Opinion issued May 24, 2016




                                   In The

                              Court of Appeals
                                  For The

                       First District of Texas
                         ————————————
                           NO. 01-15-00088-CV
                         ———————————
ROLAND MOUTON, JR. AND DELORIAN MORGAN JONES, Appellants
                                     V.
 CHRISTIAN FAITH MISSIONARY BAPTIST CHURCH, CLARENCE
  ANDREWS, MARVIN NIXON, WALTER ERVIN, COREY WILSON,
MARVIN RAUSAW, PRESTON COOK, AND CHRISTOPHER DOUGLAS,
                        Appellees


                 On Appeal from the 127th District Court
                          Harris County, Texas
                    Trial Court Case No. 2012-73452


                                 OPINION

     Appellants Roland Mouton, Jr. and Delorian Morgan Jones sued Christian

Faith Missionary Baptist Church, its pastor, Corey Wilson, and other church

members, including Clarence Andrews, Marvin Nixon, Walter Ervin, Marvin
Rausaw, Preston Cook, and Christopher Douglas, after appellants were expelled

from church membership and Wilson was elected as the church’s pastor.

Appellants sought various declarations and money damages related to appellants’

expulsion and the church’s purported failures to follow its bylaws regarding

pastoral selection. The trial court granted the appellees’ plea to the jurisdiction

based upon the ecclesiastical abstention doctrine and dismissed appellants’ claims

for lack of subject-matter jurisdiction.      Because the trial court was without

jurisdiction to resolve the controversy, we affirm the trial court’s judgment.

                                     Background

The church’s incorporation

      Christian Faith Missionary Baptist Church was incorporated as a Texas non-

profit corporation on June 12, 1969. The articles of incorporation provide that

“[t]he management of the affairs of the Corporation shall be vested in the Official

Board without the authority of a majority of the membership present and voting at

any business meeting.”      On April 1, 1999, the church adopted its presently-

effective constitution and bylaws.

Pastoral dispute and expulsion of members

      In January 2012, Roland Mouton, Sr., the church’s pastor and appellant

Mouton’s father, died. The parties’ dispute centers around the church’s efforts to

fill the pastoral vacancy. With respect to a vacancy, the church’s bylaws provided:



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      In the event of a vacancy, a pulpit committee composed of Deacons
      and members (five (5) people on the committee) shall be appointed by
      the church to seek out a suitable Pastor and their recommendations
      will constitute a nomination though any member has the privilege of
      naming other nominations according to the policy established by the
      church. The committee shall bring to the consideration of the church
      on [sic] only one (1) minister at a time. Elections shall be by secret
      ballot; an affirmative vote of three-fourth (3/4) of those present being
      necessary for a choice. The Chairman of Deacons and Trustees shall
      have the right to meet with the Pulpit Committee at any time.

(emphasis added.)

      Jones, who then served as the church clerk and secretary, convened a

meeting to elect a pulpit committee on February 8, 2012. The pulpit committee

was comprised of Jones and other individuals and eventually selected Mouton as

their nominee for pastor.    However, other members of the church, including

Preston Cook, who was Chairman of the Deacons, and Marvin Rausaw, who was

Chairman of the Trustees, opposed the actions of the pulpit committee on the

grounds that its members were engaging in “negative behavior not befitting the

name of Christian and action not becoming of respectable church members.” In

September 2012, Cook and Rausaw filed an application on behalf of the church for

a temporary and permanent injunction to restrain Jones and “the alleged pulpit

committee from causing an illegal vote to appoint a Pastor, which is not in the will

of the members.” That action was non-suited on October 8, 2012.

      On October 13, 2012, a meeting was held at which the deacons, trustees, and

congregation voted to adopt a “resolution to restore order in the church.” The


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resolution, signed by Cook and Rausaw, found that Jones, Mouton, and others

involved with the pulpit committee “have engaged in a campaign of intimidation,

threats, assault, falsehoods, and manipulation.”     The resolution expelled from

church membership Jones, Mouton, and the others involved with the pulpit

committee on the grounds that they “have hurt the Church, decreased its

membership, distracted from its Christian mission, and continue to cause damage

to the Church.” Corey Wilson was elected and installed as the church’s new pastor

a month later, on November 17, 2012.

