.W.3d at

601 (observing that the Free Exercise clause severely circumscribes the role that

civil courts may play in resolving church property disputes by prohibiting civil courts

from inquiring into matters concerning theological controversy, church discipline,

ecclesiastical government, or conformity of church members to the church’s moral

standards).

1. Neutral Principles Framework

The structural underpinning of our review of the trial court’s judgment begins

with a review of cases from the U.S. Supreme Court on the evolution of the

applicable law, followed by a closer look at Masterson and other cases to which

the parties have referred us.

a. Precedent and Persuasive Authority

(1) United States Supreme Court Cases

(a) Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871).

Watson, which set out the original “deference” methodology applicable to

hierarchical churches, arose from a schism that presented the question “as to

which of two bodies shall be recognized as the Third or Walnut Street Presbyterian

Church,” as well as who had the authority to lead it and to possess the church’s

55
property. 80 U.S. at 717–18. The local church’s trustees had incorporated to hold

title to the property in trust “for the use of the persons who by the constitution,

usages, and laws of the Presbyterian body, are entitled to that use,” and were

elected by the local church’s congregation for two-year terms. Id. at 720.

The Court noted that for congregational—that is, independent, stand-

alone—churches undergoing a schism into “distinct and conflicting bodies, the

rights of such bodies to the use of the property must be determined by the ordinary

principles which govern voluntary associations.” Id. at 724–25. In such

circumstances, if no trust was previously imposed upon the property when

purchased or given, the court would not imply one, the majority would keep the

property, and “[t]he minority in choosing to separate themselves into a distinct

body, and refusing to recognize the authority of the governing body, can claim no

rights in the property from the fact that they had once been members of the church

or congregation.” Id. at 725.

But the Court treated a local church’s membership in a hierarchical church—

part of a large and general organization of some religious denomination that is

“more or less intimately connected by religious views and ecclesiastical

government”—differently. Id. at 726. The Court acknowledged that the property’s

legal documents did not indicate its disposition. 57 Id. Rather, the property was

57
The Court stated, “Here is no case of property devoted forever by the
instrument which conveyed it, or by any specific declaration of its owner, to the

56
purchased for the use of a religious congregation, “and so long as any existing

religious congregation can be ascertained to be that congregation, or its regular

and legitimate successor, it is entitled to the use of the property.” Id. (emphasis

added). Instead of looking to the rules that govern voluntary associations to

determine identity or succession, the Court stated that in cases involving a

hierarchical church, 58 “we are bound to look at the fact that the local congregation

is itself but a member of a much larger and more important religious organization,

and is under its government and control, and is bound by its orders and judgments”

with regard to “questions of discipline, or of faith, or ecclesiastical rule, custom, or

law” that have been decided by the highest of the hierarchical church’s judicatories,

and to accept those decisions as final and binding “in all cases of ecclesiastical

cognizance.” Id. at 726–27, 729.

In resolving the matter in favor of the local faction that had remained with

the national, hierarchical church, the Court stated,

Whatever may have been the case before the Kentucky court, the
appellants in the case presented to us have separated themselves
wholly from the church organization to which they belonged when this
controversy commenced. They now deny its authority, denounce its

support of any special religious dogmas, or any peculiar form of worship. . . .”
Watson, 80 U.S. at 726.
58
The Court specifically identified the “Protestant Episcopal” church as one
of the “large and influential bodies [with] . . . a body of constitutional and
ecclesiastical law of its own, to be found in [its] written organic laws, [its] books of
discipline, in [its] collections of precedents, in [its] usage and customs, which as to
each constitute a system of ecclesiastical law and religious faith that tasks the
ablest minds to become familiar with.” Watson, 80 U.S. at 729.

57
 action, and refuse to abide by its judgments. They have first erected
themselves into a new organization, and have since joined
themselves to another totally different, if not hostile, to the one to
which they belonged when the difficulty first began.

Id. at 734. Accordingly, the Court concluded, “the appellants, in their present

position, have no right to the property, or to the use of it, which is the subject of

this suit.” Id.

Watson governed church property disputes until neutral principles made an

appearance, see Windwood Presbyterian Church, Inc. v. Presbyterian Church

(U.S.A.), 438 S.W.3d 567, 602 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (op.

on reh’g) (referencing Justice Brennan’s concurring opinion in Maryland & Va.

Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367,

370, 90 S. Ct. 499, 501 (1970) (Brennan, J., concurring)), 59 and elements of it

remain in play. See Masterson, 422 S.W.3d at 602 (stating that deference is not

optional when ecclesiastical questions are at issue).

59
Maryland ended in dismissal from the U.S. Supreme Court because the
state court’s resolution of the church property dispute involved no inquiry into
religious doctrine. 396 U.S. at 367–68, 90 S. Ct. at 499–500. In his concurring
opinion, Justice Brennan recited that under Watson, a majority of a congregational
church or the highest authority of a hierarchical church could make the property
decision “unless ‘express terms’ in the ‘instrument by which the property is held’
condition the property’s use or control in a specified manner” as long as those
express conditions may be effected without consideration of doctrine and as long
as the appropriate church governing body can be determined without the resolution
of doctrinal questions and without extensive inquiry into religious policy. 396 U.S.
at 368–70 & n.2, 90 S. Ct. at 500–01 & n.2 (Brennan, J., concurring).

58
 (b) Kedroff v. St. Nicholas Cathedral of Russian Orthodox
Church in North America, 344 U.S. 94, 73 S. Ct. 143
(1952).

Kedroff involved a dispute over the right to use and occupy a church building.

344 U.S. at 95, 73 S. Ct. at 144. The American branch of the Russian Orthodox

Church had created a corporation under New York state law in 1925 to acquire a

cathedral as “a central place of worship and residence of the ruling archbishop.”

Id., 73 S. Ct. at 144. Title was in the corporation’s name. Id. at 96 n.1, 73 S. Ct.

at 144 n.1. The only issue was who had the right to use the cathedral—Archbishop

Leonty, who was elected to his ecclesiastical office by the American churches, or

Archbishop Benjamin, 60 who was appointed by the Supreme Church Authority of

the Russian Orthodox Church in Moscow. Id. at 96 & n.1, 73 S. Ct. at 144 & n.1.

The Court observed that determination of the right to use and occupy the cathedral

depended “upon whether the appointment of Benjamin by the Patriarch or the

election of the Archbishop for North America by the convention of the American

churches validly selects the ruling hierarch for the American churches.” Id. at 96–

97, 73 S. Ct. at 144.

The lower state courts concluded that the cathedral had to be occupied by

an archbishop appointed by the central authorities in Moscow (i.e., Benjamin).

60
Benjamin ordained Kedroff as a priest, and Kedroff then “gave” the
cathedral to Benjamin. See Saint Nicholas Cathedral of Russian Orthodox Church
in N. Am. v. Kedroff, 96 N.E.2d 56, 67 (1950), rev’d sub nom. Kedroff, 344 U.S.
94, 73 S. Ct. 143 (1952).

59
Saint Nicholas, 96 N.E.2d at 67. The highest state court disagreed, relying on a

state statute that “had a conclusive effect upon the issues presented,” in addition

to the fact that the lower courts had not determined whether Benjamin et al. “could

be relied upon to carry out faithfully and effectively the purposes of the religious

trust,” and the fact that the Moscow patriarchy functioned “as an arm of the Russian

Government to further its domestic and foreign policy.” Id. at 67–68. The statute

upon which the state court relied purported to define the “Russian Church in

America,” and to define “Russian Orthodox church” as a term of art “to denote the

particular local buildings or organizations of the Russian Orthodox faith as

distinguished from the spiritual church” and, using that term of art, purported to

identify who was the church’s leader. Id. at 69–70 (quoting the statute, which

provided, in pertinent part, that “[e]very Russian Orthodox church in this state . . .

shall recognize and be and remain subject to the jurisdiction and authority of

the . . . governing bodies and authorities of the Russian Church in America,

pursuant to the statutes for the government thereof adopted at a general

convention . . . held in the city of New York”). The state court relied on the

legislative determination that the “Russian Church of America” was the trustee that

could be relied upon “to carry out more effectively and faithfully the purposes of

th[e] religious trust.” Id. at 72.

Predictably, the losing party in the state court appealed to the Court,

challenging the state statute as invalid based on interference with the exercise of

religion. Kedroff, 344 U.S. at 100, 73 S. Ct. at 146. The statute had come into

60
being because of “differences between the Mother Church and its American

offspring.” Id. at 105, 73 S. Ct. at 149. The Court concluded that because the

statute undertook by its terms to transfer the control of the New York churches of

the Russian Orthodox religion from the central governing hierarchy of the Russian

Orthodox Church—the Patriarch of Moscow and the Holy Synod—to the governing

authorities of the Russian Church in America, it violated the Fourteenth

Amendment. Id. at 107–08, 73 S. Ct. at 150 (“Legislation that regulates church

administration, the operation of the churches, [and] the appointment of clergy, by

requiring conformity to church statutes” adopted by the general convention of the

Russian Church in America held in New York City in 1937 “prohibits the free

exercise of religion”). This was impermissible, even though the legislature had

sought to protect “the American group from infiltration of [the Russian

Government’s] atheistic or subversive influences” when the legislature gave the

use of the churches to the American group “on the theory that this church would

most faithfully carry out the purposes of the religious trust.” Id. at 109–10, 73 S. Ct.

at 151.

The Court then proceeded to review its precedent with regard to hierarchical

churches, which it defined as “those organized as a body with other churches

having similar faith and doctrine with a common ruling convocation or ecclesiastical

head.” Id. at 110–14, 73 S. Ct. at 151–53 (referencing Watson, 80 U.S. at 727).

The Court concluded that the controversy over the right to use the cathedral was

“strictly a matter of ecclesiastical government, the power of the Supreme Church

61
Authority of the Russian Orthodox Church to appoint the ruling hierarch of the

archdiocese of North America,” and that the statute, by fiat, displaced one church

administrator with another and passed the control of strictly ecclesiastical matters

from one church authority to another in violation of the federal constitution. Id. at

115–16, 119, 73 S. Ct. at 154–56 (“Freedom to select the clergy, where no

improper methods of choice are proven . . . must now be said to have federal

constitutional protection as a part of the free exercise of religion against state

interference.”).

In sum, then, the transfer by statute of control over churches, including the

determination thereby of church leadership, violates the constitutional rule of

separation between church and state. Id. at 110, 73 S. Ct. at 151; see also Kreshik

v. Saint Nicholas Cathedral, 363 U.S. 190, 191, 80 S. Ct. 1037, 1038 (1960)

(applying the same rule to judicial pronouncements). But at issue in the case

before us is not a statute that may or may not unconstitutionally infringe upon the

parties’ freedom of religion or the identification of religious leadership. Rather, we

are to consider our business organizations, property, and trust statutes within the

confines of the nondoctrinal portions of the parties’ governing documents to

determine whether the Corporation followed its articles and bylaws and whether a

trust or trusts were created, and if so, for whom.

62
 (c) Presbyterian Church v. Mary Elizabeth Blue Hull
Memorial Presbyterian Church, 393 U.S. 440, 89 S. Ct.
601 (1969).

Presbyterian Church, which involved a church property dispute in which two

local churches withdrew from a hierarchical national church, formalized the neutral

principles framework as an option for resolving such disputes. 393 U.S. at 441,

449, 89 S. Ct. at 602, 606. In 1966, the membership of two local churches, under

the leadership of their ministers and most of their ruling elders, voted to withdraw

and reconstitute themselves as autonomous organizations after they concluded

that some of the national church’s actions and pronouncements violated the

organization’s constitution and departed from the doctrine and practice that were

in force at the time they affiliated. Id. at 442–43, 89 S. Ct. at 602–03. The state

courts considered the implied trust theory and integrated a departure-from-doctrine

element that allowed a jury to conclude that the local churches should retain their

property. Id. at 443–44, 449–50, 89 S. Ct. at 603, 606.

The Court noted that while the First Amendment severely circumscribes the

role that civil courts may play in resolving church property disputes, not all such

disputes are precluded from the civil courts’ consideration. Id. at 447, 449, 89 S.

Ct. at 605–06 (observing that in Kedroff, the Court converted into a constitutional

rule Watson’s principle as to the binding and conclusive nature of a hierarchical

court’s ecclesiastical decisions in the absence of fraud or collusion, even when

affecting civil rights). Specifically, “there are neutral principles of law, developed

for use in all property disputes, which can be applied without ‘establishing’

63
churches to which property is awarded.” Id. at 449, 89 S. Ct. at 606. But to do

this, states, religious organizations, and individuals must structure relationships

involving church property so as not to require the civil courts to resolve

ecclesiastical questions. Id., 89 S. Ct. at 606.

Accordingly, the Court reversed the decision of the state court as violating

the First Amendment because the departure-from-doctrine element required the

state court to determine matters at the very core of a religion—whether the general

church’s challenged actions departed substantially from prior doctrine pursuant to

the court’s interpretation of the doctrine’s meaning and then, after assessing the

relative significance to the religion of the tenets from which departure was found,

whether the issue on which the general church departed “holds a place of such

importance in the traditional theology as to require that the trust be terminated.”

Id. at 449–50, 89 S. Ct. at 606–07. The Court remanded the case for further

proceedings. Id. at 452, 89 S. Ct. at 607 (stating that a civil court may no more

review a church decision applying a state departure-from-doctrine standard than it

may apply that standard itself).

On remand, the state court held that, in light of the Supreme Court’s

pronouncement on the departure-from-doctrine element, the implied-trust theory

itself was no longer valid. Presbyterian Church in U.S. v. E. Heights Presbyterian

Church, 167 S.E.2d 658, 659 (Ga. 1969), cert. denied, 396 U.S. 1041 (1970).

Accordingly, because no trust was created for the general church in the property’s

deed or required by the general church’s constitution, and because the general

64
church had put no funds into the property, legal title to the property remained with

the local churches. Id. at 659–60.

(d) Serbian Eastern Orthodox Diocese for the United States
of America & Canada v. Milivojevich, 426 U.S. 696, 96 S.
Ct. 2372 (1976).

Milivojevich involved a challenge to the suspension, removal, and defrocking

of a bishop in—and the reorganization of his diocese into three dioceses by—the

Serbian Orthodox Church. 426 U.S. at 697–98, 96 S. Ct. at 2375. The basic

dispute, according to the Court, arose from a quarrel over control of the Serbian

Eastern Orthodox Diocese for the United States of America and Canada, its

property, and its assets. Id. at 698, 96 S. Ct. at 2375. Years before the dispute

arose, the Serbian Eastern Orthodox Diocese for the United States and Canada

and other nonprofit corporations were organized under the state laws of Illinois,

New York, California, and Pennsylvania to hold title to property. Id. at 701–02, 96

S. Ct. at 2377. In the years immediately before the dispute, the bishop had been

the subject of numerous complaints challenging his fitness to serve and his

administration of the diocese. Id. at 702, 96 S. Ct. at 2377. He subsequently

refused to accept either his suspension or the reorganization of his diocese on the

basis that they were not done in compliance with the Mother Church’s constitution

and laws and his diocese’s constitution. Id. at 704, 96 S. Ct. at 2378. This

65
ultimately led to his defrocking and his diocese’s declaration that it was

autonomous. Id. at 705–06, 96 S. Ct. at 2379.

Prior to his defrocking, the bishop had sued to enjoin the Mother Church

from interfering with the assets of the nonprofit corporations and to have himself

declared the true bishop. Id. at 706–07, 96 S. Ct. at 2379. The Mother Church’s

representatives counterclaimed for a declaration that he had been removed as

bishop and that the diocese was properly reorganized, and they sought control of

the reorganized dioceses and diocesan property. Id. at 707, 96 S. Ct. at 2379.

The Illinois trial court granted summary judgment for the ex-bishop and dismissed

the Mother Church’s countercomplaints. Id., 96 S. Ct. at 2379. After the

intermediate appellate court reversed that judgment and remanded the case for a

trial on the merits, the trial court gave each side some relief. Id. at 707–08, 96

S. Ct. at 2379–80.

In its judgment on remand, the trial court concluded that no substantial

evidence was produced that fraud, collusion, or arbitrariness existed in any of the

actions or decisions before or during the final proceedings of the defrocking

decision; that the property held by the corporations was held in trust for all

members of the American-Canadian Diocese; that the Mother Church exceeded

its authority by dividing the diocese into three new dioceses; and that the new

bishop was validly appointed as temporary administrator of the whole diocese in

place of the defrocked bishop. Id., 96 S. Ct. at 2379–80.

66
 The Illinois Supreme Court reversed part of the trial court’s judgment,

holding that the ex-bishop’s removal and defrocking had to be set aside because

the proceedings resulting in those actions “were procedurally and substantively

defective under the internal regulations of the Mother Church and were therefore

arbitrary and invalid” when not conducted according to the court’s interpretation of

the Mother Church’s constitution and penal code, and it purported to reinstate him.

Id. at 698, 708, 96 S. Ct. at 2375, 2380. But it affirmed part of the trial court’s

judgment, agreeing that the diocesan reorganization was invalid as beyond the

Mother Church’s scope of authority to do so without diocesan approval. Id. at 708,

96 S. Ct. at 2380.

Thirteen years after the litigation’s inception, the U.S. Supreme Court

reversed the Illinois Supreme Court’s judgment, holding that the inquiries that the

Illinois court had made “into matters of ecclesiastical cognizance and polity and

[its] actions pursuant thereto contravened the First and Fourteenth Amendments.”

Id. at 698, 706–07, 96 S. Ct. at 2375, 2379.

Specifically, the Court stated that the “fallacy fatal to the judgment of the

Illinois Supreme Court is that it rests upon an impermissible rejection of the

decisions of the highest ecclesiastical tribunals of this hierarchical church upon the

issues in dispute” and that the court had impermissibly substituted its own inquiry

into church polity and the resolutions based thereon to those disputes. Id. at 708,

96 S. Ct. at 2380. The state supreme court’s conclusion that the Mother Church’s

decisions were “arbitrary” was based on the court’s conclusion that the Mother

67
Church had not followed its own laws and procedures in arriving at those decisions.

Id. at 712–13, 96 S. Ct. at 2382. But, as the Court pointed out, there is no

“arbitrariness” exception to the First Amendment. Id. at 713, 96 S. Ct. at 2382.

“[R]ecognition of such an exception would undermine the general rule that religious

controversies are not the proper subject of civil court inquiry, and that a civil court

must accept the ecclesiastical decisions of church tribunals as it finds them.” Id.,

96 S. Ct. at 2382.

Because the case’s resolution “essentially involve[d] not a church property

dispute, but a religious dispute the resolution of which . . . is for ecclesiastical and

not civil tribunals,” the state supreme court had overstepped its authority. Id. at

709, 717, 721, 96 S. Ct. at 2380, 2384, 2386 (observing that there was no dispute

that questions of church discipline and the composition of the church hierarchy

were at the core of ecclesiastical concern). The hierarchical church’s religious

bodies made the decisions to suspend and defrock the bishop, and the authority

to make those decisions was vested solely in them. Id. at 717–18, 96 S. Ct. at

2384. And as to the diocesan reorganization, the court had impermissibly

substituted its own interpretations of the diocesan and Mother Church’s

constitutions for that of the highest ecclesiastical tribunals in which church law

vested authority. Id. at 720–21, 96 S. Ct. at 2386 (noting that reorganization of the

diocese involved a matter of internal church government, an issue at the core of

ecclesiastical affairs).

68
 The Court noted in a footnote, “No claim is made that the ‘formal title’

doctrine by which church property disputes may be decided in civil courts is to be

applied in this case.” 61 Id. at 723 n.15, 96 S. Ct. at 2387 n.15. The Court observed,

“Whether corporate bylaws or other documents governing the individual property-

holding corporations may affect any desired disposition of the Diocesan property

is a question not before us.” 62 Id. at 724, 96 S. Ct. at 2387. The Court nonetheless

noted that the Mother Church’s decisions to defrock the bishop and to reorganize

the diocese “in no way change[d] formal title to all Diocesan property, which

continue[d] to be in the respondent property-holding corporations in trust for all

members of the reorganized Dioceses; only the identity of the trustees is altered

by the Mother Church’s ecclesiastical determinations.” See id. at 723 n.15, 96

S. Ct. at 2387 n.15.

Accordingly, Milivojevich instructs us to confine our analysis to formal title,

corporate bylaws, and other documents prevalent in the management of non-

religious entities rather than to attempt to interpret internal church government—

61
The “formal title” doctrine became the neutral principles approach. See
Milivojevich, 426 U.S. at 723 n.15, 96 S. Ct. at 2387 n.15.
62
A dissenting justice would have held that the state court’s jurisdiction had
been invoked by both parties with regard to the church property and claims to
diocesan authority, thus entitling the state court to ask “if the real Bishop of the
American-Canadian Diocese would please stand up.” 426 U.S. at 725–26, 96 S.
Ct. at 2388 (Rehnquist, J., dissenting).

69
the core of which pertains not to business but rather to the mysteries of faith—and

to avoid ecclesiastical determinations like any other proverbial plague.

(e) Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020 (1979).

In Jones, the United States Supreme Court addressed a dispute over the

ownership of church property following a schism in a local church affiliated with a

hierarchical church organization; in particular, it considered the question of which

faction of a formerly united congregation was entitled to possession and enjoyment

of the disputed property. 443 U.S. at 597, 602, 99 S. Ct. at 3022, 3024. The Court

once more acknowledged that the First Amendment “prohibits civil courts from

resolving church property disputes on the basis of religious doctrine and practice.”

Id. at 602, 99 S. Ct. at 3025 (citing Milivojevich, 426 U.S. at 710, 96 S. Ct. at 2381;

Maryland, 396 U.S. at 368, 90 S. Ct. at 500 (Brennan, J., concurring); Presbyterian

Church, 393 U.S. at 449, 89 S. Ct. at 606). That is, a civil court can resolve a

church property dispute “‘so long as it involves no consideration of doctrinal

matters, whether the ritual and liturgy of worship or the tenets of faith.’” Id., 99

S. Ct. at 3025 (quoting Maryland, 396 U.S. at 368, 90 S. Ct. at 500 (Brennan, J.,

concurring)). It held that the neutral principles approach was consistent with the

federal constitution when merely looking to the language of the deeds, the terms

of the local church charters, state statutes, and the provisions of the constitution

70
of the general church concerning the ownership and control of church property. Id.

at 602–03, 99 S. Ct. at 3025.

The Court approved of this methodology because before any dispute arises,

a religious group could determine its priorities as to the disposition of church

property and enshrine those priorities under the applicable civil law, making it easy

both on themselves and the court system:

[t]hrough appropriate reversionary clauses and trust provisions,
religious societies can specify what is to happen to church property in
the event of a particular contingency, or what religious body will
determine the ownership in the event of a schism or doctrinal
controversy [and] . . . [i]n this manner, a religious organization can
ensure that a dispute over the ownership of church property will be
resolved in accord with the desires of the members.

....

. . . At any time before the dispute erupts, the parties can
ensure, if they so desire, that the faction loyal to the hierarchical
church will retain the church property. They can modify the deeds or
the corporate charter to include a right of reversion or trust in favor of
the general church. Alternatively, the constitution of the general
church can be made to recite an express trust in favor of the
denominational church. The burden involved in taking such steps will
be minimal. And the civil courts will be bound to give effect to the
result indicated by the parties, provided it is embodied in some legally
cognizable form.

Id. at 603–04, 606, 99 S. Ct. at 3025–26, 3027.

The Court cautioned that in reviewing church documents, if the interpretation

of instruments of ownership would require a civil court to resolve a religious

controversy, then the court would have to defer to the resolution of the doctrinal

issue by the authoritative ecclesiastical body. Id. at 604, 99 S. Ct. at 3026.

71
 In addressing which faction was entitled to control local church property, the

Court identified as a fact question for remand whether Georgia had adopted a

presumptive rule of majority representation with regard to a voluntary religious

association’s being represented by the majority of its members or whether the

corporate charter or constitution of the general church set out how the identity of

the local church was to be established if not by majority rule. Id. at 607–08, 99

S. Ct. at 3027–28 (observing that majority rule is generally employed in the

governance of religious societies and that a majority faction generally can be

identified without resolving any question of religious doctrine or polity). The Court

observed that if state law provided for the identity of the church to be determined

according to the general hierarchical church’s “laws and regulations,” then the First

Amendment would require the civil courts to give deference to the church’s

determination of the local church’s identity. Id. at 609, 99 S. Ct. at 3028. The

implicit corollary of this statement would be that if state law did not provide for the

church’s identity to be determined by the general hierarchical church’s laws and

regulations, then the court would need to examine everything else to identify the

property’s owners. 63

63
The parties have brought no such state statute to our attention—and we
have found none—that would allow us to so facilely dispose of this appeal. Cf.
Calvin Massey, Church Schisms, Church Property & Civil Authority, 84 St. John’s
L. Rev. 23, 34 (2010) (“Virginia has adopted a statute directing courts how to
decide church property disputes when churches divide into contending factions.”
(citing Va. Code Ann. § 57-9)). On remand from the U.S. Supreme Court, the state
court in Jones held that while the state’s rebuttable presumption of majority rule
could be overcome by reliance on neutral statutes, corporate charters, relevant

72
 Accordingly, Jones instructs us that we must perform a non-religious-

doctrine-related review, within the context of our state law, of the language of the

deeds and the provisions dealing with ownership and control of property contained

within the local and general churches’ governing documents—i.e., the plain

language to ascertain the parties’ intent—but that if we attempt to divine ownership

from the church’s ritual and liturgy of worship or the tenets of its faith, or if

interpreting the parties’ documents would require us to resolve a faith-based

controversy, then we veer into constitutionally-prohibited territory.

(f) Hosanna-Tabor Evangelical Lutheran Church & School
v. E.E.O.C., 565 U.S. 171, 132 S. Ct. 694 (2012).

In Hosanna-Tabor, the Court recently addressed a related ecclesiastical

matter, reviewing whether the Establishment and Free Exercise Clauses of the

First Amendment bar an employment discrimination lawsuit when the employer is

a religious group and the employee is one of the group’s ministers. 565 U.S. at

176–77, 132 S. Ct. at 699. Cheryl Perich went from an elementary school “lay”

(also known as “contract”) teacher to a “called” (also known as “Minister of

Religion, Commissioned”) teacher—both positions of which generally performed

the same duties—at a religious school. Id. at 177–78, 132 S. Ct. at 699–700.

Following an employment dispute, Perich’s employer’s congregation voted to

deeds, and the organizational constitutions of the denomination, none of these
sources in that case disclosed a provision that would rebut the majority-rule
presumption. Jones v. Wolf, 260 S.E.2d 84, 84–85 (Ga. 1979), cert. denied, 444
U.S. 1080 (1980).

73
rescind her “call,” and her employment was terminated. Id. at 178–79, 132 S. Ct.

at 700. After reviewing Kedroff and Milivojevich, among others, the Court

reaffirmed that it is impermissible for the government to contradict a church’s

determination of who can act as its ministers and recognized the “ministerial

exception” as to the employment relationship between a religious institution and

its ministers. Id. at 185–88, 132 S. Ct. at 704–06 (reasoning that to require a

church to accept or retain an unwanted minister, or to punish a church for failing

to do so, intrudes not upon a mere employment decision but rather interferes with

the church’s internal governance and infringes upon the religious group’s right to

shape its own faith and mission through its appointments). 64 But see McConnell

& Goodrich, 58 Ariz. L. Rev. at 336 (explaining that in contrast to the ministerial

exception set out in Hosanna-Tabor, church property cases present a conflict

between two church entities through which state trust and property law is used to

64
In Hosanna-Tabor, the Court concluded that the ministerial exception
applied to Perich based on the circumstances of her employment: her ministerial
title in becoming a “called” teacher reflected the six years of religious education
that she had pursued to obtain the designation; her election by the congregation,
“which recognized God’s call to her to teach”; Perich’s having claimed a religious
exemption’s housing allowance on her taxes; and Perich’s having taught religion
four days a week and led her students in prayer three times a day, performing “an
important role in transmitting the Lutheran faith to the next generation.” 565 U.S.
at 190–92, 132 S. Ct. at 707–08. Accordingly, the Court held that because Perich
was a minister under the exception, the First Amendment required dismissal of her
employment discrimination suit against her religious employer. Id. at 194–95, 132
S. Ct. at 709 (observing that the exception ensures “that the authority to select and
control who will minister to the faithful—a matter ‘strictly ecclesiastical’—is the
church’s alone”).

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discern the church’s original decision and to give legal effect to that decision, not

a conflict between civil law and internal church rules).

(2) Supreme Court of Texas Cases

(a) Masterson v. Diocese of Northwest Texas, 422 S.W.3d
594 (Tex. 2013), cert. denied, 135 S. Ct. 435 (2014).

As instructed by our supreme court in Episcopal Diocese, we also look to

Masterson. See Episcopal Diocese, 422 S.W.3d at 653. In Masterson, the court

addressed what happens to property when a majority of the membership of a local

church—rather than an entire diocese—votes to withdraw from the larger religious

bodies of which it has previously been a part—specifically, TEC and the Episcopal

Diocese of Northwest Texas. 422 S.W.3d at 596. As in the case before us, legal

title to the local church’s property was held by a Texas nonprofit corporation. Id.

A doctrinal dispute with TEC led a majority of the local church’s members to vote

to amend the corporation’s articles of incorporation and bylaws to revoke any trusts

in favor of TEC or the diocese that were on the property. Id. at 596, 598.

Predictably, a lawsuit over the property’s possession and use followed. Id.

The court traced the parties’ background, starting in 1961 when individuals

bought some of the land at issue and donated it to the Northwest Texas Episcopal

Board of Trustees for establishment of a mission church. Id. at 597. Four years

later, a group of worshippers filed an application with the diocese to organize a

mission, which the diocese approved. Id. TEC made loans and grants to the

church to assist its growth. Id. More individuals bought more land and donated it

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to the church’s board of trustees, and in 1974, the church applied for parish status

with the diocese and received it. Id. The diocesan canons required that parishes

be corporations, 65 so the church incorporated under Texas law. Id. All of the

property was conveyed to the corporation; none of the deeds to the corporation

provided for or referenced a trust in favor of TEC or the diocese. Id.

The corporation’s bylaws provided that it would be managed by a vestry

elected by members of the parish and that those elected members “shall hold office

in accordance with the Church Canons.” Id. at 597 & n.1. The bylaws also

described the qualifications for voting at parish meetings—being a communicant

of the parish as shown on the parish register, at least sixteen years old, baptized,

and a regular contributor according to the treasurer’s records—and specified that

amendments to the bylaws would be by majority vote at an annual parish meeting

or at a special meeting called for that purpose by a majority vote of the duly

qualified voters of the parish. Id. at 597 & nn.2–3.

Pursuant to the bylaws, the parish held a called meeting in November 2006,

seeking—among other things—to amend the corporate bylaws to remove all

references to TEC and the diocese and to revoke any trusts that may have been

imposed on any of the corporation’s property by TEC, the diocese, or the original

trustees. Id. at 598. After the resolutions passed by majority vote, amended

65
In contrast, here, under EDFW’s canons, parishes and missions may form
a corporation as an adjunct or instrument but may not incorporate themselves.

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articles of incorporation changing the corporate name from “The Episcopal Church

of the Good Shepherd” to the “Anglican Church of the Good Shepherd” were filed.

Id. In conjunction with these acts, the majority of the church’s members withdrew

from the diocese and TEC and retained possession of the parish property. Id.

Like the first round of the case before us, in the ensuing litigation between

the church’s withdrawing faction and the faction that remained loyal to TEC and to

the diocese, the parties’ focus was on deference rather than the application of

neutral principles. Id. at 599. The trial court and the intermediate appellate court

both relied on deference to identify the continuing parish and the proper custodians

of the church’s property. Id. After reviewing both its own and U.S. Supreme Court

precedent, our supreme court acknowledged the “neutral principles” methodology

as the sole applicable methodology, requiring courts to decide non-ecclesiastical

issues such as property ownership based on the same neutral principles of law

applicable to other entities while deferring to religious entities’ decisions on

ecclesiastical and church polity issues. Id. at 596, 601–07.

The supreme court concluded that TEC is a hierarchical organization. Id. at

608. But the court clarified that the question of identifying who owns the property

is not necessarily inextricably linked to or determined by ecclesiastical matters,

explaining that

[t]here is a difference between (1) the Bishop’s determining which
worshipers are loyal to the Diocese and TEC, whether those
worshipers constituted a parish, and whether a parish properly
established a vestry, and (2) whether the corporation’s bylaws were

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 complied with when the vote occurred to disassociate the corporation
from the Diocese and TEC.

Id. That is, the corporation, with its secular existence derived from state law and

its articles of incorporation and bylaws, is subject to a neutral principles

determination. Id. Accordingly, the court reversed the judgment of the court of

appeals and remanded the case to the trial court to apply the neutral principles

methodology. Id.

The court noted that the trial court lacked jurisdiction over whether the

diocese’s bishop was authorized to form a new parish and recognize its

membership and whether he could or did authorize that parish to establish a vestry

or recognize members of the vestry because these items were ecclesiastical

matters of church governance, questions upon which the trial court properly

deferred to the bishop’s exercise of ecclesiastical authority. Id.

The court also took the opportunity, in the interest of judicial economy, to

address issues likely to be raised on remand in the trial court, some of which apply

directly to the case now before us and are summarized as follows:

• Absent specific, lawful provisions in a corporation’s articles of incorporation or
bylaws otherwise, whether and how a corporation’s directors or those entitled
to control its affairs can change its articles of incorporation and bylaws are
secular, not ecclesiastical matters, and an external entity—under the former or
current statutory scheme—is not empowered to amend them absent specific,
lawful provision in the corporate documents. Id. at 609–10 (citing Tex. Bus.
Orgs. Code § 3.009; Tex. Rev. Civ. Stat. Ann. art. 1396–2.09).

• The TEC-affiliated bishop could, as an ecclesiastical matter, determine which
faction of believers was recognized by and was the “true” church loyal to the
Diocese and TEC, and courts must defer to such ecclesiastical decisions, but
his decision identifying the loyal faction as the continuing parish does not

78
 necessarily determine the property ownership issue, and his decisions on
secular legal questions such as the validity of the parish members’ vote to
amend the bylaws and articles of incorporation are not entitled to deference.
Id. at 610.

• If the title to the real property is in the corporation’s name and the language of
the deeds does not provide for an express trust in favor of TEC or the Diocese,
then the corporation owns the property. Id.

• As to the Dennis Canon’s terms, which provide in part that “all real and personal
property held by or for the benefit of any Parish, Mission or Congregation is
held in trust for TEC,”—assuming, without deciding, that the Dennis Canon
attempted to impose a trust on the nonprofit corporation’s property and limited
the nonprofit corporation’s authority over the property—these terms do not
make a trust expressly irrevocable under Texas law. Id. at 613. To the contrary,
“[e]ven if the Canon could be read to imply the trust was irrevocable, that is not
good enough under Texas law. The Texas statute requires express terms
making it irrevocable.” Id.

(b) Brown v. Clark, 116 S.W. 360 (Tex. 1909).

In Brown, the 1909 case upon which the supreme court relied to resolve the

initial methodology issue in Masterson and Episcopal Diocese, the supreme court

was faced with a task similar to the one before us: two groups litigated over

property deeded “by different persons at different times to trustees for the

Cumberland Presbyterian Church at Jefferson, Tex.” 116 S.W. at 361. One group

claimed to constitute “the church session of the Cumberland Presbyterian Church

at the city of Jefferson, Tex.,” while the other claimed to be “the church session of

the Presbyterian Church in the United States of America at Jefferson, Tex.” Id.

At the time, nationally, the Cumberland Presbyterian Church and the

Presbyterian Church of the United States of America (PCUSA) had overcome their

differences and reunited. Id. The members of the Jefferson church held

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differences of opinion “upon the subject of reunion,” and those who opposed the

reunion sued those who claimed that the reunion had transferred the property to

PCUSA. Id. at 362. Upon the conclusion of a bench trial, the trial court agreed

with the PCUSA faction; the intermediate appellate court disagreed and reversed

the trial court’s judgment. Id.

The supreme court declined to address the argument that the national

churches could not reunite because the highest court of the church—to which the

decision of doctrine and the modification of the confession of faith were directed—

had exclusive jurisdiction over that question. Id. at 363–64. Instead, the only

question that the supreme court had jurisdiction to address was the effect the

reunion had on the property when the deed’s plain language was made “to the

trustees of the Cumberland Presbyterian Church at Jefferson, Tex.” 66 Id. at 364.

The supreme court concluded that the church to which the deed was made

still owned the property and that “whatever body is identified as being the church

to which the deed was made must still hold the title.” Id. at 364–65. In reaching

the conclusion that the property resided with the PCUSA faction, the court traced

the identity from the Cumberland-PCUSA reunion, stating,

The Cumberland Presbyterian Church at Jefferson was but a member
of and under the control of the larger and more important Christian
organization, known as the Cumberland Presbyterian Church, and the
local church was bound by the orders and judgments of the courts of
the church. The Jefferson church was not disorganized by the act of
union. It remained intact as a church, losing nothing but the word

66
The property had been paid for by the local church “in the ordinary way of
business.” Brown, 116 S.W. at 364.

80
 “Cumberland” from its name. Being a part of the Cumberland
Presbyterian Church, the church at Jefferson was by the union
incorporated into the Presbyterian Church of the United States of
America. . . . those members who recognize the authority of the
Presbyterian Church of the United States of America are entitled to
the possession and use of the property sued for.

Id. at 365. The supreme court affirmed the trial court’s judgment. Id.

(c) Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).

Our supreme court has previously acknowledged that when a church dispute

involves property or a contract and is purely secular, we have jurisdiction to

consider it. See Westbrook, 231 S.W.3d at 398–99. Westbrook involved a tort

action that arose from an act of church discipline (shunning) resulting from

counseling performed by the church’s pastor. Id. at 391.

The court first observed that the First Amendment prohibits governmental

action, including court action, that would burden the free exercise of religion by

encroaching on a church’s ability to manage its internal affairs, presenting a

question of subject matter jurisdiction reviewed sua sponte and de novo. Id. at

394 & n.3, 395 (“[T]he majority of courts broadly conceptualize the prohibition as

a subject-matter bar to jurisdiction.”); see M.O. Dental Lab v. Rape, 139 S.W.3d

671, 673 (Tex. 2004) (“[W]e are obligated to review sua sponte issues affecting

jurisdiction.”). To gauge the constitutional validity of a particular civil action, a court

must identify the nature of the constitutional and other interests at stake.

Westbrook, 231 S.W.3d at 396; see David J. Young & Steven W. Tigges, Into the

Religious Thicket-Constitutional Limits on Civil Court Jurisdiction over

81
Ecclesiastical Disputes, 47 Ohio St. L.J. 475, 499 (1986) (describing some steps

to take in analyzing intrachurch litigation). “In determining whether subject matter

jurisdiction exists, courts must look to the ‘substance and effect of a plaintiff’s

complaint to determine its ecclesiastical implication, not its emblemata.’”

Westbrook, 231 S.W.3d at 405 (quoting Tran v. Fiorenza, 934 S.W.2d 740, 743

(Tex. App.—Houston [1st Dist.] 1996, no writ). The difficulty comes in determining

whether a particular dispute is “ecclesiastical” or simply a civil law controversy in

which church officials happen to be involved. Tran, 934 S.W.2d at 743 (holding

that whether priest had been excommunicated—divesting him of his priestly

authority—was unavoidably an ecclesiastical matter even if the truth of that fact

would bar his defamation claim).

“‘Membership in a church creates a different relationship from that which

exists in other voluntary societies formed for business, social, literary, or charitable

purposes.’” Westbrook, 231 S.W.3d at 398 (quoting Minton v. Leavell, 297 S.W.

615, 622 (Tex. Civ. App.—Galveston 1927, writ ref’d)). Because a church’s

autonomy in managing its affairs has long been afforded broad constitutional

protections, the court must ask whether its decision of the issues would

“unconstitutionally impede the church’s authority to manage its own affairs.” Id. at

397.

Ultimately, in Westbrook, the court concluded that subjecting the church’s

pastor to tort liability for professional negligence as a counselor for engaging the

church’s disciplinary process once facts were revealed that triggered such

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discipline would have a “chilling effect” on the church’s ability to discipline

members and deprive churches of their right to construe and administer church

laws. Id. at 400. The court reasoned that

while the elements of Penley’s professional-negligence claim can be
defined by neutral principles without regard to religion, the application
of those principles to impose civil tort liability on Westbrook would
impinge upon [the church’s] ability to manage its internal affairs and
hinder adherence to the church disciplinary process that its
constitution requires.

Id. The secular confidentiality interest represented by Penley’s professional-

negligence claim failed to override the strong constitutional presumption that favors

preserving the church’s interest in managing its affairs, particularly when the

pastor’s actions did nothing to endanger Penley’s or the public’s health or safety.

Id. at 402, 404. The values underlying the constitutional interest in prohibiting

judicial encroachment upon a church’s ability to manage its affairs and discipline

its members, who have voluntarily united themselves to the church body and

impliedly consented to be bound by its standards, must be zealously protected,

and when presented with conflicting interests like those presented in Westbrook,

generally “a ‘spirit of freedom for religious organizations’ prevails, even if that

freedom comes at the expense of other interests of high social importance.” Id. at

403 (internal citations omitted). Accordingly, after liberally construing Penley’s

pleadings, the court held that the trial court properly dismissed the case on

Westbrook’s plea to the jurisdiction. Id. at 405.

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 (3) Intermediate Appellate Court Cases

This court’s cases involving churches have run the gamut, from the

relationship between a church and its ministers, which we recognized as of “prime

ecclesiastical concern,” to whether a church incorporated under the nonprofit

corporations act gave proper notice of a business meeting. Compare Smith v.

N. Tex. Dist. Council of Assemblies of God & House of Grace, No. 02-05-00425-

CV, 2006 WL 3438077, at *3 (Tex. App.—Fort Worth Nov. 30, 2006, no pet.) (mem.

op.) (affirming dismissal for want of jurisdiction when appellants sued for

declaration that church’s district council did not follow church constitution, bylaws,

and rules of procedure and for a division of church’s assets between two

congregations), Dean v. Alford, 994 S.W.2d 392, 395 (Tex. App.—Fort Worth

1999, no pet.) (holding that the vote on a pastor’s removal in a congregational

church involved a purely ecclesiastical, administrative matter), and Patterson v.

Sw. Baptist Theological Seminary, 858 S.W.2d 602, 603–04 (Tex. App.—Fort

Worth 1993, no writ) (affirming dismissal in wrongful termination suit because case

essentially involved a religious dispute, the “key inquiry under the First Amendment

[being] whether a religious organization is making an ecclesiastical decision”), with

Kelly v. Church of God In Christ, Inc., No. 02-10-00047-CV, 2011 WL 1833095, at

*13 n.18 (Tex. App.—Fort Worth May 12, 2011, pet. denied) (mem. op.) (avoiding

issue of whether negligence claims were barred by First Amendment by concluding

that the trial court properly granted summary judgment on the negligence claims),

and Randolph v. Montgomery, No. 02-06-00087-CV, 2007 WL 439026, at *1–2

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(Tex. App.—Fort Worth Feb. 8, 2007, no pet.) (mem. op.) (holding no intrusion into

ecclesiastical matters when issue was whether proper notice of business meeting

was given by church incorporated under nonprofit corporations act and trial court

merely had to apply statute’s plain language and apply neutral principles of law).

Yet, to the extent the application of neutral principles requires discussion and

analysis, the issues now before us appear to be of first impression. Cf. Smith,

2006 WL 3438077, at *3. 67 This is not so with some of our sister courts.

For example, the Amarillo court discussed the issue in African Methodist

Episcopal Church, Allen Chapel v. Independent African Methodist Episcopal

Church (AMEC), within the context of what the case was not: “[T]his is not one of

67
Smith involved an intracongregational dispute that arose after some
church members unsuccessfully sought a division of church assets. 2006 WL
3438077, at *1. One of the complaints raised in the ensuing litigation was that the
church constitution, bylaws, and rules of procedure had not been followed. Id. at
*2. We agreed that the trial court correctly dismissed the case for want of
jurisdiction when the plaintiffs’ claims asked the trial court to determine matters
involving clergy, church discipline, and ecclesiastical governance. Id. We noted
that the difficulty—as here—lies in determining whether a particular dispute is
ecclesiastical or simply a civil law controversy in which church officials happen to
be involved. Id. at *3. We held that “[m]atters involving the interpretation of church
bylaws and constitutions, the relationship between an organized church and its
minister, and the division of church assets are all ecclesiastical concerns.” Id.
(citing Milivojevich, 426 U.S. at 708–09, 724–25, 96 S. Ct. at 2380, 2387–88).
However, per the supreme court’s instructions in Episcopal Diocese and
Masterson, we are required to consider the division of church assets insofar as we
can determine ownership through the application of neutral principles and are
required in that analysis to consider church bylaws and constitutions. See
Episcopal Diocese, 422 S.W.3d at 651–52; see also Masterson, 422 S.W.3d at
606 (observing that many disputes “will require courts to analyze church
documents and organizational structures to some degree”).

85
those suits where the local congregation becomes divided and each division claims

to have the right to the property to the exclusion of the other members.” 281

S.W.2d 758, 759 (Tex. Civ. App.—Amarillo 1955, writ ref’d n.r.e.) (emphasis

added). In AMEC, all of the property was bought and paid for by the local church,

the deed was made out to the trustees of the African Methodist Church of Vernon

and not to the mother church, and the entire membership of the local church—

including the pastor—quit the mother church. Id. at 759–60. When all of the

members withdrew from the mother church, dissolved the local church, and

organized under the name of Independent AMEC of Vernon, Texas, because the

trustees held the property in trust for the benefit of those who had bought and paid

for it, the court concluded that the property belonged to the local church. Id. at

760. Part of the rationale, however, was that this case preceded the ability of

unincorporated nonprofit associations to hold property in any form other than under

trustees. See id.; cf. Tex. Bus. Orgs. Code Ann. § 252.003 (West 2012) (providing

that nonprofit associations may acquire, hold, encumber, and transfer real and

personal property in this state).