Conflicting claims to the church’s bank accounts

      On December 13, 2012, Whitney Bank, at which the church held two bank

accounts, filed a petition for interpleader, alleging that Mouton, Jones, and a third

person, David E. Daniels, had gone to a branch office on November 2, 2012, and

again on November 13, 2012, and attempted to have the current signatories on the

church’s accounts removed and themselves added. According to the petition,

Mouton, Jones, and Daniels presented a letter signed by Jones representing that she

was the church’s secretary and advising the bank that Mouton had been elected

pastor of the church. The petition further alleged that after these events, Wilson

and another man, Ervin, who was a current signatory on the church’s accounts,

notified the bank that Mouton and Jones were not authorized by the church to have

access to the accounts and were attempting to defraud the church because Mouton



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believed that the church’s funds were part of his inheritance from his deceased

father. The bank’s petition named appellants and appellees as defendants. The

bank was granted a non-suit after depositing the funds in the court’s registry.

The suit between the parties

       Appellees answered and cross-claimed against Mouton, Jones, and Daniels

for fraud and negligent misrepresentation related to their attempt to gain control of

the church’s bank accounts. Mouton and Jones counterclaimed for a declaration

that Mouton was the pastor of the church and for damages in the amount of the

interpleaded funds.     They later amended their petition to add requests for

declarations that the pulpit committee was properly constituted under the church’s

bylaws and that the appellees violated the church’s bylaws by:

          Interfering with the pulpit committee;

          Holding unauthorized meetings;

          Hiring attorneys to file a defective Certificate of Amendment with the
           Secretary of State and to sue for an injunction;1

          Expelling appellants from membership and changing the locks so that
           appellants could not access the church; and

          Selecting Wilson as pastor.

1
      Jones’s affidavit in support of the response to the combined motion for summary
      judgment and plea to the jurisdiction averred that on September 2, 2012, Preston
      Cook and attorney Bobbie Young “filed a Certificate of Amendment with the
      secretary of state’s office changing the officers of the Church. Such a filing in the
      past had only been made with the approval of the Pastor in Charge. Former
      Deacon Walter Ervin was named both Treasurer and Secretary.”

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      Appellees filed a plea to the jurisdiction in August 2013 and a motion to

dismiss appellants’ claims for lack of standing in October 2013. The trial court

denied both. Appellees petitioned for a writ of mandamus challenging the denial

of the motion to dismiss for lack of standing, which this court denied without

specifying its reasons. See In re Christian Faith Missionary Baptist Church, No.

01-14-00057-CV, 2014 WL 2538646, at *1 (Tex. App.—Houston [1st Dist.] June

5, 2014, orig. proceeding).

      In October 2014, appellees filed a combined motion for summary judgment

and plea to the jurisdiction. In the plea, appellees argued that the trial court lacked

jurisdiction over appellants’ claims under the ecclesiastical abstention doctrine

because adjudicating the claims would require the trial court to review the church’s

discipline of appellants and to impermissibly involve itself in the pastoral selection

process. After a hearing, the trial court granted the plea and dismissed appellants’

claims for lack of subject-matter jurisdiction. Appellees non-suited their claims

and appellants appealed.

                              Plea to the Jurisdiction

      In their first two issues, appellants argue that the trial court improperly

concluded that the ecclesiastical abstention doctrine applied and thus erred in

granting the church’s plea to the jurisdiction.




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A.    Standard of Review

      A plea to the jurisdiction challenges the trial court’s subject-matter

jurisdiction to hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied). The existence of subject-matter

jurisdiction is a question of law that we review de novo. State Dep’t of Highways

& Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333 S.W.3d

at 681.

      When a plea to the jurisdiction “challenges the existence of jurisdictional

facts, we consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised, even where those facts may implicate the

merits of the cause of action.” City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex.

2009) (internal quotation omitted) (quoting Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 227 (Tex. 2004)). The plea to the jurisdiction standard

mirrors that of a traditional motion for summary judgment. Ross v. Linebarger,

Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736, 744 (Tex. App.—Houston [1st

Dist.] 2010, no pet.). When reviewing the evidence, we must take as true all

evidence in favor of the nonmovant and “indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.”       Kirwan, 298 S.W.3d at 622

(quoting Miranda, 133 S.W.3d at 228). If the evidence creates a fact question



                                        7
regarding jurisdiction, the trial court cannot grant the plea to the jurisdiction, and

the fact issue will be resolved by the fact finder; however, if the relevant evidence

is undisputed or fails to raise a fact question on the jurisdictional issue, the trial

court rules on the plea as a matter of law. Miranda, 133 S.W.3d at 227–28; Kamel,

333 S.W.3d at 681.

B.    Ecclesiastical Abstention Doctrine

      “The Free Exercise clause of the First Amendment to the United States

Constitution precludes civil courts from delving into matters focused on

‘theological controversy, church discipline, ecclesiastical government, or the

conformity of the members of a church to the standard of morals required of

them.’” Thiagarajan v. Tadepalli, 430 S.W.3d 589, 594 (Tex. App.—Houston

[14th Dist.] 2014, pet. denied) (quoting Serbian E. Orthodox Diocese v.