The Texarkana court discussed the issue before us in Presbytery of the

Covenant v. First Presbyterian Church of Paris, Inc., 552 S.W.2d 865 (Tex. Civ.

App.—Texarkana 1977, no writ). In that case, the majority of the members of the

First Presbyterian Church of Paris sought to withdraw from the national church,

PCUSA, and to affiliate with another group. Id. at 867. The Presbytery of the

Covenant—one of PCUSA’s governing layers—sought to prevent the withdrawing

86
faction from taking possession of and asserting ownership to the church property,

and the withdrawing faction sued the Presbytery and others to try title. Id. After a

jury trial, the trial court rendered judgment for the withdrawing faction. Id. The

appellate court reversed the trial court’s judgment. Id. at 872.

On appeal, the court determined that prior to June 17, 1973—the date of the

attempted withdrawal—there was only one First Presbyterian Church of Paris,

which was affiliated with PCUSA and which had acquired all of the real property

involved at a time when there was no disagreement over the church property. Id.

at 867–69. Each of the deeds named as grantee either First Presbyterian Church

of Paris U.S. or the corporation First Presbyterian Church U.S. of Paris, Inc., which

was chartered in Texas in 1966 to hold property for the First Presbyterian Church

of Paris U.S. Id. at 869. On February 13, 1973, the Presbytery established an

administrative commission in anticipation that some of the local congregations

might attempt to withdraw from PCUSA and a pastoral letter required written

notices prior to calling a congregational meeting to consider a proposal to

withdraw. Id. The required written notices were not given; rather, on June 10,

1973, oral notice was given from the pulpit of the congregational meeting to be

held on June 17 to consider a resolution to withdraw from PCUSA. Id.

At the June 17, 1973 meeting, 101 of the 149 members on the church’s

active roll attended the meeting and voted for the withdrawal. Id. The Presbytery

turned the matter over to the administrative commission, which began a process

that resulted in the formal suspension and divestiture of the local church’s

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leadership, and in July 1973, the commission declared that the action taken to

withdraw was null and void. Id. at 869–70. The withdrawing faction transferred

the real property and assets owned by the First Presbyterian Church of Paris U.S.

to a corporation that they attempted to create by way of an amendment to the

charter of the First Presbyterian Church U.S. of Paris, Inc., and they affiliated with

a schismatic organization, the Vanguard Presbytery of the Continuing Presbyterian

Church. Id. at 870. Of the 149 members, 30 signed statements of loyalty and

desire to remain in the PCUSA-recognized church, and on September 13, 1973,

the administrative commission recognized them as constituting the First

Presbyterian Church of Paris U.S. Id.

The Texarkana court first identified the two general types of religious

organizations recognized in the law: (1) congregational, which is strictly

independent of any other ecclesiastical association and owes no fealty or

obligation to any higher authority, and (2) hierarchical, in which the local

congregation is but a subordinate member of some general church organization in

which there are superior ecclesiastical tribunals with general and ultimate power

of control more or less complete in some supreme judicatory over the whole

membership of that general organization. Id. PCUSA—like TEC—is recognized

as a hierarchical church, “at least as to ecclesiastical matters and church

government.” Id.

The Texarkana court acknowledged that civil courts’ power to resolve

disputes relating to church property was restricted to an adjudication of property

88
rights by the application of neutral principles of law developed for use in all property

disputes and that when a hierarchical organization is involved, the decisions of the

highest church judicatory to which the question has been taken, as to questions of

church discipline or government, are—so far as they are relevant—final and

binding on the civil courts, subject only to narrow review if found to have resulted

from fraud or collusion. Id. at 870–71. With regard to the issue before it, the

Texarkana court recited that

[w]hen a division occurs in a local church affiliated with a hierarchical
religious body, and a dispute arises between rival groups as to the
ownership or control of the local church property, the fundamental
question as to which faction is entitled to the property is answered by
determining which of the factions is the representative and successor
to the church as it existed prior to the division, and that is determined
by which of the two factions adheres to or is sanctioned by the
appropriate governing body of the organization. It is a simple question
of identity. In making such a determination, the civil court exercises
no role in determining ecclesiastical questions. It merely settles a
dispute as to identity, which in turn necessarily settles a dispute
involving property rights. In doing so, the court applies neutral
principles of law . . . .

Id. at 871 (citations omitted) (emphasis added).

Accordingly, the court reasoned that prior to June 17, 1973, the First

Presbyterian Church of Paris U.S. and all of its members were part of PCUSA’s

organization, and there was no question that members dissatisfied with PCUSA’s

actions could withdraw their membership from the First Presbyterian Church of

Paris U.S. and thus their affiliation with PCUSA. Id. But by their unilateral action,

the withdrawing members could not dissolve the local church that was an integral

part of PCUSA when the PCUSA constitution expressly vested in the presbytery

89
the power to dissolve a local church. Id. When the local church was not dissolved

and still existed after June 17, it became the prerogative of PCUSA’s governing

judicatories to determine who constituted the lawful congregation of the First

Presbyterian Church of Paris U.S. Id. Because the loyal faction had submitted

itself to PCUSA’s judicatories and had been recognized as such as the duly

existing local congregation, they had “the identity to make of them the First

Presbyterian Church of Paris U.S., and they are entitled to possession and control

of the property conveyed to that church.” Id.

Specifically, despite the vote by the majority to withdraw from PCUSA, the

members of a church organization “which is hierarchical as to church government

cannot dissolve a local church in contravention of the governing rules or edicts of

the mother church, and then re-establish themselves as an independent church or

one associated with a schismatic group and take the church property with them.”

Id. at 871–72. The church existed prior to the schism, still existed, and was

composed of those members who remained loyal to PCUSA and who had been

recognized by the governing judicatories as the local church. Id. at 872. The

question of the church’s right to withdraw from PCUSA without the consent of the

Presbytery was one of church government determined adversely to the

withdrawing faction by the appropriate church tribunals. Id.; see also Green, 808

S.W.2d at 548–49, 552 (relying on Presbytery of the Covenant to affirm trial court’s

judgment awarding possession of church property to loyalist group affiliated with

United Pentecostal Church International, Inc., a hierarchical church, which had

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adopted UPCI’s bylaws for local church government prior to the dispute over

property ownership). But see Masterson, 422 S.W.3d at 605 & n.5 (listing

Presbytery of the Covenant as one of the court of appeals cases reading Brown

as applying a deference approach and applying deference principles to

hierarchical church property dispute cases); Schismatic & Purported Casa Linda

Presbyterian Church in Am. v. Grace Union Presbytery, Inc., 710 S.W.2d 700, 705

(Tex. App.—Dallas 1986, writ ref’d n.r.e.) (stating that although the Texarkana

court purported to apply neutral principles in Presbytery of the Covenant, “the court

in fact applied the deference rule in reaching its decision”), 68 cert. denied, 484 U.S.

823 (1987).

Because the foregoing cases involved facts, legal principles, and analysis

similar to those facing us here, they provide guidance to us in conducting our

analysis.

68
Constitutionally speaking, the court in Presbytery of the Covenant did not
have a choice about applying deference in that case. Deed construction was not
an issue because each of the deeds named either First Presbyterian Church of
Paris U.S. or the First Presbyterian Church of Paris U.S., Inc. as grantee. 552
S.W.2d at 869. Instead, the primary questions before the court were (1) whether
PCUSA was hierarchical or congregational as to property and (2) who was the
“First Presbyterian Church of Paris U.S.”? Id. at 868, 870–72. The court’s answer
to the first question—PCUSA was hierarchical—determined the answer to the
second. Id. at 870–72; see Brown, 116 S.W. at 364–65 (holding that the church
that recognized the authority of PCUSA was “identified as being the church to
which the deed was made”).

91
 (4) Other States’ Cases

Because other courts have previously faced strikingly similar facts, we also

examine these cases to determine how those situations have been resolved.

(a) Diocese of San Joaquin

The annual convention of the Diocese of San Joaquin voted to leave TEC

and affiliate with the Anglican Province of the Southern Cone in December 2007.

Diocese of San Joaquin, 202 Cal. Rptr. 3d at 57. In January 2008, TEC disciplined

then-Bishop John-David Schofield, and Presiding Bishop Schori ordered him to

stop all “episcopal, ministerial, and canonical acts, except as relate to the

administration of the temporal affairs of the Diocese of San Joaquin.” Id.

Approximately a week later, Schofield filed with the California Secretary of State

an amendment to the articles of incorporation of the corporation sole 69 to change

its name from “The Protestant Episcopal Bishop of San Joaquin” to “The Anglican

Bishop of San Joaquin.” Id. He represented in the document that the amendment

had been duly authorized by the diocese, whose consent by annual convention

was required; however, the annual convention had neither considered nor

authorized any such amendment. Id. at 56–57.

Presiding Bishop Schori issued Schofield’s deposition on March 12, 2008,

terminating and vacating his ecclesiastical and related secular offices. Id. at 57–

69
Under California law, a corporation sole is a perpetual entity through which
a religious organization can administer and manage property dedicated to the
benefit of that organization. Diocese of San Joaquin, 202 Cal. Rptr. 3d at 56 n.1.

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58. Nonetheless, on March 27, 2008, Schofield began retitling twenty-seven

pieces of real property, first granting them to “The Anglican Bishop of San Joaquin,

a Corporate Sole,” and then transferring them to the “Anglican Diocese Holding

Corporation,” which he had formed to perform the same function as the corporation

sole and to protect the property from the provisional bishop elected by the minority

of parishes and members who had not seceded from TEC. Id. at 58. In its lawsuit,

TEC and its affiliated diocese sought to reclaim possession of property, among

other things. Id. California’s intermediate appellate court concluded that the

dispute regarding the identity of the incumbent “Episcopal Bishop of the Diocese

of San Joaquin” was “quintessentially ecclesiastical,” as was the continuity of the

diocese as an entity within TEC. Id. at 58–59. On remand, it instructed the trial

court to apply neutral principles of law to resolve the property disputes on the

remaining causes of action. Id. at 59.

At trial, the parties stipulated that all of the dates of Schofield’s transfer of

the property had occurred after he had been removed as TEC’s bishop. Id.

Accordingly, the trial court concluded that the property transfers were void either

because the property was held in trust for TEC or because Schofield lacked the

authority to make the transfers. Id. at 59–60.

On appeal, the court noted that deciding whether a diocese can leave TEC

does not resolve the property dispute; rather, sources such as deeds, bylaws,

articles of incorporation, and relevant statutes must be considered under the

neutral principles analysis. Id. at 63–64. The court also observed that the trial

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court erred in its trust finding because the Dennis Canon imposed by its terms an

express trust in favor of TEC on property held by a parish, not by a diocese. Id. at

64. It refused to imply a trust on church property because that

almost inevitably puts the civil courts squarely in the midst of
ecclesiastical controversies, in that every dispute over church doctrine
that produces strongly held majority and minority views forces the
court to determine the true implied beneficiaries of the church entities
involved. The court would be required to determine which faction
continued to adhere to the “true” faith. This is something a civil court
is not permitted to do. “If the civil courts cannot properly determine
which competing group is the bearer of the true faith, they cannot
determine for whose benefit title to church property is impliedly held
in trust.”

Id. (quoting Barker, 171 Cal. Rptr. at 551).

The court looked at how title to the property was held and the structure of

the corporation sole when Schofield attempted to make the transfers. Id. The

validity of the 2007 amendments to the diocesan constitution and canons were not

determinative because the corporation sole, not the diocese, held title to the

property. Id. Because TEC had ordered Schofield to continue administering the

diocese’s temporal affairs in the January 11, 2008 order, he remained the chief

officer of the corporation sole until he was deposed on March 12, 2008. Id. at 65.

However, his attempted amendment was not authorized at the 2007 diocesan

convention as required to be valid under California law. Id. at 65. And the diocesan

convention did not attempt to ratify the action of the diocesan council in trying to

amend the canon requiring title of the corporation sole to be “The Protestant

94
Episcopal Bishop of San Joaquin” until October 2008. Id. at 65–66. Thus, under

the terms of the diocese’s canons, the amendment was invalid. Id. at 66.

Consequently, Schofield’s January 22, 2008 attempt to amend the articles

of incorporation was invalid and of no effect. Id. And because that amendment

was invalid, his attempt to transfer property from the corporation sole known as

“The Protestant Episcopal Bishop of San Joaquin” to “The Anglican Bishop of San

Joaquin, a Corporation Sole” also failed, because no such entity existed when he

executed and recorded those deeds between March and August 2008. Id.

Likewise, Schofield’s attempt to transfer the disputed property from “The Anglican

Bishop of San Joaquin, a Corporation Sole” to “The Anglican Diocese Holding

Corporation” also failed, and title therefore remained with the Protestant Episcopal

Bishop of San Joaquin. Id. at 66–67. The court affirmed the judgment returning

the property to TEC and the TEC-affiliated diocese. Id. at 67.

(b) Diocese of Quincy

The Diocese of Quincy voted to end its association with TEC and entered

into membership with the Anglican Church of the Southern Cone in November

2008. Diocese of Quincy, 2014 IL App (4th) 130901, ¶¶ 1, 9, 14 N.E.3d at 1249–

50. The dissenters formed the “Diocese of Quincy of the Episcopal Church,” and

they and TEC (collectively, the TEC dissenters) informed the bank holding

approximately $3 million in church assets that a dispute had arisen over the funds’

ownership. Id. ¶ 1, 14 N.E.3d at 1249. After the bank froze the assets, all parties

sought a declaratory judgment on the assets’ ownership. Id. ¶ 2, 14 N.E.3d at

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1249. After a three-week bench trial, the trial court, applying neutral principles of

law, found against the TEC dissenters and issued twenty-one pages of findings

with its order. Id. ¶¶ 2, 19, 27, 14 N.E.3d at 1249, 1252–53.

In affirming the trial court’s judgment, the court recounted that in 1893, the

diocese had formed a state nonprofit corporation called “The Trustees of Funds

and Property of the Diocese of Quincy” (hereafter, Corporation #1) to hold,

manage, and distribute the diocese’s funds. Id. ¶ 6, 14 N.E.3d at 1249–50. TEC

was not a party to the 1999 contract between the bank and Corporation #1. Id.

¶ 7, 14 N.E.3d at 1250. Then in 2005, the diocese incorporated as a state nonprofit

corporation called the Diocese of Quincy (hereafter, Corporation #2). Id. ¶ 8, 14

N.E.3d at 1250. Corporation #2’s directors were members of the diocese, and in

March 2009, Corporation #2 filed its annual corporate report with the state, listing

its directors. Id. ¶¶ 8, 10, 14 N.E.3d at 1250. In April 2009, TEC declared void the

diocese’s November 2008 decision to disaffiliate and elected a new bishop and

other new leaders for the diocese. Id. ¶ 12, 14 N.E.3d at 1250. That same month,

Corporation #1 filed its annual report with the state, listed its directors, and

amended its bylaws to remove references to TEC. Id. ¶ 11, 14 N.E.3d at 1250.

Corporation #1’s amended bylaws provided that directors did not have to be Illinois

residents but “shall be communicants in good standing with their parish or mission

church within the Diocese of Quincy.” Id., 14 N.E.3d at 1250. TEC asked the court

to hold that the individuals listed as directors of Corporations #1 and #2 had

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vacated their offices by leaving TEC and to declare the new persons that had been

elected as the corporations’ directors. Id. ¶ 17, 14 N.E.3d at 1251.

The court observed that Illinois had adopted the neutral principles approach,

“whereby a court may objectively examine pertinent church characteristics,

constitutions and bylaws, deeds, state statutes, and other evidence to resolve the

matter as it would a secular dispute.” Id. ¶ 44, 14 N.E.3d at 1256. The court further

noted that deference is unavailable when the determination of a church’s

hierarchical structure is not easily discernible. Id. ¶ 47, 14 N.E.3d at 1256. It

pointed out that the trial court—after hearing conflicting evidence—had concluded

that it could not “constitutionally determine the highest judicatory authority or the

locus of control regarding the property dispute to which it would be required to

defer,” because the diocese’s status as a subordinate in a hierarchy was “not clear

or readily apparent,” rendering deference unavailable. Id. ¶¶ 20–22, 27, 47, 14

N.E.3d at 1252–53, 1256; cf. Masterson, 422 S.W.3d at 608 (“We agree with the

court of appeals that the record conclusively shows TEC is a hierarchical

organization.”).

Because the central matter underlying the parties’ dispute was “who owns

the disputed property,” the court did not have to determine whether the diocese

could leave TEC or identify the leaders of the continuing diocese. Diocese of

Quincy, 2014 IL App (4th) 130901, ¶ 48, 14 N.E.3d at 1257. For the property at

issue—funds in the bank account and the deed to the “Diocesan House”—the deed

reflected that title to the property was held by Corporation #1, and its language did

97
not provide for an express trust in favor of TEC; TEC was likewise not a party to

the contract between Corporation #1 and the bank, and it was undisputed that TEC

had never had any involvement with the bank account. Id. ¶ 50, 14 N.E.3d at 1257.

The corporations were not organized under Illinois’s Religious Corporation Act,

which would have imposed certain requirements on the incorporating body with

regard to trustee membership. Id. ¶ 51, 14 N.E.3d at 1257. And the evidence—

including the deed, the bank contract, and the diocese’s constitution and canons—

revealed nothing to show an express or implied trust or any other interest vested

in TEC. Id. ¶ 54, 14 N.E.3d at 1258. The Dennis Canon provided that parish

property was held in trust for the diocese and TEC but included no “similar

language with respect to diocesan property being held in favor of” TEC. Id.,

14 N.E.3d at 1258. Accordingly, the court affirmed the trial court’s judgment. 70 Id.

¶ 57, 14 N.E.3d at 1259.

70
In Diocese of San Joaquin, the court distinguished Diocese of Quincy,
observing that the Quincy diocese (Corporation #2) was incorporated as a
nonprofit corporation under Illinois law and the property was held, managed, and
distributed by another nonprofit corporation (Corporation #1), the directors of
whom were members of Corporation #2. 202 Cal. Rptr. 3d at 60–61. In contrast,
in the San Joaquin Diocese, the property was held in the name of the corporation
sole with the incumbent bishop as the single officeholder. Id. at 61. The San
Joaquin court noted that because the Quincy diocese was organized under the
Illinois Not-For-Profit Corporation Act instead of the Illinois Religious Corporation
Act, TEC had no authority to remove and replace the incorporated diocese’s
directors, whereas TEC had more influence and control over the California
corporation sole because any amendments to its articles of incorporation had to
be “authorized by the religious organization.” Id. (observing that under the Illinois
Religious Corporation Act “a trustee of a religious corporation can be removed from
office for, inter alia, abandonment of the denomination”); see 805 Ill. Comp. Stat.
Ann. 110/46d (West, Westlaw through 2018 Legis. Sess.) (providing that the

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 (c) Diocese of South Carolina

During the pendency of this appeal, the Supreme Court of South Carolina

issued an opinion—or rather, five opinions, as each justice wrote separately—

touching on some of the issues before us. See Protestant Episcopal Church in the

Diocese of S.C. v. The Episcopal Church, 806 S.E.2d 82, 84, 93 (S.C. 2017), pet.

for cert. filed, No. 17-1136 (Feb. 9, 2018). As recounted by one of the justices, a

majority of three agreed that in secular church disputes, neutral principles of law

should be applied to resolve the case, while a different majority of three held that,

with regard to the twenty-eight church organizations that acceded to the Dennis

Canon, a trust in favor of TEC is imposed on the property, putting title in the

national church. Id. at 125 n.72 (Toal, Acting J., dissenting).

(5) Commentary

Unsurprisingly, cases involving church property have attracted a number of

scholarly articles weighing in on various aspects of the tension between the First

Amendment and state secular law. See McConnell & Goodrich, 58 Ariz. L. Rev.

at 321–22 (observing the common pattern of church property disputes and the

arguments made by each side); Valerie J. Munson, Fraud on the Faithful? The

trustee of a corporation organized under the Illinois Religious Corporation Act “may
be removed from office whenever his office shall be declared vacant . . . for an
abandonment of the faith of the congregation, church, society, sect, or
denomination, or for failure to observe the usages, customs, rules, regulations,
articles of association, constitution, by-laws or canons of the congregation, church
or society, or of the ecclesiastical body, or diocesan, or like ecclesiastical officer,
having jurisdiction over any ecclesiastical district or diocese).

99
Charitable Intentions of Members of Religious Congregations & the Peculiar Body

of Law Governing Religious Property in the United States, 44 Rutgers L.J. 471,

509 (2014) (observing that history suggests that religion-based property disputes

will always be around and that “the only constant in that body of law has been its

utter inconsistency and uncertainty”); Bertie D. Jones, Litigating the Schism &

Reforming the Canons: Orthodoxy, Property & the Modern Social Gospel of the

Episcopal Church, 42 Golden Gate U. L. Rev. 151, 215 (2012) (asserting that the

property disputes within TEC are about theology and proposing that ecclesiastical

property courts would be more efficient to determine the Dennis Canon trust

question); R. Gregory Hyden, Comment, Welcome to the Episcopal Church, Now

Please Leave: An Analysis of the Supreme Court’s Approved Methods of Settling

Church Property Disputes in the Context of the Episcopal Church & How Courts

Erroneously Ignore the Role of the Anglican Communion, 44 Willamette L. Rev.

541, 560 (2008) (“By ignoring the judicatory procedures outside of the national

polity of the Episcopal Church, courts are not following the principles they set out

for a hierarchical church in either a deference approach or a neutral principles

approach.”); Jeffrey B. Hassler, Comment, A Multitude of Sins? Constitutional

Standards for Legal Resolution of Church Property Disputes in A Time of

Escalating Intradenominational Strife, 35 Pepp. L. Rev. 399, 455 (2008)

(“Churches have not ordered their affairs in ways that lend themselves to easy civil

court resolution.”); Fennelly, 9 St. Thomas L. Rev. at 357 (“The unintended

consequence of neutral principles has been . . . an unwarranted intrusion into a

100
sphere that lies outside government’s legitimate boundaries of authority.”); Patty

Gerstenblith, Civil Court Resolution of Property Disputes Among Religious

Organizations, 39 Am. U. L. Rev. 513, 519–20 (1990) (observing that Supreme

Court jurisprudence that grants greater deference in property disputes to

hierarchical religious organizations than to congregational religious organizations

“would seem to create a structural relationship violative of the establishment

clause”). These commentaries have provided valuable guidance to us.