Milivojevich, 426 U.S. 696, 713–14, 96 S. Ct. 2372, 2382 (1976)). “The First

Amendment is applicable to the states through the Fourteenth Amendment.”

Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594, 601 (Tex. 2013) (citing

Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903 (1940)).

       “Determining the reach of subject matter jurisdiction in disputes involving

religious   organizations   requires    consideration    of   competing    demands.”

Thiagarajan, 430 S.W.3d at 594.        “Courts do not have jurisdiction to decide

questions of an ecclesiastical or inherently religious nature, so as to those questions



                                          8
they must defer to decisions of appropriate ecclesiastical decision makers.”

Masterson, 422 S.W.3d at 605–06. “But Texas courts are bound to exercise

jurisdiction vested in them by the Texas Constitution and cannot delegate their

judicial prerogative where jurisdiction exists.” Id. at 606 (courts must “fulfill their

constitutional obligation to exercise jurisdiction where it exists, yet refrain from

exercising jurisdiction where it does not exist”); see also id. at 596 (Texas courts

have a “constitutional duty to decide disputes within their jurisdiction while still

respecting limitations the First Amendment places on that jurisdiction”).

      “Properly exercising jurisdiction requires courts to apply neutral principles

of law to non-ecclesiastical issues involving religious entities in the same manner

as they apply those principles to other entities and issues.” Masterson, 422 S.W.3d

at 606. “Thus, courts are 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.” Id. “[T]he line between required judicial action

and forbidden judicial intrusion ‘will not always be distinct’ because many

disputes ‘require courts to analyze church documents and organizational structures

to some degree.’”     Thiagarajan, 430 S.W.3d at 595 (quoting Masterson, 422

S.W.3d at 606).    “[C]ourts must look to the substance and effect of a plaintiff’s

complaint to determine its ecclesiastical implication, not its emblemata.” Tran v.

Fiorenza, 934 S.W.2d 740, 743 (Tex. App.—Houston [1st Dist.] 1996, no writ)



                                          9
(citing Green v. United Pentecostal Church Int’l, 899 S.W.2d 28, 30 (Tex. App.—

Austin 1995, writ denied)); see also Williams v. Gleason, 26 S.W.3d 54, 59 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied) (“Whether this suit is ecclesiastical,

or concerns property rights, torts, or criminal conduct, is determined by first

examining the substance and effect of the [plaintiffs’] petition—without

considering what they use as claims—to determine its ecclesiastical implication.”).

C.    Analysis

      Appellants contend that their claims arise solely from the church’s failure to

abide by non-ecclesiastical terms of the church’s bylaws and, therefore, the trial

court had jurisdiction to adjudicate the case under neutral principles of law.

According to appellants, the questions they raise—including whether appellees

complied with church bylaws in electing Wilson as pastor and whether appellees

properly expelled appellants from church membership—are non-ecclesiastical

because they are governed by non-ecclesiastical provisions in the church’s

corporate documents. We conclude that the trial court correctly granted the plea to

the jurisdiction because appellants’ claims are inextricably intertwined with

inherently ecclesiastical issues.

      We find Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007), to be

particularly instructive. In that case, Penley sued Westbrook, her former pastor

and a licensed professional counselor, arguing that Westbrook improperly



                                        10
disclosed Penley’s confession of an extramarital affair in connection with the

church’s discipline of Penley. Id. at 391. Penley alleged that the confession was

elicited during counseling and argued that the trial court could apply neutral

principles to resolve her professional-negligence claim because Westbrook’s duty

of confidentiality was secular in nature. Id. at 399. The Texas Supreme Court

reasoned that even though Westbrook’s duty of confidentiality was secular in

nature, the allegedly improper disclosure could not “be isolated from the church-

disciplinary process in which it occurred, nor can Westbrook’s free-exercise

challenge be answered without examining what effect the imposition of damages

would have on the inherently religious function of church discipline.” Id. at 400.

The Court thus concluded that the ecclesiastical abstention doctrine applied

because, although Westbrook’s professional duty was secular in nature, it was

inextricably intertwined with inherently ecclesiastical matters. See id.

      Contrary to appellants’ argument, we conclude that Masterson 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. See Masterson, 422 S.W.3d at 608. In other

words, Masterson did not alter the long-recognized principle that civil courts must

not interfere with the free exercise of religion by adjudicating claims that are

intertwined with inherently ecclesiastical issues.     See, e.g., Thiagarajan, 430



                                         11
S.W.3d at 594. Accordingly, contrary to appellants’ contention, the mere fact that

a church’s corporate documents—here, its bylaws—prescribe a pastoral selection

process does not make cases involving a pastoral selection dispute categorically

reviewable by a civil court. Instead, whether neutral principles may be applied to a

claim turns on the substance of the issues it raises. Consequently, the fact that the

church’s bylaws in this case contain provisions governing the process for pastoral

selection does not compel the conclusion that a dispute over that process is

reviewable under Masterson.

      Here, as in Westbrook, appellants’ claims are inextricably intertwined with

the selection of the church’s new pastor (Wilson) and the church’s expulsion of

members (appellants)—two issues long recognized to be inherently ecclesiastical

and of prime importance to the exercise of religious liberty. Texas courts have

long recognized that courts “should not involve themselves in matters relating to

the hiring, firing, discipline, or administration of clergy.” Lacy v. Bassett, 132

S.W.3d 119, 123 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (first citing

McClure v. Salvation Army, 460 F.2d 553, 558 (5th Cir. 1972); then citing Dean v.

Alford, 994 S.W.2d 392, 395 (Tex. App.—Fort Worth 1999, no pet.)); see

Thiagarajan, 430 S.W.3d at 594 (Free Exercise clause of the First Amendment

precludes civil courts from delving into matters of ecclesiastical government)

(quoting Milivojevich, 426 U.S. at 713–14, 96 S. Ct. at 2382). This is because



                                         12
“[t]he relationships between an organized church and its ministers is its lifeblood”

and “[t]he minister is the primary agent by which a church seeks to fulfill its

purpose.” Dean, 994 S.W.2d at 395 (citing Tran, 934 S.W.2d at 743). Thus,

“[c]ourts may not attempt to right wrongs related to the hiring, firing, discipline, or

administration of clergy,” because “[w]hile such wrongs may exist and be severe,

and although the administration of the church may be inadequate to provide a

remedy, the preservation of the free exercise of religion is deemed so important a

principle it overshadows the inequities which may result from its liberal

application.” See id. Accordingly, “[m]atters concerning this relationship must be

recognized as of prime ecclesiastical concern.” Id.

      Likewise, discipline of church members, including expulsion, is an

“inherently religious function with which civil courts should not generally

interfere.” Westbrook, 231 S.W.3d at 399; see Thiagarajan, 430 S.W.3d at 594

(Free Exercise clause of the First Amendment precludes civil courts from delving

into matters of ecclesiastical government and church discipline) (quoting

Milivojevich, 426 U.S. at 713–14, 96 S. Ct. at 2382). “A church has a right to

control its membership without government interference, including interference by

the courts.” Retta v. Mekonen, 338 S.W.3d 72, 76 (Tex. App.—Dallas 2011, no

pet.) (church’s failure to follow bylaws on a matter of internal governance is a

matter of internal governance and ecclesiastical concerns, and courts may not



                                          13
interfere with that decision). Thus, “[c]ourts have no jurisdiction to revise or

question ordinary acts of church discipline and cannot decide who ought to be

members of the church, nor whether the excommunicated have been justly or

unjustly, regularly or irregularly cut off from the body of the church.” Westbrook,

231 S.W.3d at 399 (internal quotations omitted) (quoting Watson v. Jones, 80 U.S.

679, 727 (1871)). We do not read Masterson to alter these bedrock principles.