(6) Summary

Under the neutral principles methodology, we are required to apply neutral

principles of law to issues such as land titles, trusts, and corporate formation,

governance, and dissolution, even when religious entities are involved, Masterson,

422 S.W.3d at 606, and “what happens to the property is not [an ecclesiastical

matter], unless the congregation’s affairs have been ordered so that ecclesiastical

decisions effectively determine the property issue.” Id. at 607. That is, as set out

above, per Jones and Milivojevich, we must perform a non-religious-doctrine-

related review of the plain language of the deeds and the provisions dealing with

ownership and control of property contained within the local and general churches’

governing documents, confining ourselves to formal title, corporate documents,

and other items used in the secular world to determine ownership issues, while

avoiding questions about the tenets of faith, including any religious test as to the

parties’ leadership or identity. If a case requires the court only to interpret a

contract or deed but not to intervene in matters of church discipline, internal

101
administration, or membership—or matters of morality or church doctrine—then it

should be a simple matter to resolve a basic civil law controversy that just happens

to involve a church. See Episcopal Diocese, 422 S.W.3d at 650 (stating that under

neutral principles, courts “defer to religious entities’ decisions on ecclesiastical and

church polity issues such as who may be members of the entities and whether to

remove a bishop” while deciding issues like property ownership and the existence

of a trust “on the same neutral principles of secular law that apply to other entities”).

But whether the application of the neutral principles approach is unconstitutional

depends on how it is applied. Id. at 651; see also Westbrook, 231 S.W.3d at 400,

403. Milivojevich, Kedroff, and Hosanna-Tabor warn us, at all costs, to avoid

becoming unconstitutionally entangled in the parties’ theological, hierarchical web

of who is or can be the “real” bishop or diocese for religious purposes. We have

translated these and other strictures into a flow chart.

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 What do the deeds and other
relevant documents—
including church
constitutions and bylaws—
say about where title is vested
and whether it is held in
trust?

If title is held for local entity,
is there a question about who Apply Neutral
is the local entity? Principles.

Yes No
Title belongs to local
congregation.

Hierarchical
Church?

No
Yes
Apply Congregational
Analysis (majority rule).

Has highest church authority Unripe
No
decided issue?

Yes

Defer to
Is there a claim of highest church
fraud or collusion for No
authority’s
secular purposes (or decision.
a threat to public
health and safety)?

103
See Young & Tigges, 47 Ohio St. L.J. at 498–99 (“[I]ndeed it is the presence of

such a doctrinal issue which turns a case concerning church discipline,

organization, or government into an ecclesiastical one calling for deference. Once

a doctrinal question is present in a case, it cannot be avoided through neutral

principles or any other approach.” (footnote omitted)); see also Hyden, 44

Willamette L. Rev. at 569–70 (recommending that courts should ensure that

churches wishing to disaffiliate have first exhausted all remedies available to them

within the structure of the national and international church and, if so, then give the

deference courts traditionally give to administrative agency decisions). Compare

Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16, 50 S. Ct. 5, 7–

8 (1929) (observing that in the absence of fraud or collusion, “the decisions of the

proper church tribunals on matters purely ecclesiastical, although affecting civil

rights, are accepted in litigation before the secular courts as conclusive, because

the parties in interest made them so by contract or otherwise”), and Singh v.

Sandhar, 495 S.W.3d 482, 490 (Tex. App.—Houston [14th Dist.] 2016, no pet.)

(“While the Supreme Court left open the possibility that fraud or collusion claims

may serve as vehicles for civil court review of ecclesiastical decisions, we have

found no Texas case that has applied such an exception.”), with Libhart, 949

S.W.2d at 794 (citing a Washington case for the proposition that when church

proceedings are tainted by fraud, judicial review is appropriate). 71

71
In considering whether a former pastor fraudulently misrepresented
material facts in selling church facilities, the Libhart court quoted the Supreme

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 b. State Substantive Law

Within the neutral principles framework, we must consider our state’s

associations, corporations, and trust law as applicable to the case.

(1) Associations Law

EDFW is a Texas nonprofit association governed by chapter 252 of the

business organizations code. See Tex. Bus. Orgs. Code Ann. §§ 1.103, 252.001

(West 2012). These days, a nonprofit association may be the beneficiary of a trust,

contract, or will. See id. § 252.015 (noting that until September 1, 1995, a nonprofit

association could not hold an estate or interest in real or personal property, so the

interest was held in trust by a fiduciary, but after September 1, 1995, the fiduciary

could transfer the interest to the nonprofit association in the nonprofit’s name). The

nonprofit association is separate from its members for purposes of determining

and enforcing its rights, duties, and liabilities in contract and tort. Id. § 1.002(57)–

(58) (West Supp. 2017), §§ 3.002, 252.006(a) (West 2012). Under chapter 252, a

“member” is a person who, under the association’s rules or practices, may

participate in the selection of persons authorized to manage association affairs or

in the development of association policy. Id. § 252.001(1). “A member of, or a

Court of Washington as prohibiting the use of “chicanery, deceit, and fraud” to
divert church property “to a purpose entirely foreign to the purposes of the
organization[] for . . . selfish benefit.” 949 S.W.2d at 794 (quoting Hendryx v.
People’s United Church of Spokane, 84 P. 1123, 1127 (Wash. 1906)). The parties
in the instant case have not specified any fraud claims.

105
person considered as a member by, a nonprofit association may assert a claim

against the nonprofit association,” and vice versa. Id. § 252.006(d).

“It is generally held that the constitution and by-laws of a voluntary

association, whether incorporated or not, are controlling as to its internal

management.” Dist. Grand Lodge No. 25 Grand United Order of Odd Fellows v.

Jones, 160 S.W.2d 915, 922 (Tex. 1942); Juarez v. Tex. Ass’n of Sporting Officials

El Paso Chapter, 172 S.W.3d 274, 279 (Tex. App.—El Paso 2005, no pet.) (“[T]he

courts of this state recognize the right of a private association to govern its own

affairs.”). Texas courts have recognized that an association’s bylaws constitute a

contract between the parties. Monasco v. Gilmer Boating & Fishing Club, 339

S.W.3d 828, 838 n.14 (Tex. App.—Texarkana 2011, no pet.). But see Westbrook,

231 S.W.3d at 398 (quoting Minton, 297 S.W.2d at 621–22, for the proposition that

church membership creates a different relationship from that of other voluntary

associations); Harden v. Colonial Country Club, 634 S.W.2d 56, 60 (Tex. App.—

Fort Worth 1982, writ ref’d n.r.e.) (stating that a suit on bylaws and policies is not

the type of breach-of-contract suit contemplated by the legislature with regard to

the recovery of attorney’s fees). The constitution and bylaws of an association

confer no legal rights on nonmembers. Schooler v. Tarrant Cty. Med. Soc’y, 457

S.W.2d 644, 647 (Tex. Civ. App.—Fort Worth 1970, no writ).

By becoming a member of an association, an individual “subjects himself,

within legal limits, to the association’s power to administer as well as its power to

make its rules.” Harden, 634 S.W.2d at 59. The actions of the association’s

106
leadership are permissible and binding on the association’s membership so long

as they are not illegal, against some public policy, or fraudulent. Id. at 60 (refusing

judicial intervention in association’s internal dispute over rules pertaining to sale of

country club membership); see also Whitmire v. Nat’l Cutting Horse Ass’n, No. 02-

08-00176-CV, 2009 WL 2196126, at *4 (Tex. App.—Fort Worth July 23, 2009, pet.

denied) (mem. op.) (“Judicial review is only proper when the actions of the

organization are illegal, against some public policy, arbitrary, or capricious.”). But

see Milivojevich, 426 U.S. at 713, 96 S. Ct. at 2382 (disavowing an exception for

arbitrariness as to religious associations). Legislative enactment dictates what is

public policy in this state. See Dist. Grand Lodge No. 25, 160 S.W.2d at 920; see

also Dickey v. Club Corp. of Am., 12 S.W.3d 172, 177 (Tex. App.—Dallas 2000,

pet. denied) (holding that membership in a golf club is not a valuable property right,

particularly when plaintiffs did not allege gender inequity or discrimination and

there was no claim of fraud or illegality, and that “[i]f the courts were to intervene

each time members of a golf club felt that restrictions on tee times were

unreasonable, operation of such clubs would become unmanageable and valuable

judicial resources would be wasted”). Complaints that attract judicial review are

those that “allege a wholesale deprivation of due process or the opportunity to be

heard in violation of some civil or property right.” Whitmire, 2009 WL 2196126, at

*5; see Stevens v. Anatolian Shepherd Dog Club of Am., Inc., 231 S.W.3d 71, 74–

75 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (reciting that despite the

general rule of noninterference with a voluntary association’s internal

107
management, courts will interfere in a private association’s inner-dealings if a

valuable right or property interest is at stake or if association fails to accord

members “something similar to due process”).

The TEC parties assert that Appellees lost EDFW’s property when they

disassociated from TEC, and they refer us to several cases to support their

position. See Int’l Printing Pressman v. Smith, 198 S.W.2d 729, 736 (Tex. 1946); 72

Dist. Grand Lodge No. 25, 160 S.W.2d at 920; 73 see also Progressive Union of

72
In International Printing, Smith sued the parent union for his wrongful
expulsion from the local union, a chartered subordinate organization, after it failed
to follow the parent union’s rules in expelling him. 198 S.W.2d at 731–32. After a
jury trial, the trial court issued a JNOV for the union, but the supreme court
rendered judgment for Smith. Id. at 731, 738. The court held that Smith’s
expulsion was illegal and void—the result of “a breach of the fundamental
guarantees established by the union for the protection of the rights of the individual
member,” id. at 732, and while the parent union contended that it was not
responsible for its subordinate unit’s actions, the local union had acted as its agent
and was “but the alter ego of the national organization” when it breached the
contract—constitution and bylaws—between the organization and its members.
Id. at 733–34, 736, 742–43. That is, while the local union could elect its own
officers and adopt its own constitution and bylaws, the parent union’s constitution
and bylaws took precedence, regulating in detail how the local union could operate
and its officers’ performance of their duties. Id. at 733. The parent union could
also forfeit the local union’s charters, take over the administration of its affairs, and
remove and expel its officers for a failure to perform their duties. Id. And while the
parent union’s constitution and bylaws did not contain any express promise to
allow union members to remain members and enjoy the benefits thereof, the court
held that there was an implied obligation to allow a member to enjoy the benefits
of his membership “so long as he complies with the obligations imposed by the
constitution and by-laws.” Id. at 737–38.
73
In Grand Lodge, the supreme court considered whether the property held
by a defunct local fraternal lodge would go to its members or to the grand lodge of
which the local lodge had been a constituent member. 160 S.W.2d at 920. Grand
Lodge, a fraternal benefit society organized in 1890, sued members of the defunct
local lodge in a trespass-to-try-title action involving three lots. Id. at 917–18. The

108
local lodge had been one of Grand Lodge’s subordinate lodges when it acquired
the lots but became “defunct” in 1936, paying no membership dues or
assessments to either Grand Lodge or the national organization. Id. at 918. The
lots, acquired between 1909 and 1920, were paid for by the local lodge’s members,
and none of Grand Lodge’s or the national organization’s funds were used directly
or indirectly in purchasing the lots or making improvements upon them. Id. The
deeds were executed to named members of the local lodge “as trustees of said
Local Lodge and to their successors in trust for said lodge.” Id. In 1936, the self-
described duly elected and qualified trustees of the local lodge executed general
warranty deeds conveying the lots to thirty-four individuals (including themselves)
as “all of the present qualified and paid up members” of the lodge, which “is
contemplated to be dissolved.” Id.

The court construed Grand Lodge’s constitution and bylaws, which had been
in effect since 1908 and which provided that title to all property acquired by
subordinate lodges was as trustee for and for the benefit of Grand Lodge, that no
property held by a subordinate lodge could be mortgaged, sold, or otherwise
encumbered without written permission and consent from Grand Lodge, and that
when a subordinate lodge became defunct, all of the property held in trust by the
local lodge “shall be taken over . . . and re-possessed by the District Grand Lodge”
and “shall vest absolutely in the District Grand Lodge.” Id. at 918–19. The court
then looked to the statutory provisions relating to incorporated lodges—even
though Grand Lodge was not incorporated—to determine whether Grand Lodge’s
constitution and bylaws were contrary to the public policy stated therein and
observed that the statutory language “is clear and unequivocal and plainly states
what is to become of the property of a defunct local lodge”—i.e., it passes to and
vests in the grand body to which it was attached. Id. at 920–21 (referring to the
statute “merely as a legislative statement of the [underlying] public policy”).
Accordingly, the court held that the applicable provisions in Grand Lodge’s
constitution and bylaws were not contrary to public policy, making Grand Lodge
the lots’ owner because its constitution and bylaws “became a part of the contract
entered into by the defendants when they became members of the order and
whatever rights defendants had in the lots in controversy were merely incidental to
their membership and terminated absolutely with such membership.” Id. at 920.
While the local lodge had held superior equitable title based on the deeds’
language, when it became defunct, it lost its interest in the lots. Id. at 920, 923; cf.
Simpson v. Charity Benevolent Ass’n, 160 S.W.2d 109, 109–10, 112–13 (Tex. Civ.
App.—Fort Worth 1942, writ ref’d w.o.m.) (holding claimants did not show title
vested in them when local lodge purchased property three years before adoption
of bylaws upon which claimants relied and entity under which claimants claimed
title was not local lodge’s parent organization).

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Tex. v. Indep. Union of Colored Laborers, 264 S.W.2d 765, 768 (Tex. Civ. App.—

Galveston 1954, writ ref’d n.r.e.); 74 see generally Tex. Bus. Orgs. Code Ann.

§ 23.110(a) (West 2012) (providing that when a subordinate body attached to a

grand body is wound up and terminated, “all property and rights existing in the

subordinate body pass to and vest in the grand body to which it was attached,

subject to the payment of any debt owed by the subordinate body”).

74
In Progressive, the court observed that it “is well settled that when a person
ceases to be a member of a voluntary association, his interest in its funds and
property ceases and the remaining members become jointly entitled thereto,” even
when the majority secedes and organizes a new association. 264 S.W.2d at 768.
In that context, 17 individual incorporators obtained a charter for a union in 1930
and became the union’s supreme council, which supplied a franchise to Lodge
No. 1, an unincorporated association. Id. at 766. The franchise authorized the
organization of Lodge No. 1 and gave it a constitution, bylaws, and a password.
Id. Lodge No. 1 collected dues and assessments from its members and regularly
paid dues to the supreme council. Id. Lodge No. 1 subsequently acquired some
property and purported to adopt a constitution and bylaws authorizing its officers
to execute legal documents in connection therewith. Id. at 766–67. By 1951,
Lodge No. 1 had over 1,000 members, had paid off the indebtedness on its land,
and had around $8,500. Id. at 767. As resentment towards the supreme council
festered, some of the officers of Lodge No. 1 became incorporators of the
Progressive Union of Texas, to which the State of Texas issued a charter. Id.
Those incorporators/officers executed a deed conveying Lodge No. 1’s property to
Progressive and withdrew Lodge No. 1’s funds but continued to make reports to
the supreme council as Lodge No. 1 for two or three months. Id. The majority of
Lodge No. 1’s members ultimately affiliated with Progressive, while 60 or 70
members of Lodge No. 1 continued to hold meetings separately. Id. Litigation
ensued, and the remaining members of Lodge No. 1 prevailed in a jury trial. Id.
Progressive appealed, complaining that the trial court’s judgment affected the
rights of 900 persons, representing 96% of Lodge No. 1’s former membership, but
to no avail. Id. at 768. The court likewise observed that the evidence was sufficient
to support the jury’s finding that the incorporator/officers had withdrawn as
members from Lodge No. 1 before executing the deed, leaving them without the
power to convey Lodge No. 1’s property. Id.

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 The business organizations code has a separate chapter for “special-

purpose” corporations. See Tex. Bus. Orgs. Code Ann. §§ 23.001–.110 (West

2012). This category applies to business development corporations, which are

formed “to promote, develop, and advance the prosperity and economic welfare of

this state,” id. § 23.052, and to “Grand Lodges,” such as the Free Masons, Knights

Templar, Odd Fellows, or “similar institution or order organized for charitable or

benevolent purposes.” 75 Id. § 23.101; see also CKB & Assocs., Inc. v. Moore

McCormack Petroleum, Inc., 734 S.W.2d 653, 655 (Tex. 1987) (explaining the

maxim expressio unius est exclusio alterius to mean “that the naming of one thing

excludes another”); Johnson v. Second Injury Fund, 688 S.W.2d 107, 108–09

(Tex. 1985) (“The legal maxim Expressio unius est exclusio alterius is an accepted

rule of statutory construction in this state” through which the express mention or

75
In addition to the implied exclusion of other types of associations based on
the list in the “special-purpose” statute, grand lodges can be fraternal benefit
societies, subject to additional rules applicable to their unique character. See Tex.
Ins. Code Ann. § 885.051 (West 2009) (defining “fraternal benefit society” in part
as a corporation, society, order, or voluntary association that has a lodge system
and representative form of government, with or without limiting its membership to
a secret fraternity); Wonderful Workers of the World v. Winn, 31 S.W.2d 879, 881
(Tex. Civ. App.—Waco 1930, writ dism’d w.o.j.) (“The charter, constitution, by-
laws, and rules of appellant offered in evidence show that it consists of a grand
lodge with subordinate lodges, and is a fraternal benefit society as contemplated
by articles 4820, 4821, 4822, 4823, 4824, and 4834 of the Revised Statutes.”); see
also State v. The Praetorians, 186 S.W.2d 973, 975–76 (Tex. 1945) (observing
that respondent, a fraternal benefit association operating under a lodge system of
government, was the type of association “dealt with in a separate chapter of the
statutes . . . and . . . regulated by laws applicable to them alone,” and “regarded
by the Legislature as being different from ordinary insurance companies and all
other organizations”).

111
enumeration “of one person, thing, consequence or class is equivalent to an

express exclusion of all others”). While the facial simplicity of comparing grand

lodges to the types of associations here is alluring, we cannot conclude that the

statutory principles applicable to grand lodges apply to entities that lack grand

lodges’ defining characteristics. 76

Furthermore, labor unions and lodges—and the policies and law applicable

to them—have more in common with each other than with hierarchical religious

associations. Compare Westbrook, 231 S.W.3d at 398 (identifying distinction

between church membership and that of other voluntary associations formed for

business, social, literary, or charitable purposes), with Comment, State Court

Holds Union Must Reinstate & Compensate Members Wrongfully Expelled for

Intra-Union Political Activity: Madden v. Atkins, 59 Colum. L. Rev. 190, 190 (1959)

(“Labor unions were early characterized as unincorporated associations not for

profit and thus were governed by legal principles which had been formulated for

76
For example, under section 23.104, “Subordinate Lodges,” “[a]
subordinate body is subject to the jurisdiction and control of its respective grand
body, and the warrant or charter of the subordinate body may be revoked by the
grand body.” Tex. Bus. Orgs. Code Ann. § 23.104(c). But TEC’s constitution and
canons do not provide for the complete disassociation—voluntary or involuntary—
of a diocese by somehow revoking its membership in the hierarchical church.
Indeed, part of the problem in this case is that there was no established framework
for disaffiliation. See Hassler, 35 Pepp. L. Rev. at 455 (observing “an integral part
of the nature of the belief systems of religious communities is the hope that their
shared beliefs will make their temporal unity lasting and secure”).

112
social and benevolent organizations.” (footnotes omitted)). As one commentator

has noted,

The explicitly stated purpose of limiting the local union’s retention of
its property is to strengthen the national labor organization and
increase its bargaining power. In the context of church property
disputes, the goal of favoring and strengthening the religious
hierarchy is not legitimate because it would clearly violate the
establishment clause of the [F]irst [A]mendment.

Gerstenblith, 39 Am. U.L. Rev. at 570–71 (footnote omitted) (referencing Int’l Bhd.

of Boilermakers v. Local Lodge D474, 673 F. Supp. 199, 203 (W.D. Tex. 1987)

(“Other courts have held that disaffiliation does justify a trusteeship since

disaffiliation would have a detrimental effect on the collective bargaining

process.”)).

Accordingly, the law applicable to lodges, unions, or other special-purpose

corporations does not apply to the case before us, and we overrule this portion of

the TEC parties’ issue 1(c). We will address the remainder of their associations

sub-issue in our analysis below.

(2) Corporations Law

The Corporation, formed under Texas law, came into existence when its

certificate of formation was filed. See Tex. Bus. Orgs. Code Ann. § 1.002(22)

(explaining that one of the “filing” entities is a domestic entity that is a corporation),

§ 1.101 (West 2012) (stating that Texas law governs the formation and internal

affairs of an entity if the entity files a certificate of formation in accordance with the

provisions of the business organizations code), § 3.001(c) (West 2012)

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(“Formation and Existence of Filing Entities”). A nonprofit corporation must include

in its certificate of formation whether it will have members and the number of

directors constituting the initial board of directors and their names and addresses,

among other things. Id. § 3.009(1)–(3). In a religious nonprofit corporation, as

here, the board of directors may be affiliated with, elected, and controlled by “an

incorporated or unincorporated convention, conference, or association organized

under the laws of this or another state, the membership of which is composed of

representatives, delegates, or messengers from a church or other religious

association.” Id. § 22.207(a). 77 The board of directors of such a corporation may

be wholly or partly elected by one or more associations organized under state law

if the corporation’s certificate of formation or bylaws provide for that election and

the corporation has no members with voting rights. Id. § 22.207(b).

A nonprofit corporation’s board of directors is “the group of persons vested

with the management of the affairs of the corporation, regardless of the name used

to designate the group,” and its bylaws are the rules adopted to regulate or manage

the corporation. Id. § 22.001(1), (2) (West Supp. 2017). Unless a director of a

nonprofit corporation resigns 78 or is removed, he or she holds office for the period

77
Revised civil statute article 1396, section 2.14(B) contained the same
provisions. See Act of Apr. 23, 1959, 56th Leg., R.S., ch. 162, art. 2.14, 1959 Tex.
Gen. Laws 286, 294.
78
Except as provided by the certificate of formation or bylaws, a director of a
corporation may resign at any time by providing written notice to the corporation.
Tex. Bus. Orgs. Code Ann. § 22.2111 (West 2012).

114
specified in the certification of formation or bylaws and until a successor is elected,

appointed, or designated and qualified. Id. § 22.208(a)–(b) (West 2012). A

director may be removed from office under any procedure provided by the

certificate of formation or bylaws. Id. § 22.211(a) (West 2012). “In the absence of

a provision for removal in the certificate of formation or bylaws, a director may be

removed from office, with or without cause, by the persons entitled to elect,

designate, or appoint the director.” Id. § 22.211(b). If the director was elected to

office, his or her removal requires an affirmative vote equal to the vote necessary

to elect the director. Id. Unless otherwise provided by the certificate of formation

or bylaws, a vacancy in the board of directors shall be filled by the affirmative vote

of the majority of the remaining directors, regardless of whether that majority is

less than a quorum. Id. § 22.212(a) (West 2012).

As to the general standards applicable to the directors of a nonprofit

corporation’s board, a director shall discharge his or her duties “in good faith, with

ordinary care, and in a manner the director reasonably believes to be in the best

interest of the corporation,” and he or she “is not liable to the corporation, a

member, or another person for an action taken or not taken as a director if the

director acted in compliance with” section 22.221. Id. § 22.221(a), (b) (West 2012).

A director is not considered to have the duties of a trustee of a trust with respect

to the corporation or with respect to property held or administered by the

115
corporation, including property subject to restrictions imposed by the donor or

transferor of the property. 79 Id. § 22.223 (West 2012).

In construing bylaws, we apply the rules that govern contract interpretation.

In re Aguilar, 344 S.W.3d 41, 49 (Tex. App.—El Paso 2011, orig. proceeding). We

also apply the general rules of contract construction, as expressed in Texas case

law, to interpret a Texas corporation’s articles of incorporation. Corcoran v.

Atascocita Cmty. Improvement Ass’n, No. 14-12-00982-CV, 2013 WL 5888127, at

*2 (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, pet. denied) (mem. op.) (citing

Highland Crusader Offshore Partners, L.P. v. Andrews & Kurth, L.L.P., 248 S.W.3d

887, 891 (Tex. App.—Dallas 2008, no pet.)). We attempt to harmonize and give

effect to every provision, and we presume that the parties intended to impose

reasonable terms. Aguilar, 334 S.W.3d at 50. We examine the document as a

whole in light of the circumstances present when it was written. Corcoran, 2013

WL 5888127, at *2. If the bylaw or article is written so that it can be given a definite

interpretation, it is not ambiguous and the court will construe it as a matter of law.

See Aguilar, 334 S.W.3d at 50.

Appellees refer us to Chen v. Tseng, No. 01-02-01005-CV, 2004 WL 35989,

at *6 (Tex. App.—Houston [1st Dist.] Jan. 8, 2004, no pet.) (mem. op.), a

corporation case, to support their argument that “[i]t is easy to separate

79
Depending on a nonprofit corporation’s federal tax qualification, the
nonprofit corporation may also serve as the trustee of a trust. Tex. Bus. Orgs.
Code Ann. § 2.106(a) (West 2012).

116
ecclesiastical and property disputes in most cases.” The TEC parties respond that

the First court subsequently held that case irrelevant under the circumstances

presented here, citing Greanias v. Isaiah, No. 01-04-00786-CV, 2006 WL

1550009, at *9 (Tex. App.—Houston [1st Dist.] June 8, 2006, no pet.) (mem. op.).

In Chen, the First court, citing our opinion in Dean, 994 S.W.2d at 395,

noted—as set out above—that civil courts have jurisdiction over matters involving

churches and their civil, contract, and property rights as long as neutral principles

of law may be applied to decide the issues. 2004 WL 35989, at *6. The

membership of a religious group had formed a corporation to build a temple; the

corporation’s bylaws set out the requirements for an annual meeting of the

membership to elect directors, the length of their terms, how vacancies would be

filled, and the date of the annual meeting. Id. at *1. In conducting corporate affairs,

the directors frequently consulted with the religion’s patriarch and generally

followed his instructions. Id. at *2. After he died, a dispute arose with regard to

the composition of the corporation’s board. Id. at *2–3.

Chen, who had served as the patriarch’s assistant and who subsequently

attempted to reorganize the corporation outside the parameters of the

corporation’s bylaws, conceded that the trial court applied neutral principles of law

in interpreting and applying the bylaws. Id. at *2, *6. After a four-day bench trial,

the trial court “merely applied the bylaws to make a determination of the validity of

the selection of directors of the [c]orporation.” Id. at *3, *6. While the corporation’s

117
board controlled the corporation’s membership, it did not control membership in

the religious group. Id. at *6.

In Greanias, the court considered a plea to the jurisdiction brought in a suit

to determine the rightful board of trustees (parish council) of the Annunciation

Greek Orthodox Cathedral, organized as a Texas nonprofit corporation, after the

hierarch of the regional division of the Greek Orthodox Archdiocese of America

removed some of the trustees (10 of 15 total, elected to three-year, staggered

terms, from 2000–2002) from office. 2006 WL 1550009, at *1. Prior to the trustees’

removal from the board, the Cathedral had adopted its own bylaws rather than the

Archdiocese’s uniform parish regulations. Id.

Internal strife occurred in 2001, with the appointment by the hierarch of a

priest with whom the subsequently removed board members did not get along. Id.

at *2–3 (recounting that the board members had the priest followed by a private

investigator and twice notified the IRS about his personal finances). In 2002, the

hierarch refused to ratify the purported election of new board members because

the priest had refused to sign the election results, as required by the local bylaws.

Id. at *2. The board members also ignored the hierarch’s request that they amend

the local bylaws to conform to the archdiocese’s uniform parish regulations. Id. at

*1. In 2003, the hierarch demanded that board members with uncompleted terms

submit their resignations. Id. at *2. When only three did so, he rescinded his

ratification of the remaining original board members’ elections. Id. at *2–3 (quoting

the hierarch’s statement that “[i]t does not take a rocket scientist to see that there

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is no working cooperation between the spiritual head of the parish and those who

took the oath to assist him in his work”). The hierarch and the local priest organized

an interim council, which elected officers and assumed control of the Cathedral—

actions that ultimately led to a lawsuit seeking a declaratory judgment that the

corporation’s bylaws were the controlling document governing the Cathedral’s

affairs. Id. at *3. The trial court granted the hierarch’s plea to the jurisdiction. Id.

at *4.

On appeal, the board members complained that under the local bylaws, the

hierarch lacked the power to dismiss them and to create an interim council and

that only they—as the original parish council—had the right to serve and act on the

Cathedral’s behalf. Id. The court recited the neutral-principles template before

noting that “if an issue—even one that is claimed to be based solely on neutral

principles of law—cannot be decided without determining prohibited religious

matters, the court must defer to the ecclesiastical authority’s resolution of that

issue.” Id. at *5. Accordingly, the court had to examine the substance and effect

of the plaintiff’s petition, without considering the technical claims asserted, to

determine the suit’s ecclesiastical implications. Id.

The Cathedral’s bylaws set out a corporate purpose that included

maintaining, conducting, and operating “a church in conformity with the doctrine,

canons, worship, discipline, usages and customs of the Greek Orthodox Church,”

and required that candidates for parish council be members of the Cathedral in

good standing for at least a year before the election. Id. at *7. To be in good

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standing, the member was required to, among other things, live “according to the

faith and canons of the [Greek Orthodox] Church.” Id. The bylaws also required

newly elected parish council members to have their election ratified by the hierarch

and to be administered the oath of office by the parish priest. Id. And they required

the parish council to conduct the Cathedral’s secular business “in furtherance of

the aims and purposes of the [Greek Orthodox] Church and in accordance with . . .

the constitution, canons, discipline, and regulations of the Archdiocese,” and to

refer all spiritual questions to the hierarch. Id.

Although the board members argued that the controversy involved a simple

determination of which bylaws applied and the application of the nonprofit

corporation act’s provisions to the corporate organization, the First court observed

that “[t]he controversy inherently and inextricably involves a presiding hierarch’s

power to discipline a local parish council; his power to determine whether that

council’s members have violated their oath to obey the church’s hierarchy,

discipline, and canons; and an archdiocese’s right to insist on what by-laws may

be adopted by its subordinate parishes,” all of which constituted ecclesiastical

matters inextricably intertwined with the board members’ request for a declaration

that the local bylaws controlled. Id. at *7–8. And such inextricable intertwining

prevented the court from resolving the dispute on purely neutral principles. Id. at

*8.

Specifically, in affirming the trial court’s judgment granting the plea to the

jurisdiction, the court observed that there was a question as to whether the local

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bylaws or the uniform parish regulations controlled when the uniform regulations

provided that the mere assignment of a parish priest would bind the parish to the

regulations—“[t]hose matters are at the heart of this dispute, and they are

inextricably intertwined with ecclesiastical issues of church governance, polity, and

doctrine that we may not determine.” Id. The court distinguished Chen in part

based on the lack of a preserved challenge in that case concerning which bylaws

applied and what they required, pointing out that the Chen dispute had only

involved whether various elections and appointments had been lawful under those

bylaws. Id. at *9. The court observed that Chen did not involve a situation “in

which a higher authority, external of the local congregation, was disputing what the

document governing the local congregation was” and that the evidence in Chen

showed that membership in the religious corporation was not co-extensive with

membership in the religion. Id.

Chen and Greanias were both decided before the supreme court fleshed out

the neutral principles analysis in Episcopal Diocese and Masterson but, to some

extent, they represent the range of religious corporation cases, from the most

neutral—was there compliance with the bylaws?—to the most inextricably

intertwined—which bylaws apply and do they involve a religious test or religious

governance? When we review the Corporation’s bylaws in our analysis below, we

will consider these questions to determine where the case before us rests on that

spectrum. See Mouton v. Christian Faith Missionary Baptist Church, 498 S.W.3d

143, 150 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (concluding that Masterson

121
did not alter the principle for which Westbrook stands: courts may apply neutral

principles of law in cases involving religious entities only if doing so does not

implicate inherently ecclesiastical concerns). Whether neutral principles may be

applied to a claim turns on the substance of the issues it raises. Id.

(3) Trust Law

In addition to the questions of association and corporate control, at issue is

whether the property claimed by both parties is held in trust and if so, for whom.

See Perfect Union Lodge No. 10, A.F. & A.M., of San Antonio v. Interfirst Bank of

San Antonio, N.A., 748 S.W.2d 218, 220 (Tex. 1988) (“It is well established that

the legal and equitable estates must be separated; the former being vested in the

trustee and the latter in the beneficiary. This separation of legal and equitable

estates in the trust property is the basic hallmark of the trust entity.” (citations

omitted)); see also Tex. Prop. Code Ann. § 111.004(4) (West 2014) (stating that

an express trust “means a fiduciary relationship with respect to property which

arises as a manifestation by the settlor of an intention to create the relationship

and which subjects the person holding title to the property to equitable duties to

deal with the property for the benefit of another person”). When an express trust

fails, the law implies a resulting trust with the beneficial title vested in the settlor,

122
to prevent unjust enrichment. Pickelner v. Adler, 229 S.W.3d 516, 526–27 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied). 80

(a) Law of Situs

Texas law governs the transfer of Texas land. Welch v. Trs. of Robert A.

Welch Found., 465 S.W.2d 195, 198, 200 (Tex. Civ. App.—Houston [1st Dist.]

1971, writ ref’d n.r.e.) (op. on reh’g) (stating that “[t]he general rule that the law of

the state in which real estate is situated governs its descent, alienation, and

transfer is not questioned,” and that “the law of this state controls and governs the

transmission by will of real estate located therein and the construction and effect

of all instruments intended to convey such real estate”); see Toledo Soc’y for

Crippled Children v. Hickok, 261 S.W.2d 692, 694, 697 (Tex. 1953) (“[T]he law of

the situs governs the matter of testamentary or intestate succession to land.”), cert.

denied, 347 U.S. 936 (1954).

(b) Standard of Review

The construction of a trust instrument is a question of law for the court.

Eckels v. Davis, 111 S.W.3d 687, 694 (Tex. App.—Fort Worth 2003, pet. denied).

80
If fraud is involved, a constructive trust—an equitable remedy implied by
operation of law to prevent unjust enrichment—may be imposed, under the theory
that equitable title should be recognized in someone other than the holder of legal
title. Pickelner, 229 S.W.3d at 527; see also Kinsel v. Lindsey, 526 S.W.3d 411,
426 (Tex. 2017) (noting that the specific instances in which equity may impress a
constructive trust are as numberless as the modes by which property may be
obtained through bad faith and unconscientious acts); KCM Fin. LLC v. Bradshaw,
457 S.W.3d 70, 87 (Tex. 2015) (observing that constructive trusts have historically
been applied to ameliorate harm arising from a wide variety of misfeasance).

123
We look to the law that was in effect at the time that the trust became effective.

See Carpenter v. Carpenter, No. 02-10-00243-CV, 2011 WL 5118802, at *3 (Tex.

App.—Fort Worth Oct. 27, 2011, pet. denied) (mem. op.); see also Act of May 26,

1983, 68th Leg., R.S., ch. 576, § 7, 1983 Tex. Gen. Laws 3475, 3730 (stating that

the 1984 Act was intended only as a recodification and that no substantive change

was intended); Perfect Union Lodge No. 10, 748 S.W.2d at 220 (stating that the

new trust code provides that the Texas Trust Act, which was repealed in 1984, will

govern the creation of trusts entered into while the Act was in effect); Cutrer v.

Cutrer, 345 S.W.2d 513, 519 (Tex. 1961) (“It would be quite strange to ascertain

th[e settlor’s] intention by looking to the provisions of statutes enacted after the

trust instruments became effective or considering changes in public policy as

reflected thereby.”). Accordingly, we review our trust statutes and case law for the

defining characteristics of trusts.

Trust statutes were “framed to supplement rather than to supplant the

desires of a trustor.” St. Marks Episcopal Church, Mt. Pleasant, Tex. v. Lowry, 271

S.W.2d 681, 684 (Tex. Civ. App.—Fort Worth 1954, writ ref’d n.r.e.). Thus, we

look to the words of the instrument first, seeking to uphold rather than destroy a

trust, and then turn to statutory provisions to fill in any gaps. See id. at 684–85

(construing will to determine deceased’s intent with regard to trust income); see

also Runyan v. Mullins, 864 S.W.2d 785, 789 (Tex. App.—Fort Worth 1993, writ

denied) (“[W]hen the terms of a trust set out a specific method or manner in which

to amend the trust, the Texas Trust Code indicates that those terms are controlling

124
and must be followed.”); Commercial Nat’l Bank in Nacogdoches v. Hayter, 473

S.W.2d 561, 565 (Tex. Civ. App.—Tyler 1971, writ ref’d n.r.e.) (“Since the Testator

did not choose to direct the manner of apportionment, it would seem to follow that

he intended the Texas Trust Act to govern.”); see generally Tex. Prop. Code Ann.

§ 111.002 (West 2014) (“This subtitle and the Texas Trust Act, as amended . . .

shall be considered one continuous statute, and for the purposes of any statute or

of any instrument creating a trust that refers to the Texas Trust Act, this subtitle

shall be considered an amendment to the Texas Trust Act.”), § 111.0035(b) (West

Supp. 2017) (stating that the trust’s terms prevail over statutory provisions except

as to items such as illegal purposes, exculpation for breaches of trust, limitations

periods, and a court’s jurisdiction to take certain actions, including modifying or

terminating a trust or removing a trustee). 81 But “under general rules of

construction[,] we avoid strictly construing an instrument’s language if it would lead

to absurd results.” Hemyari v. Stephens, 355 S.W.3d 623, 626–27 (Tex. 2011).

81
Section 111.0035 was added in 2005 and became effective January 1,
2006. See Act of May 12, 2005, 79th Leg., R.S., ch. 148, §§ 2, 32, 2005 Tex. Gen.
Laws 287, 287–88, 296, amended by Act of May 11, 2007, 80th Leg., R.S., ch. 451,
§ 2, 2007 Tex. Gen. Laws 801, 801–02, amended by Act of May 21, 2009, 81st
Leg., R.S., ch. 414, § 2, 2009 Tex. Gen. Laws 995, 995, and amended by Act of
May 9, 2017, 85th Leg., R.S., ch. 62, § 1, 2017 Tex. Sess. Law Serv. 135, 135
(West). For trusts existing on January 1, 2006, that were created before that date,
the 2005 changes apply only to an act or omission relating to the trust that occurred
on or after January 1, 2006. Act of May 12, 2005, 79th Leg., R.S., ch. 148, § 31(b),
2005 Tex. Gen. Laws at 296.

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 (c) Trust Formation

“We look to the settlor’s intent to determine whether a trust was created.”

Hubbard v. Shankle, 138 S.W.3d 474, 484 (Tex. App.—Fort Worth 2004, pet.

denied). “The intent of the settlor must be ascertained from the language used

within the four corners of the instrument,” and we must harmonize all terms to

properly give effect to all parts of the trust instrument and construe it to give effect

to all provisions so that none is rendered meaningless. 82 Eckels, 111 S.W.3d at

694.

There are no particular words required to create a trust if there exists

reasonable certainty as to the intended property, the subject to which the trust

82
Although a settlor’s manifestation of intent to create a trust was not an
express statutory requirement until the legislature’s replacement of the Texas Trust
Act with the Texas Trust Code in 1983 (effective January 1, 1984), see Act of
May 24, 1983, 68th Leg., R.S., ch. 576, art. 2, § 2, 1983 Tex. Gen. Laws at 3654–
3731 (current version at Tex. Prop. Code Ann. §§ 111.001–117.012 (West 2014 &
Supp. 2017)), the requirement that the settlor clearly express the intention to create
a trust had already long been embedded in our case law. See Mills v. Gray, 210
S.W.2d 985, 987 (Tex. 1948) (quoting 54 Am. Jur. 22, sec. 5, for the proposition
that a trust “intentional in fact”—i.e., one in which the “execution of an intention”
occurs—is an express trust); see also Omohundro v. Matthews, 341 S.W.2d 401,
405 (Tex. 1960) (stating that an express trust arises because of a manifestation of
intention to create it); Fitz-Gerald v. Hull, 237 S.W.2d 256, 260 (Tex. 1951) (“[W]e
believe that the Texas cases hold that an express trust ‘can come into existence
only by the execution of an intention to create it by the one having legal and
equitable dominion over the property made subject to it.’” (quoting Mills, 210
S.W.2d at 987)). The 1983 Texas Trust Code repeated the requirement that a
settlor could revoke a trust “unless it is irrevocable by the express terms of the
instrument creating it or of an instrument modifying it.” See Act of May 24, 1983,
68th Leg., R.S., ch. 576, art. 2, § 2, 1983 Tex. Gen. Laws at 3659 (current version
at Tex. Prop. Code Ann. § 112.051); see also Ayers v. Mitchell, 167 S.W.3d 924,
931 (Tex. App.—Texarkana 2005, no pet.) (observing that when there is only one
settlor and he or she dies, the trust becomes irrevocable but that when one of

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obligation relates, and the beneficiary, Hubbard, 138 S.W.3d at 483–84, but “[t]o

create a trust by a written instrument, the beneficiary, the res, and the trust purpose

must be identified.” Perfect Union Lodge No. 10, 748 S.W.2d at 220 (construing

trust created by will); Alpert v. Riley, 274 S.W.3d 277, 286 (Tex. App.—Houston

[1st Dist.] 2008, pet. denied) (op. on reh’g) (“[T]he person intended to be the

beneficiary must be certain.”); see Tex. Prop. Code Ann. § 112.001(1) (stating that

a trust may be created by a property owner’s declaration that the owner holds the

property as trustee for another person). The mere designation of a party as

“trustee” does not create a trust. Nolana Dev. Ass’n v. Corsi, 682 S.W.2d 246, 249

(Tex. 1984). If the trust’s language is unambiguous and clearly expresses the

settlor’s intent, it is unnecessary to construe the instrument because it speaks for

itself. Eckels, 111 S.W.3d at 694.

A trust in real property is enforceable only if there is written evidence of the

trust’s terms bearing the signature of the settlor or the settlor’s authorized agent.

See Tex. Prop. Code Ann. § 112.004; Act of April 15, 1943, 48th Leg., R.S.,

ch. 148, § 7, 1943 Tex. Gen. Laws 232, 234, repealed by Act of May 24, 1983,

68th Leg., R.S., ch. 576, §§ 6, 8, 1983 Tex. Gen. Laws at 3729–30 (rev. civ. stat.

art. 7425b-7). And an entity cannot unilaterally name itself as the beneficiary of a

trust involving another entity’s property. See Best Inv. Co. v. Hernandez, 479

multiple settlors dies and there are purposes of the trust yet unfulfilled, the trust
does not become irrevocable).

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S.W.2d 759, 763 (Tex. Civ. App.—Dallas 1972, writ ref’d n.r.e.) (reciting the

requirement of a written instrument for a real property trust and that “[d]eclarations

of the purported beneficiary of the trust are not competent to establish the trust”).

So while a person can establish a trust for his or her own benefit, he or she must

own the property that is transferred in order to create the trust. See Lipsey v.

Lipsey, 983 S.W.2d 345, 351 n.7 (Tex. App.—Fort Worth 1998, no pet.) (citing Tex.

Prop. Code Ann. § 112.001); see also Elbert v. Waples-Platter Co., 156 S.W.2d

146, 152 (Tex. Civ. App.—Fort Worth 1941, writ ref’d w.o.m.) (citing Wise v.

Haynes, 103 S.W.2d 477, 483 (Tex. Civ. App.—Texarkana 1937, no writ), for the

proposition that the declarations of a beneficiary are not competent to establish a

trust).

(d) Trust Statutes

In 1943, the legislature enacted the Texas Trust Act to govern express

trusts. See Act of Apr. 15, 1943, 48th Leg., R.S., ch. 148, § 48, 1943 Tex. Gen.

Laws 232, 232–47 (effective as of April 19, 1943, as revised civil statute articles

7425b-1–b-47); see also Tex. Prop. Code Ann. § 111.003 (stating that trust

statutes do not govern resulting, constructive, or business trusts or security

instruments). Under the 1943 Act, a trust “in relation to or consisting of real

property” was invalid unless created, established, or declared by a written

instrument “subscribed by the trustor or by his agent” or by any other instrument

under which the trustee claimed the affected estate. Act of Apr. 15, 1943,

48th Leg., ch. 148, § 7, 1943 Tex. Gen. Laws at 234. And “[e]very trust shall be

128
revocable by the trustor during his lifetime, unless expressly made irrevocable by

the terms of the instrument creating the same or by a supplement or amendment

thereto.” Id. § 41, 1943 Tex. Gen. Laws at 246. 83

The 1945 amendments to the Texas Trust Act did not affect the above

provisions. See generally Act of Apr. 5, 1945, 49th Leg., R.S., ch. 77, 1945 Tex.

Gen. Laws 109, 109–14. Likewise, although the Dennis Canon—one of the trust

provisions to which we are referred—was added by TEC to its canons in

September 1979, the above provisions were not substantially modified during the

intervening decades. See Tex. Rev. Civ. Stat. Arts. 7425b-2, b-7, b-41, Texas

Historical Statutes Project, West’s Texas Statutes 1979 Supp. vol. 2, https://

www.sll.texas.gov/assets/pdf/historical-statutes/1979-2/1979-2-supplement-to-

1974-wests-texas-statutes-and-codes.pdf; id., West’s Texas Statutes 1974,

vol. 5, https://www.sll.texas.gov/assets/pdf/historical-statutes/1974-5/1974-5-

wests-texas-statutes-and-codes.pdf.

83
Prior to April 19, 1943, trusts in Texas were considered irrevocable unless
an expressed power of revocation was reserved in the trust’s terms. See Citizens
Nat’l Bank of Breckenridge v. Allen, 575 S.W.2d 654, 657 (Tex. Civ. App.—
Eastland 1978, writ ref’d n.r.e.).

129
 (e) Trespass to Try Title and Adverse Possession

The TEC parties brought a trespass-to-try-title claim, while Appellees

argued, to the contrary, that they adversely possessed any interest that might

otherwise exist for the TEC parties.

An action of trespass to try title may be brought on an equitable title.

Longoria v. Lasater, 292 S.W.3d 156, 165 (Tex. App.—San Antonio 2009, pet.

denied) (op. on reh’g) (“A suit to resolve a dispute over title to land is, in effect, a

trespass to try title action regardless of the form the action takes and whether legal

or equitable relief is sought.”). An owner of a superior equitable title may recover

in a trespass-to-try-title action if the record shows the equitable title is superior to

the defendant’s bare legal title. Id. (citing Binford v. Snyder, 189 S.W.2d 471, 474

(Tex. 1945)). And, of course, here we must look to any subsequent

arrangements—such as the 1984 consent judgment—to determine whether any

equitable interests were modified. See, e.g., Allstate Ins. Co. v. Clarke, 471

S.W.2d 901, 907–08 (Tex. Civ. App.—Houston [1st Dist.] 1971, writ ref’d n.r.e.)

(considering whether earlier trust agreement was superseded by a subsequent

one based on the clear intention of the parties).

The plaintiff in a trespass-to-try-title suit must recover on the strength of his

own title and not on the weakness of the defendant’s title. Bellaire Kirkpatrick Joint

Venture v. Loots, 826 S.W.2d 205, 209 (Tex. App.—Fort Worth 1992, writ denied)

(citing Adams v. Rowles, 228 S.W.2d 849, 853 (Tex. 1950)). When title is

controverted, the defendant admits possession of the subject property but claims

130
better title, and the burden of proof is on the plaintiff to establish a superior title in

himself by an affirmative showing. Id.

When a trustee’s legal title is adversely possessed, the equitable interest

goes with it. See Capps v. Gibbs, No. 10-12-00294-CV, 2013 WL 1701772, at *7

(Tex. App.—Waco Apr. 18, 2013, pet. denied) (mem. op.) (concluding legal and

equitable title obtained by adverse possession); Broussard Tr. v. Perryman, 134

S.W.2d 308, 313 (Tex. Civ. App.—Beaumont 1939, writ ref’d) (stating that “when

the bar of the statute is complete against the legal title vested in the trustee, it

applies also to the equitable title of the cestui que trust”).

The applicable adverse possession standard depends on whether the

person claiming to have adversely possessed the interest is a stranger or a

cotenant. See Rife v. Kerr, 513 S.W.3d 601, 616 (Tex. App.—San Antonio 2016,

pet. denied). For example, “[c]otenants must surmount a more stringent

requirement because acts of ownership ‘which, if done by a stranger, would per se

be a disseizin,’ are not necessarily such when cotenants share an undivided

interest.” BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 70 (Tex. 2011) (quoting

Todd v. Bruner, 365 S.W.2d 155, 160 (Tex. 1963)). Under such circumstances,

the proponent must prove ouster—unequivocal, unmistakable, and hostile acts the

possessor took to disseize the other cotenants. Id.

2. Ownership of Equitable Title

In response to the TEC parties’ issues, Appellees assert that they hold both

legal and beneficial title and are the Corporation’s and EDFW’s rightful officers.

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They argue that the TEC parties’ case is based on revoked trusts, superseded

deeds, repealed bylaws, and oral statements and that the TEC parties’ “scattershot

defenses don’t annul neutral principles” because this is not an ecclesiastical

dispute. They urge that associations are governed by neutral principles and that

a Fort Worth case (Shellberg) from almost 50 years ago is no basis for defying the

supreme court’s mandate.

As previously stated, no one disputes that the Corporation holds legal title

to the various items of property at issue. See Houston First Am. Sav. v. Musick,

650 S.W.2d 764, 767 (Tex. 1983) (“Assertions of fact, not pled in the alternative,

in the live pleadings of a party are regarded as formal judicial admissions.”). The

crux of the parties’ dispute, however, is ownership of equitable title. We therefore

turn, as directed by the supreme court, to the application of our state law on trusts,

corporations, and associations to the deeds and the various entities’ formative

documents, to determine the property ownership issue before us.

a. Trust Law Application

The TEC parties argue that the Dennis Canon sets forth an enforceable,

irrevocable trust for TEC under Texas trust law, as well as under Jones v. Wolf

irrespective of state law requirements, and under this court’s Shellberg opinion as

a contractual trust. They further argue that even if a trust was not established for

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TEC in the Dennis Canon, the deeds of various properties set forth trusts for EDFW

or the congregations.

(1) Dennis Canon

Although the TEC parties “contend that the Dennis Canon is enforceable

under Texas trust law,” we disagree.

The Dennis Canon was adopted in 1979 and purports to impose a trust for

TEC and TEC’s diocese on parish, mission, and congregation real and personal

property, stating,

All real and personal property held by or for the benefit of any Parish,
Mission or Congregation is held in trust for this Church and the
Diocese thereof in which such Parish, Mission o[r] Congregation is
located. The existence of this trust, however, shall in no way limit the
power and authority of the Parish, Mission or Congregation otherwise
existing over such property so long as the particular Parish, Mission
or Congregation remains a part of, and subject to, this Church and its
Constitution and Canons.

The section that follows essentially provides that no other action need be taken for

the trust to be enforceable but that dioceses can take additional action, stating,

The several Dioceses may, at their election, further confirm the trust
declared under the foregoing Section 4 by appropriate action, but no
such action shall be necessary for the existence and validity of the
trust.

But Texas law requires a writing signed by the settlor or the settlor’s agent

to create a trust with regard to real property. See Tex. Prop. Code Ann. § 112.004;

Act of Apr. 15, 1943, 48th Leg., R.S., ch. 148, § 7, 1943 Tex. Gen. Laws at 234,

repealed by Act of May 24, 1983, 68th Leg., R.S., ch. 576, §§ 6, 8, 1983 Tex. Gen.

Laws at 3729–30 (rev. civ. stat. art. 7425b-7). As stated above, a proposed

133
beneficiary cannot unilaterally name itself as the beneficiary of a trust involving

another entity’s property. See Lipsey, 983 S.W.2d at 351 n.7; Best Inv. Co., 479

S.W.2d at 763; see also Tex. Prop. Code Ann. § 111.004(14) (defining “settlor” as

a person who creates a trust or contributes property to a trustee of a trust; “settlor”

means the same as “grantor” and “trustor”), § 112.001 (defining the methods of

creating a trust: through a property owner’s declaration, intervivos transfer, or

testamentary transfer, through the power of appointment to another person as

trustee for the donee of the power or for a third person, or through a promise to

another person whose rights under the promise are to be held in trust for a third

person), § 112.005 (“A trust cannot be created unless there is trust property.”);

McConnell & Goodrich, 58 Ariz. L. Rev. at 322, 335 (reasoning that

“[d]enominations cannot create a trust in favor of themselves in property they did

not previously own” and that “[c]hurches can adopt any internal rules they wish,

but those rules do not have legal force unless they are embodied in the forms

required by state law”). Because under Texas law, an entity that does not own the

property to be held in trust cannot establish a trust for itself simply by decreeing

that it is the beneficiary of a trust, 84 the Dennis Canon, by itself, did not establish a

84
See also Gerstenblith, 39 Am. U. L. Rev. at 566 (explaining that implied
trusts serve to obfuscate land titles and may discourage productive use of the land
because “any investment in the property would be lost if the local entity chose to
disaffiliate”).

134
trust under Texas law, 85 and we overrule this portion of the TEC parties’ argument.

(2) Application of Jones v. Wolf

The TEC parties also argue that regardless of the content of our state law

requirements, a trust is enforceable by virtue of the Dennis Canon, contending that

Jones requires the enforcement of express trusts recited in governing church

documents irrespective of state law. But in Jones, the Court merely referenced

the need for “some legally cognizable form.” 443 U.S. at 603–04, 606, 99 S. Ct.

at 3025–26, 3027. And our supreme court has already stated, “We do not read

Jones as purporting to establish substantive property and trust law that state courts

must apply to church property disputes.” Masterson, 422 S.W.3d at 612. That is,

in Texas, the required legally cognizable form is the one provided by our statutes

and case law. 86 We overrule this portion of the TEC parties’ argument. Having

85
In Masterson, the supreme court did not determine whether the Dennis
Canon imposed a trust but stated that even assuming that it had created one, its
terms did not make it expressly irrevocable. 422 S.W.3d at 613. Based on our
resolution here, we do not reach the question of irrevocability with regard to the
Dennis Canon.
86
The Supreme Court of Tennessee recently reviewed the two schools of
thought that interpret what the Court meant by its “legally cognizable form”
phraseology, characterizing them as the “Strict Neutral-Principles Approach” and
the “Hybrid Neutral-Principles Approach.” See Church of God in Christ, Inc. v. L.M.
Haley Ministries, Inc., 531 S.W.3d 146, 168 (Tenn. 2017) (observing that most
neutral-principles-related litigation has arisen “where a hierarchical religious
organization includes a provision in its constitution and/or other governing
documents providing that local church property is held in trust for the hierarchical
organization and a local church fails or declines to include the trust provision in
deeds or other documents of conveyance”). The Tennessee court described the
strict approach as only giving effect to provisions in church constitutions and
governing documents of hierarchical religious organizations “if the provisions

135
concluded that a trust—revocable or not—was not imposed for TEC through the

Dennis Canon, we do not reach the TEC parties’ Shellberg argument. See Tex.

R. App. P. 47.1.

(3) Other Trusts

The TEC parties complain about the misallocation of 55 properties that

contain what they describe as express trusts in favor of TEC, EDFW, and the

congregations, “with similar language” to the following set out in their brief:

This Conveyance, however, is in trust for the use and benefit of the
Protestant Episcopal Church, within the territorial limits of what is now
known as the said Diocese of Dallas, in the State of Texas . . . .

But in their brief, they point to only one deed of dubious legibility appearing in the

record to support this assertion. 87 Additionally, the TEC parties fail to inform us as

appear in civil legal documents or satisfy the civil law requirements and formalities
for imposition of a trust.” Id. (citing McConnell & Goodrich, 58 Ariz. L. Rev. at 324–
25, defining strict approach’s construction of “legally cognizable form” as
complying with the formalities of property, trust, or contract law). The court
described the hybrid approach—which the majority of states addressing the issue
have followed—as deferring to and enforcing trust language contained in the
constitutions and governing documents even if the language would not satisfy the
civil law formalities normally required to create a trust but recognized that Texas
has adopted the strict approach. Id. (citing Masterson, 422 S.W.3d at 611–12).
87
In their brief, the TEC parties do refer us to “Table E—‘In Trust for The
Episcopal Church’” appearing on 23 pages in volume 30 of the clerk’s record. The
footnote to Table E states that it covers “Episcopal Property held in trust for The
Episcopal Church, held in trust for The Episcopal Church and its Constituent
Diocese, held in trust for a Congregation, and/or held outright by a Congregation
or a related entity but is not limited to the properties listed in Table E.” While
Table E contains references to the Bates numbers of the joint appendix created by
the parties during the summary judgment phase in which the deeds themselves

136
to the degree of similarity they contend this one deed bears to the 54 others.

Therefore, in our analysis and application of the law, we will consider only the

language of (1) this deed, as discussed by the TEC parties in their brief, which is

to one of the properties claimed by All Saints; (2) the other All Saints deed, also

discussed by the TEC parties in their brief; and (3) any other documents related to

these two deeds.

can be found, it does not recite the trust language at issue for any of the deeds
listed therein. Rather, it contains the legal description of each property.

Appellees argue in this appeal that 35 deeds that “placed title in the bishop
of Dallas ‘for the use and benefit of the Protestant Episcopal Church, within the
territorial limits of what is now known as the said Diocese of Dallas, in the State of
Texas,’” imposed a trust for the Diocese of Dallas, not TEC, and that EDFW and
its congregations “inherited all those rights upon division” in the 1984 judgment.
They refer us to a chart in one of the supplemental volumes of the clerk’s record
that identifies various deeds in the joint appendix. The chart contains property
descriptions, identifies the grantee of each deed, and contains Appellees’ opinion
of whether a trust is stated in each deed, along with their statement of which church
uses the property.

We decline the parties’ invitation to parse through this voluminous record on
their behalf to confirm that the conveyance instruments for 35–55 properties
contain “similar language” and do or do not create trusts. See Rogers v. Ricane
Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989) (“[A] general reference to a
voluminous record which does not direct the trial court and parties to the evidence
on which the movant relies is insufficient.”). In light of our disposition below, the
parties will have the opportunity to sort out and present these arguments to the
trial court on remand.

137
 (a) Deeds, Judgment, and Trust Language

(i) 1947 Warranty Deed

The snippet of language that the TEC parties claim is similar to 54 other

properties is contained in a 1947 warranty deed transferring “[a]ll of Block 14,

Chamberlain Arlington Heights” 88 from John P. King and J. Roby Penn to Charles

Avery Mason, as Bishop of the Protestant Episcopal Church for the Diocese of

Dallas, his successors, and assigns, “for and in consideration of the sum of”

$5,000. This deed states, in pertinent part,

TO HAVE AND TO HOLD, all and singular the above described
premises until the said CHARLES AVERY MASON, as aforesaid, his
successors in said office of Bishop aforesaid and his and their assigns
forever, upon condition and in trust, however, for the purposes
declared and set forth.

....

It being expressly agreed between the grantors aforesaid and
the grantee aforesaid, and binding upon his successors in office and
assigns, that the above described land shall be used only for the
building site of a church and/or for the erection of buildings
appertaining to a church, subject however to the following
conditions . . . .

....

This Conveyance, however, is in trust for the use and benefit of the
Protestant Episcopal Church, within the territorial limits of what[] is
now known as the Diocese of Dallas, in the State of Texas, and for
this purpose the said CHARLES AVERY MASON, as aforesaid, and
his successors in office, shall hold, use, improve, manage and control
the above described property in such manner as to him or them, may
seem best for the interest of said Church within said Diocese. And

88
This corresponds to the All Saints property at 5001 Crestline (sanctuary).

138
 the said CHARLES AVERY MASON, as aforesaid, and his
successors in office, shall have, and by these presents, do have, the
right, power, and authority, whenever it may to him or them seem best
for the interest of said Church within said Diocese so to do, lease,
mortgage, sell and otherwise encumber or dispose of the aforesaid
premises, upon such terms, for such prices and in such manner as to
him or them may seem best. And for this purpose he or they may
make, execute and deliver all such leases, mortgages, deeds of trust,
deeds and other written instruments, as the circumstances of the case
may render necessary and expedient. But neither the said CHARLES
AVERY MASON nor any one else shall ever have any right, power or
authority during the continuance of this trust to in anywise encumber
or create a lien upon or any liability against the above described
premises except by an instrument in writing expressly giving a lien
upon said premises, and duly signed and acknowledged by the said
CHARLES AVERY MASON, as aforesaid, or by some one of his
successors in said office of Bishop.[89]
And in the event of death, resignation, suspension, deposition
or removal from office for any cause of any Bishop in whom may at
the time of such death, resignation, suspension, deposition or other
removal from office, be vested the title to the above described
premises, as trustee under this instrument, then, and in that event, the
senior Bishop of the Protestant Episcopal Church in the United States
of America shall be held and deemed to be, for the purpose of
sustaining and p[e]rp[e]tuating this trust, the successor in office of said
Bishop, until vacancy shall have been regularly filled; provided,
however, that said senior Bishop of the Protestant Episcopal Church
in the United States of America shall have no power while thus
temporarily holding the title as trustee to the above described property
to sell, mortgage, lease or in any manner encumber or dispose of said
property. [Emphasis added.]

(ii) 1950 Warranty Deed

The record also contains the June 1950 deed for 5003 Dexter, the other All

Saints property, which Robert McCart Jr., his wife Alice W. McCart, Fannie Belle

89
See, e.g., McConnell & Goodrich, 58 Ariz. L. Rev. at 342–43 (“Placing title
in a denominational official ensures that the property will always remain within the
denomination.”).

139
Hackney, her husband T.E.D. Hackney, and John Lee McCart conveyed to

C. Avery Mason, “Bishop of the Protestant Episcopal Church, Diocese of Dallas,

in the State of Texas, and his successors in office” for $4,000. It contains no trust

language.

(iii) 1984 Judgment

The 1984 judgment transferred legal title to both properties to the

Corporation. In the 1984 judgment, the trial court stated,

[L]egal title to the following real and personal property shall be as
follows . . . [w]ith respect to the Diocese of Fort Worth, title to the
following assets and property shall be vested by this declaratory
judgment in Corporation . . . [a]ll real property which as of December
31, 1982, stands in the name of Episcopal Diocese of Dallas or in the
name of any of its Bishops as Bishop of Dallas, including . . . Bishop
Charles Avery Mason . . . which is physically located within the
Count[y] of . . . Tarrant . . . described on Exhibit B attached hereto and
incorporated herein by reference . . . .

The trial court further stated, “Nothing in this judgment shall be deemed to deal

with, or otherwise affect, properties, real or personal, disposed of under

testamentary or inter vivos gift executed or effective prior to December 31, 1982,

which bequest is to the Diocese of Dallas or the Bishop thereof.”

(iv) EDFW’s Constitutional and Canonical Trust
Provisions

EDFW’s constitution states that title to all real property acquired “for the use

of the Church in this Diocese,” including the real property of all parishes, missions,

140
and diocesan institutions, shall be held “subject to control of the Church in the[90]

Episcopal Diocese of Fort Worth acting by and through a corporation known as

‘Corporation of the Episcopal Diocese of Fort Worth.’” The Corporation is to hold

real property acquired for the use of a particular parish or mission in trust for that

parish or mission’s use and benefit, but if that mission or parish were to dissolve,

the property would revert to the Corporation for EDFW’s use and benefit.

EDFW’s canon 18.2 (previously canon 12.4), revised in 1989, provides that

real property acquired by the Corporation for the use of a particular parish, mission,

or diocesan school would be held in trust for the use and benefit of such entities

and that it was “immaterial whether said acquisition is by conveyance to the

Corporation by a Parish, Mission or Diocesan School now holding title, by the

Bishop now holding title as a corporate sole, by a declaratory judgment upon

division from the Diocese of Dallas, or by subsequent conveyance to the

Corporation, so long as such property was initially acquired by a Parish, Mission

or Diocesan School by purchase, gift or devise to it, as a Parish, Mission or

Diocesan School.” Canon 18.4, added by 1989, states that all other property of

the Corporation held for EDFW is held for exempt religious purposes—as defined

90
By 2006, the word “the” was capitalized, reciting that the property would
be held “subject to control of the Church in The Episcopal Diocese of Fort Worth.”

141
by the Internal Revenue Code and determined by EDFW’s convention “and the

appropriate officers elected by it.” 91

Since EDFW’s inception, under EDFW’s canons, a parish can organize a

corporation “to use in connection with the administration of its affairs,” but it is

“merely an adjunct or instrumentality,” because the parish itself, “being the body in

union with Convention, shall not be incorporated.” The adjunct corporation “shall

not hold title to real estate acquired for the use of the Church in the Diocese, which

title must be vested and dealt with in accordance with the provisions” in EDFW’s

constitution.

(v) All Saints Episcopal Church, Inc.

All Saints Episcopal Church incorporated an entity, and in its 1991 bylaws,

it added a clause as follows with regard to property:

All real and personal property held by or for the benefit of All
Saints’ Episcopal Church is held in trust for The Episcopal Church and
the Diocese thereof in which the Church is located. The existence of
this trust, however, shall in no way limit the power and authority of All
Saints’ Episcopal Church otherwise existing over such property so
long as the Church remains a part of, and subject to The Episcopal
Church General Convention Constitution and Canons. Title I,
Canon 7, Section 4 [the Dennis Canon] of the General Convention
Canons is hereby ratified and confirmed in its entirety. [Emphasis
added.]

These amendments were signed by All Saints’s clerk and rector. All Saints

subsequently deleted the last sentence, “Title I, Canon 7, Section 4 of the General

91
Pursuant to the 1989 revisions, section 18.4 also expressly disclaims any
beneficial interest for TEC.

142
Convention Canons is hereby ratified and confirmed in its entirety,” in 2001, but

the remainder went unchanged.

(b) Identification of Beneficiaries

(i) Other Summary Judgment Evidence

We have previously set out the history of TEC’s presence in Texas,

beginning in 1849 with the formation of the Diocese of Dallas, which gave birth to

EDFW, which in 1982 received approval from TEC and acceded to TEC’s

constitution and canons.

(A) TEC’s Constitution and Canons

There was no substantive change in TEC’s relevant constitutional and

canonical provisions between 1979 and 2006. The preamble to TEC’s constitution

states that the association’s name is the Protestant Episcopal Church in the United

States of America, “otherwise known as The Episcopal Church (which name is

hereby recognized as also designating the Church).” The constitution also sets

out the method that EDFW followed in becoming a TEC diocese. Other provisions

explain how two dioceses can be reunited into one (essentially, the dissolution of

one of two dioceses into its originating diocese) and that for missionary dioceses

outside the territory of the United States of America, TEC’s presiding bishop can

consult “with the appropriate authorities in the Anglican Communion” and “take

such action as needed for such Diocese to become a constituent part of another

Province or Regional Council in communion with” TEC. There is no corresponding

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provision in TEC’s constitution and canons for a diocese—missionary or not—

within the United States to separate from TEC.

Although the Dennis Canon did not set forth a valid express trust under

Texas law, its language provides some indication of how TEC views Church

property: parish property is held for “this Church and the Diocese thereof in which

such Parish, Mission or Congregation is located.” Likewise, TEC’s canons provide

that “[n]o Church or Chapel shall be consecrated until the Bishop shall have been

sufficiently satisfied that the building and the ground on which it is erected are

secured for ownership and use by a Parish, Mission, Congregation, or Institution

affiliated with this Church and subject to its Constitution and Canons.”

(B) EDFW’s Constitution and Canons

(I) EDFW’s Geographic Description

EDFW’s constitution and canons, as adopted by conventions from 1982 to

2006, included the following geographic description of EDFW:

The Diocese of Fort Worth shall consist of those Clergy and Laity of
the Episcopal Church in the United States of America resident in that
portion of the State of Texas including the twenty-three (23) Counties
of Archer, Bosque, Brown, Clay, Comanche, Cooke, Dallas (only that
portion of the County that includes the City of Grand Prairie),
Eastland, Erath, Hamilton, Hill, Hood, Jack, Johnson, Mills, Montague,
Palo Pinto, Parker, Somervell, Stephens, Tarrant, Wichita, Wise, and
Young.

This provision was omitted in the 2008 constitution and canons.

Pursuant to the 1982 constitution, every parish and mission in EDFW

in existence at the time of the organization of the Diocese and every
Parish and Mission which shall have been created and admitted in

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 accordance with the Constitution and Canons of this Diocese, shall
be deemed to be in union with and entitled to representation in the
Convention of the Diocese, unless deprived of such right either
through suspension or dissolution. [Emphasis added.]

By 2006, the provision about existence at the time of EDFW’s organization had

been deleted and was modified to read, “Every Parish and Mission which shall

have been created or admitted in accordance with the Constitution and Canons of

this Diocese . . . .” [Emphasis added.] There was no substantive change between

2006 and 2008 as to the definition of who would be considered “in union with”

EDFW.

(II) 1982

On November 13, 1982, “pursuant to the approval of the 67th General

Convention of The Episcopal Church,” EDFW acceded to TEC’s constitution and

canons and adopted its own constitution and canons. The preamble of that

constitution states, “We, the Clergy and Laity of the Episcopal Church, resident in

that portion of the State of Texas, constituting what is known as the Episcopal

Diocese of Fort Worth, do hereby ordain and establish the following constitution[.]”

The original governing EDFW documents consisted of 18 articles and 39 canons.

They set out recognition of the authority of TEC’s General Convention by “The

Church in this Diocese,” and set out governing procedures for EDFW’s

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conventions, its annual meeting, voting, 92 and amending the constitution. 93

Canons that were “not inconsistent” with the diocesan convention or with TEC’s

constitution and canons could be adopted, altered, amended, or repealed at any

annual convention by a majority vote, subject to notice requirements. We have

already set out above the constitutional and canonical provisions dealing with real

property.

(III) 2006

By 2006, over two decades later, EDFW’s constitution increased from 18 to

19 articles, and its number of canons increased to 42. There was no change to

the preamble, but the first article, “Authority of General Convention,” was modified

to state,

The Church in this Diocese accedes to the Constitution and
Canons of The Episcopal Church, and recognizes the authority of the
General Convention of said Church provided that no action of General
Convention which is contrary to Holy Scripture and the Apostolic
Teaching of the Church shall be of any force or effect in this Diocese.
[Emphasis added.]

Additionally, the article on canons saw a rephrasing that allowed greater latitude

in EDFW’s discretion, from the earlier, “Canons not inconsistent with this

92
The constitution provided for majority rule “[u]nless a vote by orders is
determined or required or otherwise provided by the Constitution or Canons” or
where the constitution or canons require a two-thirds vote.
93
The constitution provided for majority vote in the first year of the
constitutional amendment’s consideration by the annual convention, and then a
concurrent majority of the vote of both orders in the second year of its consideration
by the annual convention.

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Constitution, or the Constitution and Canons of the General Convention, may be

adopted, altered, amended, or repealed at any Annual Convention by a majority

vote of the Convention,” to “Canons consistent with this Constitution, and the

Constitution and Canons of the Episcopal Church, may be adopted, altered,

amended, or repealed at any Annual Convention by a majority vote of the

Convention.” [Emphasis added.]

(IV) 2008

In 2008, EDFW’s constitution retained 19 articles but the number of canons

increased from 42 to 44, and the diocese’s geographic description was deleted.

The constitution and canons were significantly modified, beginning with the

preamble, from the original, “We, the Clergy and Laity of The Episcopal Church,

resident in that portion of the State of Texas, constituting what is known as The

Episcopal Diocese of Fort Worth,” from 1982–2006, to “We, the Clergy and Laity

of The Episcopal Diocese of Fort Worth.” [Emphasis added.]

Article 1, previously “Authority of General Convention,” was replaced with

“Anglican Identity,” stating,

The Episcopal Diocese of Fort Worth is a constituent member
of the Anglican Communion, a Fellowship within the Only Holy
Catholic and Apostolic Church, consisting of those duly constituted
Dioceses, Provinces and regional Churches in communion with the
See of Canterbury, upholding and propagating the historic Faith and
Order as set forth in the Old and New Testaments and expressed in
the Book of Common Prayer. [Emphasis added.]

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Article 18, “Canons,” was amended to delete reference to the Constitution and

Canons of TEC’s General Convention. 94 Most of EDFW’s canons that contained

references to “The Episcopal Church in the United States of America” were

amended to remove those references, 95 although the express denial of a beneficial

interest in TEC in property held by the Corporation in canon 18 was retained. 96

94
The new provision stated, “Canons consistent with this Constitution may
be adopted, altered, amended, or repealed at any Annual Convention of the
Episcopal Diocese of Fort Worth by a majority vote of the Convention.”
95
For example, whereas the 2006 canons on missions and new parishes
required in the application to join EDFW that aspirant members of missions or
parishes “promise to abide by and to conform to the Constitution and Canons of
the General Convention, and of the Diocese of Fort Worth,” the 2008 canons
required that they “promise to abide by and to conform to the Constitution and
Canons of the Episcopal Diocese of Fort Worth.” The annual parochial report that
every parish and mission was required to prepare “upon the form provided by The
Executive Council of The Episcopal Church in the United States of America” was
changed in the 2008 amendments to “upon the form provided by The Episcopal
Diocese of Fort Worth.” The 2006 canons provided that books and accounts in
every congregation in EDFW “shall conform to THE MANUAL OF BUSINESS
METHODS IN CHURCH AFFAIRS of The Episcopal Church in the United States
of America.” This requirement was changed in 2008 to require conformance “to
generally accepted accounting principles.”
96
Article 17, “Election of Bishops and Calling of an Assistant Bishop,” in an
apparent oversight, continued to provide that the bishop “may call an Assistant
Bishop in accordance with the Constitution and Canons of the Episcopal Church.”
[Emphasis added.] The standing rules of procedure of the annual convention with
regard to appointments, in another apparent oversight, continued to provide that

The Bishop shall have the authority to appoint all Board members,
Trustees, Committee members, and fill other positions which are not
required to be elected or otherwise selected by the Constitution or
Canons of the Episcopal Church in the United States of America, the
Constitution or Canons of the Diocese of Fort Worth or any other
lawful authority. [Emphasis added.]

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A new constitutional article was added to provide for deputies or delegates to

“extra-diocesan conventions or synods.” Canon 32, previously entitled

“Controversy between Rector and Vestry,” was amended to cover controversies

“between a Parish and the Diocese.”

The record reflects that on three occasions during 2008—January 9,

February 12, and September 8—Bishop Iker and the standing committee

presented reports to EDFW on the constitutional and canonical implications and

means of becoming a member diocese of the Anglican Province of the Southern

Cone. The third report recommended that EDFW affiliate with the Anglican

Province of the Southern Cone as a member diocese “until such time as an

orthodox Province of the Anglican Communion can be established in North

America.” Bishop Iker likewise issued a statement entitled, “10 Reasons Why Now

Is the Time to Realign,” which included observing that “[a]t this time there is nothing

in the Constitution or Canons of TEC that prevents a Diocese from leaving . . . [s]o

we have this window of opportunity to do what we need to do” before TEC’s

General Convention could adopt amendments making it more difficult to separate.

(ii) Associations Law versus Identity

(A) The Parties’ Arguments

The TEC parties apply a macro-level approach to the associative

relationship between TEC and EDFW by arguing that the First Amendment forbids

us from overriding TEC on the question of who can represent an Episcopal diocese

or congregation and that under associations law, only the TEC parties are entitled

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to control EDFW. That is, the TEC parties view Appellees’ claimed disaffiliation as

void under the larger association’s rules and the General Convention’s

determination that the alleged disaffiliation was a nullity. They also argue that the

All Saints properties are held in trust for TEC and for the All Saints Church affiliated

with TEC.

Appellees respond that this is not an ecclesiastical dispute and claim that

“[s]ince a dispute about the officers of a Texas corporation is not ecclesiastical,

then a dispute about the officers of a Texas unincorporated association isn’t

either.” They also argue that the highest authority on property issues—within or

outside of TEC—is the local bishop, not TEC’s administrative officers, reciting

terminology from TEC’s Canons, Title IV, “Ecclesiastical Discipline,” which defines

“ecclesiastical authority” as the diocese’s bishop or standing committee “or such

other ecclesiastical authority established by the Constitution and Canons of the

Diocese.”

Appellees further argue that “[t]he founders of TEC had made similar solemn

engagements to the Church of England – but they certainly didn’t forfeit church

property in America when those churches separated.” 97 And they argue, “[N]one

of the property documents incorporate religious tests, and neither side has asked

the courts to decide who can lead worship or attend church conventions,” nor have

97
Appellees conveniently ignore the revolutionary reason for the separation
and the geopolitical and logistical complexity in the 1700s that recuperating such
property would have entailed.

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the courts been asked “to decide who can lead any religious body, or whether

dioceses can withdraw from TEC.” 98

Appellees point out that Texas law dictates how the association’s and

corporation’s officers can be elected or replaced, and Texas law governs the

Corporation’s and EDFW’s amendments to drop any reference to TEC. Appellees

rely on the Corporation’s holding legal title and their defendant-congregations

holding beneficial title based on their union with the diocesan convention. They

argue: (1) EDFW’s constitution and canons define missions and parishes as

unincorporated associations in union with the diocesan convention; those not “in

union” are not entities for which the Corporation holds property and those “in union”

are those who send delegates to the convention’s annual meeting; (2) Texas law

makes EDFW’s constitution and bylaws controlling, and the annual convention

elected Bishop Iker and opted to disaffiliate; and (3) TEC’s “newly formed” diocese

did not inherit the property of the existing diocese simply by adopting the same

name. 99

98
As noted by the court in Diocese of San Joaquin, we do not have to decide
whether a diocese can leave TEC to resolve this property-based dispute. See 202
Cal. Rptr. 3d at 63–64. And per Westbrook, we cannot decide whether a diocese
can leave TEC. See 231 S.W.3d at 403 (referring to the spirit of freedom for
religious organizations “even if that freedom comes at the expense of other
interests of high social importance”).
99
Perhaps learning from other dioceses’ experience, one of Appellees’
theories appears to be “Keep the name, keep the stuff.” See Diocese of San
Joaquin, 202 Cal. Rptr. 3d at 66–67 (holding attempts to transfer property from
The Protestant Episcopal Bishop of San Joaquin to The Anglican Bishop of San
Joaquin invalid). They also argued in the trial court that turning churches over to

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 The TEC parties reply that Appellees’ own theory concedes that the neutral

principles analysis establishes legally-enforceable trusts for EDFW and its

congregations, which leads to the ecclesiastical question of who may control these

religious entities and puts the case squarely within the exception Masterson and

Episcopal Diocese detailed (i.e., ecclesiastical structure determines property

dispute). They further argue that the All Saints properties are in trust for the TEC-

affiliated All Saints based on All Saints’s governing documents, particularly the All

Saints 2001 bylaws.

(B) Analysis

We must initially determine whether this is an associations-law question or

an identity question. 100 To do so, we must look at the substance and effect of the

TEC parties’ live pleading. In their live pleading, the TEC parties intermingled a

number of claims seeking legal and equitable relief with others seeking relief based

congregations that do not use them would violate the express trust in EDFW’s
charters for the benefit of those who actually use them and that to hold against
them would unjustly enrich a minority group “too small to impose its will” during the
schism.
100
If it is an identity question—i.e., whether Appellees are “Episcopal”
(capital-E) or merely “episcopal” (lowercase-e) as pertains to “of, being, or suited
to a bishop,” see episcopal, Webster’s 3rd New Int’l Dictionary 764 (3rd ed.
2002)—then the First Amendment bars our consideration of this religious issue
within the limits set out by U.S. Supreme Court jurisprudence. Webster’s second
definition of “episcopal” has two parts: (a) “of, advocating, or governed by an
episcopacy,” and (b) “of or relating to the Protestant Episcopal Church or the
Episcopal Church in Scotland.” Id. at 764–65. Webster’s defines “episcopalian”
as (1) an adherent to the episcopal form of church government and (2) “a member
of an episcopal church (as the Protestant Episcopal Church).” See id. at 765.

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on doctrine and internal procedures. Some of their claims, particularly as

beneficiaries of trusts—as set out above—are claims that we may legitimately

consider in our neutral-principles review. Based on the above, we have

determined that there is a question about who is the “Protestant Episcopal Church,

within the territorial limits of what is now known as the said Diocese of Dallas, in

the State of Texas,” referred to in the 1947 deed.

With that in mind, we note that our supreme court has already identified TEC

as a hierarchical organization and has stated that whether TEC’s appointed bishop

can take such actions as forming a parish, recognizing membership, and

authorizing the establishment of a vestry “are ecclesiastical matters of church

governance” over which the court lacks jurisdiction. Masterson, 422 S.W.3d at

608. Our supreme court has also acknowledged that TEC’s appointed bishop

could, “as an ecclesiastical matter, determine which faction of believers was

recognized by and was the ‘true’ church loyal to the Diocese and TEC.” Id. at 610.

TEC has recognized the TEC parties as the Episcopal Diocese of Fort Worth.

And notwithstanding any ecclesiastical implications, where the internal

actions of TEC and EDFW are not illegal in the nonecclesiastical sense, fraudulent,

against public policy, or a threat to public health and safety, judicial review of these

actions would be improper. See Westbrook, 231 S.W.3d at 392, 402, 404;

Whitmire, 2009 WL 2196126, at *4–5; Harden, 634 S.W.2d at 59–60. One of the

questions before us, then—to the extent we can consider it—is whether this record

reflects that their actions were illegal, against public policy, fraudulent, or a threat

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to public health and safety, or whether, instead, they were proper actions that were

permissible and binding on their members under their internal rules. To the limited

extent that we can consider these organizations’ internal actions, we do not think

that the record affirmatively reflects any activities that were per se illegal in a

nonecclesiastical sense or against public policy, fraudulent, or against public

health and safety.

Although Appellees argue that under state associations law they were within

their rights to remove the diocese and diocesan property from TEC, such law

applies to the rules used by associations to regulate, within legal limits, their own

internal affairs, not to the question of an association’s identity. Compare Juarez,

172 S.W.3d at 279 (private association’s right to govern its affairs), with Jones,

443 U.S. at 604, 99 S. Ct. at 3026 (stating that if the interpretation of an ownership

instrument requires resolution of a religious controversy, the court must defer to

resolution of the doctrinal issue by the authoritative ecclesiastical body), and

Westbrook, 231 S.W.3d at 398, 400 (quoting Minton, 297 S.W. at 621–22, to

explain why courts must decline jurisdiction over disputes concerning church

membership and holding that while neutral principles may define a dispute, their

application may impinge on a church’s ability to manage its internal affairs).

Further, their assertion ignores the fact that EDFW was part of the larger,

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hierarchical association and subject to the larger association’s constitution and

canons until disaffiliation. 101

Under associations law, while the members of EDFW were within their rights

to modify their governing documents however they saw fit as long as they did so

by following their own internal rules, EDFW was also a member entity of a larger

association, and its actions in modifying its governing documents directly conflicted

with the larger association’s governing documents. When it defied the governing

strictures of the association of which it was a member, and particularly when it

declared itself apart from that organization, it lost its identity as a part of that larger

association. 102 See Green, 808 S.W.2d at 550–51 (listing factors courts consider

to identify whether a church is hierarchical); Templo Ebenezer, Inc., 752 S.W.2d

at 198 (distinguishing hierarchical churches from congregational churches based

on the congregational-type church’s independence and ability to “totally control[]

its own destiny”).

TEC’s dioceses are members of TEC, identified by the dioceses’ accession

to TEC’s governing rules, just as parishes simultaneously accede both to TEC’s

101
Representatives from each parish and mission voted in EDFW’s
conventions; EDFW representatives, until 2008, voted in TEC conventions. TEC
set up rules over EDFW, and EDFW set up rules over parishes, missions, and
other congregations, which were also governed by TEC’s rules until 2008.
102
The obedience or disobedience of TEC to an even larger body—the
Anglican Communion—is not a question before us and not one that we could
address even if it were.

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governing rules and to their governing diocese’s rules. Individual members of a

parish may decide to worship elsewhere; a majority of individual members of a

parish or diocese may decide to do so. But when they leave, they are no longer

“Episcopalians” as identified by TEC; 103 they become something else. And that

something else is not entitled to retain property if that property, under the terms of

the deed, is held in trust for a TEC-affiliated diocese or congregation. By rejecting

TEC, Appellees also rejected any claim to items and property affiliated with TEC

or with being a TEC-affiliated diocese to the extent that the instruments of

ownership spell out an express interest. While a decision to disaffiliate is an

ecclesiastical matter, what happens to the property is not, unless the affairs have

been ordered so that the ecclesiastical decisions effectively determine the property

issue, see Masterson, 422 S.W.3d at 607, and the macro-level view of the

associations’ relationship is consistent with the deference we are required to give

to the ecclesiastical determination by a hierarchical church. See id. (“Civil courts

are constitutionally required to accept as binding the decision of the highest

authority of a hierarchical religious organization to which a dispute regarding

internal government has been submitted.”).

The plain language of the 1947 deed sets forth a trust with the identified

beneficiary as “the Protestant Episcopal Church” as it was located within the

103
Under article V of TEC’s constitution, there are only three ways to create
a new diocese, voiding Appellees’ argument that the TEC-affiliated diocese is a
“new” diocese.

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territorial limits of what was formerly the Diocese of Dallas. As set out above, it

was within those territorial limits that the Diocese of Dallas gave birth to EDFW.

From the various documents in the record of this case, the “Protestant Episcopal

Church” identified in the deed at the time of the deed’s making is TEC, thus making

TEC’s local Fort Worth affiliate the beneficiary of the trust. That is, the trust did not

make TEC itself the beneficiary; rather, by its language, the trust identified the

diocese affiliated with TEC as located within that territory as the beneficiary. This

is most clear when considering that the 1984 judgment did not actually touch the

property’s equitable title, which was vested in the Church in a diocese whose name

and geographic configuration might change as, anticipated since 1910, the giant

Diocese of Dallas would—and subsequently did—pursuant to its division into two

TEC dioceses. TEC continues to exist and has identified its affiliate within the

territory. See Episcopal Diocese, 422 S.W.3d at 652 (“[D]etermination of who is

or can be a member in good standing of TEC or a diocese is an ecclesiastical

decision.”).

Plugging these answers into our flow chart leads us to the conclusion that

the TEC-affiliated EDFW holds the equitable interest under the 1947 deed. 104 That

104
Although EDFW’s canon on real property purported to create a trust on
real property acquired by the Corporation “for the use of a particular parish or
mission,” neither the 1947 deed nor the canon itself identifies All Saints as the
beneficiary of the trust, and there is no indication that the property “was initially
acquired by” All Saints Parish “by purchase, gift or devise to it” as a parish.
Accordingly, no trust was expressly created for All Saints by EDFW in its governing
documents.

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is, because there is a question about who is “the Protestant Episcopal Church,

within the territorial limits of what is now known as the Diocese of Dallas,” we must

ask whether TEC is a hierarchical church. Because our supreme court has already

determined that TEC is a hierarchical church, see Masterson, 422 S.W.3d at 608,

we must defer to TEC’s identification of its affiliated diocese when no claim of fraud

or collusion for secular purposes, or a threat to public health and safety, has been

raised.

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 Apply neutral principles:
• Legal title in the Corporation;
• Equitable title for “the Protestant Episcopal
Church, within the territorial limits of what
is now known as the Diocese of Dallas.”

There is a question about
who is “the Protestant
Episcopal Church, within the
territorial limits of what is
now known as the Diocese of
Dallas.”

Per Masterson, 422 S.W.3d
at 608, TEC is a
hierarchical church.

TEC has decided who its affiliated
diocese is.

There is no claim of
fraud or collusion for
secular purposes (or
a threat to public
health and safety)
pertaining to the
parties’ actions.

Defer to TEC’s
decision on
identity.

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 As to the 1947 deed presented to us for review, we cannot say—because

we may not delve into questions of theology—whether the group that left TEC

shares the same beliefs as the original EDFW’s membership at the time of the

deed. We may not consider the religious beliefs of anyone when making a legal

determination under neutral principles. See Jones, 443 U.S. at 604, 99 S. Ct. at

3026 (stating that when the deed incorporates religious concepts in the provisions

relating to the ownership of property, if the interpretation of the ownership

instrument requires the court to resolve a religious controversy, “then the court

must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical

body”); Presbyterian Church, 393 U.S. at 450, 89 S. Ct. at 606–07 (stating that the

First Amendment forbids civil courts from considering whether general church’s

actions constitute a substantial departure from the tenets of faith and practice

existing at the time of the local churches’ affiliation); Brown, 116 S.W. at 364–65

(“[T]he church to which the deed was made still owns the property, and . . .

whatever body is identified as being the church to which the deed was made must

still hold the title.”); cf. Diocese of Quincy, 2014 IL App (4th) 130901, ¶ 47, 14

N.E.3d at 1256 (concluding deference does not apply when hierarchical structure

is not discernible). All we have done here is apply the binding precedent of the

United States and Texas Supreme Courts to the plain language of the instruments

of title.

As to the 1950 deed, although EDFW attempted to impose a trust for All

Saints in its governing documents, per Masterson, based on the plain language of

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the deed and the 1984 judgment, the Corporation holds both legal and equitable

title to this property. See 422 S.W.3d at 610 (“Under neutral principles of law, the

deeds conveying the property to Good Shepherd corporation ‘expressed no trust

nor limitation upon the title,’ and therefore the corporation owns the property.”). As

such, EDFW could not declare itself or anyone else as the beneficiary of property

to which it held neither a legal nor equitable interest. 105 See Lipsey, 983 S.W.2d

at 351 n.7; Best Inv. Co., 479 S.W.2d at 763.

We sustain the TEC parties’ subissues 1(a) and 1(b) and part of subissue

1(c), and we sustain TEC’s sole stand-alone issue with regard to whether the trial

court erred as a matter of law in its application of neutral principles by failing to

defer to TEC’s ecclesiastical determination of which entity constitutes EDFW.

(c) Adverse Possession

Appellees argue that 1989’s canon 18 expressly disclaimed any beneficial

interest for TEC and that because EDFW was a separate legal entity controlled by

its own convention, TEC’s claim for a trust interest was barred by limitations. But

we have already held that TEC has no trust interest in the two properties at issue.

With regard to a trust interest by the remaining TEC parties, until 2008, when

Appellees formally severed ties to TEC, Appellees’ possession of the properties

105
All Saints likewise attempted to impose a trust on this property for EDFW
and TEC, but it held no interest that would have allowed it to do so. Further, it did
so through its incorporated entity, which also held neither a legal nor an equitable
interest. Therefore, its attempted trust also failed.

161
was not adverse—“hostile,” under a claim of right inconsistent with another’s

claim—to them. See Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (West 2002).

Accordingly, the trial court erred by granting summary judgment for Appellees on

the two pieces of property at issue if it granted summary judgment on this basis,

and we sustain the TEC parties’ subissue 1(i).

(d) Conclusion

To avoid delving into ecclesiastical matters—considerations forbidden to us

by the First Amendment and U.S. Supreme Court and Texas Supreme Court

precedent—we conclude that the Corporation holds the property identified in the

1947 deed in trust for the TEC-affiliated EDFW and holds legal and equitable title

to the property identified in the 1950 deed. We sustain the TEC parties’ subissue

1(e) as it relates to the 1947 deed and their subissue 1(k) as to the 1947 deed and

remand this portion of the case for reconsideration of the other deeds containing

the language “similar” to that identified above.

3. Control of the Corporation

We must now determine who controls the Corporation. 106 As stated by the

supreme court in Masterson, the principles set out in our business organizations

code govern because the Corporation “was incorporated pursuant to secular

Texas corporation law and Texas law dictates how the corporation can be

106
This issue will determine standing for the ownership issue as to the 1950
deed.

162
operated, including how and when corporate articles and bylaws can be amended

and the effect of the amendments.” 422 S.W.3d at 613; see Tex. Bus. Orgs. Code

Ann. §§ 1.002(59), 22.001(3); see also id. § 2.002(1) (West 2012).

a. The Corporation’s Formation and Governance

(1) Articles and Bylaws

As set out in our factual recitation, the Corporation’s articles of incorporation

were filed in the Texas Secretary of State’s Office on February 28, 1983, and

established that the Corporation’s purpose was “[t]o receive and maintain a fund

or funds or real or personal property, or both, from any source including all real

property acquired for the use of the Episcopal Diocese of Fort Worth as well as the

real property of all parishes, missions and diocesan institutions.” [Emphasis

added.] Property held by the Corporation was to be “administered in accordance

with the Constitution and Canons of the Episcopal Diocese of Fort Worth as they

now exist or as they may hereafter be amended.” The Corporation’s articles also

set out that its bylaws would address the election of its board of directors and their

terms of office.

The 1983 bylaws specified that the Corporation’s affairs would be

“conducted in conformity with the Constitution and Canons of the Episcopal Church

in the United States of America and the Constitution and Canons of the Episcopal

Diocese of Fort Worth, as they may be amended or supplemented from time to

time by the General Convention of the Church or by the Convention of the

163
Diocese,” and that any conflict between the bylaws and the constitution and

canons would be resolved in favor of the constitution and canons.

With regard to the number, election, and term of office of trustees for the

“Diocesan Corporation,” the bylaws provided for EDFW’s bishop to be the

chairman, plus five elected trustees serving five-year terms, with one trustee to be

elected every year at the annual convention. Each of the elected trustees would

serve until his successor’s election and qualification or “until his death, resignation,

disqualification or removal.” The bylaws specified that to be qualified, a trustee

“may be either lay persons in good standing of a parish or mission in the Diocese

of Fort Worth, or members of the Clergy canonically resident within the Diocese.”

Any trustee at that time could be removed by EDFW’s bishop. The bylaws also

provided for amendment “by the affirmative vote of a majority of the total number

of Trustees at any regular or special meeting of the Board, if notice of the proposed

change is included in the notice of such meeting.”

The 2006 bylaw amendments provided that the Corporation’s affairs

shall be conducted in conformity with the body now known as the
Episcopal Diocese of Fort Worth’s acknowledgment of and allegiance
to the One, Holy, Catholic and Apostolic Church of Christ; recognizing
the body known as the Anglican Communion to be a true branch of
said Church; with all rights and authority to govern the business and
affairs of the Corporation being solely in the board of trustees (as
hereinafter defined, the “Board”) of the Corporation. [Emphasis
added.]

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This amendment deleted prior reference to “the Constitution and Canons of the

Episcopal Church in the United States of America and the Constitution and Canons

of the Episcopal Diocese of Fort Worth.”

A new section was added to facilitate identification of the EDFW bishop as

chairman of the board, stating, in pertinent part, “The bishop recognized by the

body now known as the Episcopal Diocese of Fort Worth (the “Bishop”) shall be a

trustee and a member of the Board.” [Emphasis added.]

There was no change to the number, election, or term of office for trustees

other than to clarify that the trustees, who were elected at a rate of one per annual

meeting, could be either lay persons in good standing of a parish or mission “in the

body now known as the Episcopal Diocese of Fort Worth” or members of the clergy

“canonically resident within the geographical region of the body now known as the

Episcopal Diocese of Fort Worth.” [Emphasis added.] The rest of the sections

remained substantively unchanged except for the section pertaining to removal of

trustees—while the previous section provided that any trustee could be removed

by the bishop, the amended section stated that any elected trustee could be

removed by a majority of the remaining members of the board.

The Corporation’s September 2006 amended and restated articles of

incorporation deleted the portion of the earlier article with regard to real property

acquired for the use of the diocese, parishes, missions, and diocesan institutions

and stated that the Corporation was organized “[t]o receive and maintain a fund or

funds or real or personal property, or both, from any source.” The articles were

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also amended to delete reference to EDFW’s constitution and canons with regard

to the administration of the property held by the Corporation. The articles

incorporated the same provision as the amended bylaws to identify the

Corporation’s chairman.

(2) Corporate Records

Virden, who had been the Corporation’s secretary since 1983, averred in his

affidavit that he was the custodian of the Corporation’s business records. He

sponsored excerpts from the Corporation’s official minutes, which showed that on

August 15, 2006, the board of trustees voted to amend the Corporation’s articles

and bylaws. Between February 1, 2005 and 2014, the record reflects no change

in the Board’s composition of Bishop Iker, Salazar, Patton, Bates, Barber, and

Virden. None of the Corporation’s minutes reflect the removal or resignation of

any trustee nor the election of any other trustees.

At the August 15, 2006 meeting, all of the trustees—Bishop Iker, Salazar,

Patton, Bates, Barber, and Virden—were present. Bishop Iker requested that the

minutes “reflect that due notice was given to all trustees that the meeting would

include consideration and voting on the adoption of Amended and Restated

Articles of Incorporation for the Corporation . . . and proposed amendments to the

bylaws of the [C]orporation.” Bates moved to adopt the proposed amendments to

the bylaws, Patton seconded the motion, and the motion passed unanimously.

Patton moved to approve the amended and restated articles of incorporation,

Bates seconded her motion, and the motion passed unanimously.

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 (3) Other Documents

EDFW’s constitution and canons provided for the establishment of the

Corporation. Article 13 of the 1982 Constitution, “Title to Church Property,”

provides—in pertinent part to the corporations law question before us—that title to

the real property of all parishes, missions, and diocesan institutions “acquired for

the use of the Church in this Diocese” before or after the constitution’s adoption,

would be vested in the Corporation and “shall be held subject to control of the

Church in the Episcopal Diocese of Fort Worth acting by and through” the

Corporation. The Corporation, in turn, would hold real property acquired “for the

use of a particular parish or mission in trust for the use and benefit of such parish

or mission.” The Corporation could not convey, lease, or encumber such property

without the consent of the rector, wardens, and vestry of such parish or mission.

If a parish or mission were dissolved, the property held in trust by the Corporation

“shall revert to said Corporation for the use and benefit of the Diocese, as such.”

The same article in the 1989, 2006, and 2008 EDFW constitution and canons

reflects no change other than renumbering. The corresponding canon,

“Corporation of the Episcopal Diocese of Fort Worth,” established the

Corporation’s purposes and management of its affairs.

b. Application

(1) The Parties’ Arguments

The TEC parties argue that either the TEC parties control the Corporation

or Appellees are in breach. Specifically, they complain that the trial court failed to

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apply the portion of the 2006 corporate bylaws requiring each director to be a

member in good standing of a parish in the diocese when, by December 5, 2008

(or February 2009 at the latest), Appellees held no role in the diocese, making

them “disqualified.” They refer us to Byerly v. Camey, 161 S.W.2d 1105, 1111

(Tex. Civ. App.—Fort Worth 1942, writ ref’d w.o.m.), 107 to support this proposition.

They further argue that the Corporation is bound by its fiduciary duties as a trustee

to EDFW and its congregations so, if we find that Appellees legitimately control the

Corporation, then the Corporation should be removed as trustee, citing Ditta v.

Conte, 298 S.W.3d 187, 192 (Tex. 2009). 108

Appellees respond that the articles and bylaws provide for trustees to be

elected one per year at EDFW’s annual convention and identify their qualifications.

107
In Byerly, we observed that the absence of a corporation’s directors was
insufficient to dissolve the corporation or show that it had ceased to exist. 161
S.W.2d at 1111 (“[N]o court would declare the corporation out of existence simply
because it found itself without directors.”). Instead, under general principles of
corporation law, the stockholders either would have the inherent power to elect
new directors or a court could bring about the selection of new directors “as may
be done in certain cases where a trust estate finds itself without a trustee.” Id. The
appeal was brought from a dismissal, though, and the observations about
corporate law had no bearing on the case’s ultimate affirmance. Id. at 1106–11.
A treatise has indicated that our 1942 observation was a reflection of the common
law for when a corporation’s charter or bylaws made no provision for filling a board
vacancy in the event of death below the minimum number prescribed by the
charter. See 2 Fletcher Cyc. Corp. § 286. By whom directors and officers are to
be nominated, elected or appointed—In case of vacancies on the board of
directors (Sept. 2017).
108
In Ditta, the supreme court held that no statutory limitations period
restricts a court’s discretion to remove a trustee. 298 S.W.3d at 188, 191
(observing that a removal decision turns on the special status of the trustee as a
fiduciary and the ongoing relationship between trustee and beneficiary, not on any

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They further respond that courts cannot just remove trustees for good-faith

disagreements about trust management. To support these arguments, they refer

us to Hill v. Boully, No. 11-08-00289-CV, 2010 WL 2477868, at *4 (Tex. App.—

Eastland June 17, 2010, no pet.) (mem. op.), 109 Kappus v. Kappus, 284 S.W.3d

particular or discrete act of the trustee). Trustee removal actions are sometimes
premised on the trustee’s prior behavior but exist to prevent the trustee from
engaging in further behavior that could potentially harm the trust. Id. at 192. As
long as potential harm to the trust remains, an action to remove the trustee should
be allowed to proceed. Id. A trustee may be removed by a court under property
code section 113.082 for various reasons. Tex. Prop. Code Ann. § 113.082 (listing
as grounds material violation or attempted violation of the terms of the trust
resulting in a material financial loss, incapacitation or insolvency of the trustee,
failure of the trustee to make an accounting required by law or the trust’s terms,
and, broadly, “other cause for removal”).
109
Hill involved the construction and application of the bylaws of Sportsman’s
World Ranch Owners’ Association, Inc., a Texas nonprofit corporation created in
connection with a real estate development, and the declaration of covenants,
conditions, and restrictions associated with the development, which provided that
record property owners were members of the corporation, with one vote per acre
owned. 2010 WL 2477686, at *1–2. The bylaws provided for a board of three
trustees and that any trustee could be removed, with or without cause, by a
majority vote of the corporation’s membership; if a trustee died, resigned, or was
removed, his successor would be selected by the two remaining board members
to serve out his predecessor’s unexpired term. Id. at *2. The corporation’s
members sought to remove two of the three trustees and asked the remaining
trustee to appoint two new ones; he did so. Id. at *3. The court held that this
complied with the bylaws, which logically must have envisioned “member” as either
singular or plural, in anticipation of two trustees resigning or dying at the same
time. Id. at *6.

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831, 837 (Tex. 2009), 110 section 22.212 of the business organizations code, 111 and

section 112.054 of the property code. 112

110
In Kappus, the court addressed an alleged conflict of interest between the
independent executor of an estate and a good-faith dispute over his percentage
ownership of estate assets. 284 S.W.3d at 833. The court held that “conflict of
interest” was not a ground listed in the probate code for removing an executor and
that it would not engraft one onto the statute; there was no evidence to support the
executor’s removal under the statutory grounds (such as dishonesty or
misappropriation, gross misconduct or gross mismanagement, or legal incapacity).
Id. at 833, 836–38 (observing that a potential conflict does not equal actual
misconduct or make one mentally or physically impaired to the extent that personal
decision-making is impossible). The court noted that the fiduciary duties owed by
both an executor and a trustee are similar but that removal of a trustee under
property code section 113.082 gives the trial court more leeway. Id. at 838 (holding
that the trial court did not abuse its discretion by not removing executor as trustee
of testamentary trust when, viewing the same conduct, it was not error to keep him
as independent executor).
111
Business organizations code section 22.212, “Vacancy,” does not
address what happens if there are no qualified directors left on the board to fill a
vacancy. See Tex. Bus. Orgs. Code Ann. § 22.212(a). Apparently, neither the
parties nor our legislature has considered what might happen if a disaster were to
wipe out an entire corporate board.
112
Property code section 112.054, “Judicial Modification, Reformation, or
Termination of Trusts,” states in subsection (a) that on the petition of a trustee or
a beneficiary, the court may order, among other things, that the trustee be
changed. Tex. Prop. Code Ann. § 112.054(a). Subsection (b) states that the court
has the discretion to order a modification, termination, or reformation of the trust
“in the manner that conforms as nearly as possible” to the settlor’s probable intent.
Id. § 112.054(b).

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 (2) Corporation’s Owner

There is no question that the Corporation became a nonprofit corporation

under Texas law in 1983 and that its board was allowed to amend its bylaws and

articles. As pointed out by the supreme court in Masterson,

Absent specific, lawful provisions in a corporation’s articles of
incorporation or bylaws otherwise, whether and how a corporation’s
directors or those entitled to control its affairs can change its articles
of incorporation and bylaws are secular, not ecclesiastical,
matters. . . . The current statutory scheme changes the default rule
on who is authorized to amend the bylaws, but under neither the
former nor the current statute is an external entity empowered to
amend them absent specific, lawful provision in the corporate
documents.

422 S.W.3d at 609–10 (emphasis added) (referencing revised civil statutes article

1396-2.09 and business organizations code section 22.102).

According to the supreme court in Masterson, if nothing in the corporate

documents requires amendments to be subject to approval of TEC, and no Texas

law precludes such a corporation from amending its articles and bylaws to exclude

references to TEC, then there is no requirement under Texas corporations law to

otherwise subject the Corporation to TEC’s attempted interference. See id. at 613

(“To the contrary, the articles of incorporation and bylaws specified that qualified

parish members were entitled to elect the vestry and amend the bylaws”). As

nothing in the Corporation’s documents provides for TEC’s approval and nothing

in our law precludes the amendments to exclude references to TEC, TEC lacks

standing for a claim as to the Corporation, and to the extent the trial court granted

summary judgment on this basis, it did not err.

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 Further, according to the amended bylaws, the board of directors identifies

the “Bishop” for the Corporation’s purposes. Although this might otherwise be

considered an “ecclesiastical” determination, because the bylaws treat the

identification of the “Bishop” as merely the identification of the Corporation’s

chairman of the board, we cannot say that a title alone, under the circumstances

presented in the bylaws here, requires “consideration of doctrinal matters,” i.e.,

“the ritual and liturgy of worship or the tenets of faith,” see Jones, 443 U.S. at 602,

99 S. Ct. at 3025, particularly as the bylaws provide the methodology for the

Corporation’s board to identify the “Bishop” for the Corporation’s purposes.

However, the bylaws were amended on August 15, 2006, when there was

only one “body now known as the Episcopal Diocese of Fort Worth,” from which

lay and clergy members of the board were drawn and the bishop identified, and

that body was affiliated with TEC. [Emphasis added.] Over two years later, on

November 15, 2008, Appellees voted to leave TEC. The schism gave rise to two

distinct entities: one recognized by TEC as the Episcopal Diocese of Fort Worth

and one self-identified by Appellees as such. The bylaws and articles do not

provide a description of the characteristics of the diocese self-identified by

Appellees, but they do require that elected trustees be either lay persons in good

standing of a parish or mission, or canonically resident, in the entity identified by

the Corporation’s board as “the body now known as the Episcopal Diocese of Fort

Worth.” [Emphasis added.] As set out above, it is within TEC’s province to identify

its diocese in the geographic area identified as Fort Worth and what it takes to be

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a member in good standing or canonically resident therein. Accordingly, on

November 15, 2008, when Appellees voted to disaffiliate, it was TEC’s prerogative

to determine whether the board members of the diocese formerly associated with

TEC had become disqualified under the Corporation’s bylaws.

We conclude that the TEC-affiliated EDFW controls appointment to the

Corporation’s board and therefore that the TEC parties identified within the TEC-

affiliated EDFW have standing for these related complaints. We sustain the TEC

parties’ subissue 1(h).

4. Remaining Arguments: Constructive Trust, Estoppel

Paralleling the complaints in their live pleading, the TEC parties refer us to

TEC canon I.17.8, “Fiduciary responsibility,” which refers to a TEC officer’s duty to

“well and faithfully” perform the duties of that office in the Church and to a lay

person’s responsibility to be a communicant in good standing. They further refer

us to the “Declaration of Conformity” that Bishop Iker and “every dissident cleric”

signed, refer us to prior statements by Bishop Iker and others in previous cases

involving dissidents that could be read to contradict Bishop Iker’s nouveau-

dissident position here, and complain that the trial court allowed Bishop Iker et al.

“to renege on their promises, break their commitments, and breach relationships

of trust and confidence as Church officers.”

The TEC parties base their constructive trust argument on the basis of a

fiduciary duty owed to them as the diocese and congregations that remained loyal

to TEC, asserting that Appellees “broke a century’s worth of oaths and

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commitments” when they left and took the TEC-affiliated property, resources, and

name. They rely on IRS disclosures and assertions in other lawsuits as a basis

for estoppel. Based on our resolution above, however, we need not address these

arguments with regard to any of the TEC parties except for TEC itself.

As to TEC, these arguments misplace the measuring stick and would require

us to delve into the mysteries of faith, when—on the face of the documents before

us—procedure, not position, at least with regard to the causes of action that have

not been severed out, determines the outcome of this portion of the case.

Specifically, this case does not turn on a breach of contract in the usual

transactional sense. Indeed, the TEC parties did not bring a claim for any such

breach of an actual contract. Instead, their causes of action were for

• “Breach of Express Trust,” based on, among other things,

• the November 13, 1982 subscription to TEC’s constitution and canons;

• the June 29, 1984 petition in the friendly lawsuit between the Diocese of
Dallas and EDFW; and

• “the associational benefits of affiliation,” described as consideration and
the basis of a contractual trust;

• “Constructive Trust – Conveyance,” based on the exchange of property for
accession as consideration;

• “Constructive Trust – Fiduciary Commitments,” based on a “confidential
relationship with [TEC] and its subordinate entities” and commitments on how
they would hold the property;

• “Estoppel,” which the TEC parties further clarify is actually “quasi-estoppel,”
based on some of the same actions above;

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• “Diocesan Trust” and “Congregation-level Trust,” based on the same express
and constructive trust arguments;

• “Promissory Estoppel,” based on “promises to [TEC] as a condition of” EDFW’s
formation, “receipt of disputed property,” and the same actions as relied upon
in their other claims;

• “Conversion,” by unlawfully retaining and claiming property—sacramental and
liturgical instruments and materials, bank and brokerage accounts, monies,
valuable chattels, personnel records, financial records, real property records
and deeds, and historical records—“in a way that departed from the conditions
under which it was received”;

• “Texas Business & [Commerce] Code § 16.29,” for using EDFW’s trade names
and trademarks without permission “and in a manner likely to dilute the
distinctive quality of the foregoing trade names and marks”;

• “Breach of Fiduciary Duty,” with regard to Appellees’ “constitutional and
canonical obligations to the Diocese, the Church, and the Episcopal Parishes
and Missions,” among other misfeasance;

• “Action to Quiet Title” with regard to the disputed property on a table attached
to their petition; and

• “Trespass to Try Title,” with regard to the same property in their quiet title
claim. 113

Of these, conversion, damages for breach of fiduciary duty, the action to quiet title

and for an accounting, and the claims under business and commerce code section

16.29 were severed out of the instant case and remain pending in the original

action, cause number 141-237105-09.

As to the claims not severed out, and as to the relief sought in the form of a

constructive trust, TEC relies on the idea of a confidential relationship that is more

113
They also sought declaratory and injunctive relief and an accounting.

175
intimate than any kind generally considered under our law outside of the divorce

context. Just as the dissolution of a long-term marriage involving allegations of

infidelity and abuse can result in a messy, unpleasant divorce for all involved,

likewise, the disassociation of a faction within a religious entity can be (and, as

here, has been) equally messy and unpleasant for everyone involved. Whether,

in a religious or personal sense, Bishop Iker and the rest are the perfidious oath-

breakers characterized by the TEC parties is not for us to determine because such

questions are inextricably intertwined with First Amendment implications. To the

extent TEC has rights outside of the ones brought by the other TEC parties, 114 we

have not found a legal or equitable basis under our neutral principles analysis and

the documents in the record before us for imposing a constructive or resulting trust.

See McConnell & Goodrich, 58 Ariz. L. Rev. at 354 (“Courts that have applied

114
Many of the assertions set out above pertain to ecclesiastical matters.
And much like the end of a fiduciary duty between marital partners at divorce, when
Bishop Iker et al. excised their faction from TEC, any fiduciary duty obligations to
TEC ended. See, e.g., In re Marriage of Notash, 118 S.W.3d 868, 872 (Tex.
App.—Texarkana 2003, no pet.) (“The fiduciary duty between husband and wife
terminates on divorce.”); Parker v. Parker, 897 S.W.2d 918, 924 (Tex. App.—Fort
Worth 1995, writ denied) (“While marriage may bring about a fiduciary relationship,
such a relationship terminates in a contested divorce when a husband and wife
each have independent attorneys and financial advisers.”), disapproved of on other
grounds by Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc.,
960 S.W.2d 41 (Tex. 1998) (op. on reh’g). Jane R. Parrott, a financial records
custodian, stated in an affidavit that all loans from TEC prior to the 2008
disaffiliation “were fully repaid before that date.” Parrott also attached a summary
of the financial contributions and receipts between EDFW and TEC showing that
EDFW had contributed more than $2 million to TEC during the years of affiliation.

176
ordinary principles of trust law have generally found that internal church rules and

relationships fail to create either a resulting trust or a constructive trust.”).

Accordingly, we overrule subissues 1(f) and (g) as they pertain to TEC; as

to the remaining TEC parties, based on our disposition of the associations,

corporations, and trust questions above, we need not reach them. See Tex. R.

App. P. 47.1.

IV. Conclusion

Based on all of the above, to the extent that TEC has standing, we sustain

its sole stand-alone issue with regard to its ecclesiastical determination of which

entity constitutes EDFW but overrule its portion of the TEC parties’ subissues (f),

(g), and (j) as they pertain to the issues in this appeal.

We sustain all of the TEC parties’ subissues (a), (b), (h), and (i). As to all of

the TEC parties except for TEC itself, we sustain in part subissues (c), (e), (j), and

(k) and do not reach subissue (d) or the remaining TEC parties’ subissues (f) and

(g). We thereby hold as follows in response to the questions directed on remand

by the Supreme Court of Texas:

(1) Appellees’ actions, as corporate trustees, were invalid under Texas law

after disaffiliation in 2008.

(2) Under Texas Corporations Law, the articles of incorporation and bylaws

at issue were amenable to amendment but the plain language used in

2006—“now known as”—prior to disaffiliation in 2008 means that the

TEC-affiliated EDFW controls appointment to the Corporation’s board.

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 (3) To the extent that the Dennis Canon could be construed as attempting to

create a trust, it did not impose one on EDFW’s property in favor of TEC.

(4) Equitable title to the property in the 1947 deed is held for the TEC-

affiliated EDFW; the Corporation holds legal and equitable title to the

property in the 1950 deed.

(5) Based on the above, all of the TEC parties except for TEC have standing

to bring the above claims that are not barred by ecclesiastical abstention,

and on remand, TEC may have standing with regard to some of the

severed claims.

Accordingly, we affirm in part and reverse in part the trial court’s judgment

and remand the case to the trial court for further proceedings not inconsistent with

this opinion.

/s/ Bonnie Sudderth

BONNIE SUDDERTH
CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL, J.

GABRIEL, J., concurs without opinion.

DELIVERED: April 5, 2018

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