      Appellants rely on Chen v. Tseng, No. 01-02-01005-CV, 2004 WL 35989

(Tex. App.—Houston [1st Dist.], Jan. 8, 2004, no pet.) (mem. op.), to argue that

their claims relate only to non-religious issues and therefore may be adjudicated by

the trial court. They characterize the case as a narrow dispute about selection of a

corporate officer and compliance with bylaws. But comparing appellants’ claims

to those in Chen highlights important differences. The issue in dispute in Chen

was whether a church’s election of members to its board of directors had been

properly noticed. Id. at *6. Importantly, however, Chen involved neither the

selection of a church’s pastor nor the expulsion of members, and emphasized that

review was permissible only because it was confined to the limited issue of

selection of directors of the corporation. See id. Indeed, the appellate court noted

that if the trial court had been asked to adjudicate the issue of “who has the right to

minister and to keep the altar,” the trial court would have had “no jurisdiction to

make such a determination”.        Id.   The Chen court also noted that church



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membership issues were not implicated. See id. In contrast, the substance of

appellants’ claims in this case implicates both pastoral selection and church

discipline in the form of expulsion of members.

      Appellants’ reliance on Lacy v. Bassett, 132 S.W.3d 119 (Tex. App.—

Houston [14th Dist.] 2004, no pet.), is likewise inapposite. In that case, Lacy made

a written request to examine and copy financial records of a church in which he

was a member, but his request was denied. Id at 121. The church was a non-profit

corporation, and thereby subject to the Texas Non-Profit Corporation Act, under

which Lacy had the right to “examine and copy [the corporation’s] books . . . at the

member’s expense.” Id. at 124. The Fourteenth Court held that, because the Act

entitled Lacy to review the records and Lacy’s suit would not require the trial court

“to involve itself with any religious doctrine or principles,” the trial court had

jurisdiction to adjudicate Lacy’s suit for access to the records. Id. at 126. Notably,

Lacy did not involve either church discipline or the selection of a pastor.

Appellants’ claims in this case, in contrast, would require the trial court to trespass

on both.

      Appellants also contend that Anderson v. Truelove, 446 S.W.3d 87 (Tex.

App.—Houston [1st Dist.] 2014, no pet.), supports their argument that the

ecclesiastical abstention doctrine does not apply.           But Anderson merely

acknowledged what Masterson expressly stated:           “the line between required



                                          15
judicial action and forbidden judicial intrusion ‘will not always be distinct.’”

Thiagarajan, 430 S.W.3d at 595 (quoting Masterson, 422 S.W.3d at 606).

Anderson does not stand for the proposition that neutral principles may be applied

to resolve disputes that are intertwined with inherently ecclesiastical issues.

      In sum, although appellants characterize their claims as purely secular

because they rest on provisions of the church’s corporate documents, the trial court

could not adjudicate this case without interfering in inherently ecclesiastical

matters of pastoral selection and church discipline. See Tran, 934 S.W.2d at 743

(“[C]ourts must look to the substance and effect of a plaintiff’s complaint to

determine its ecclesiastical implication, not its emblemata.”). Therefore, we hold

that the trial court correctly concluded that it lacked subject-matter jurisdiction

over the case under the ecclesiastical abstention doctrine. See Westbrook, 231

S.W.3d at 400 (where application of neutral principles would impinge upon

inherently ecclesiastical issue of church discipline, ecclesiastical abstention

doctrine applied); Dean, 994 S.W.2d at 395–96 (in suit over pastor’s removal, only

proper action was for trial court to dismiss for lack of jurisdiction based upon

ecclesiastical abstention doctrine).     Accordingly, the trial court did not err in

granting the plea to the jurisdiction.

      We overrule appellants’ first and second issues.




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                                Collateral Estoppel

      In their third issue, appellants argue that collateral estoppel barred the trial

court from granting appellee’s plea to the jurisdiction because the trial court

previously had twice denied earlier-filed motions that were premised on similar

facts and arguments. In support of this issue, appellants rely on cases applying

collateral estoppel to previously-entered final judgments. But here, any previous

trial court rulings were merely interlocutory, and cannot support the application of

collateral estoppel. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc.,

962 S.W.2d 507, 519 (Tex. 1998) (application of collateral estoppel requires

showing of prior final judgment on the merits); BP Auto., L.P. v. RML Waxahachie

Dodge, L.L.C., 448 S.W.3d 562, 569 (Tex. App.—Houston [1st Dist.] 2014, no

pet.) (judgment must be final in order to have collateral estoppel effect).

Moreover, lack of “[s]ubject matter jurisdiction . . . can be raised at any time.” See

Rusk State Hosp. v. Black, 392 S.W.3d 88, 103 (Tex. 2012). Thus, we hold that

collateral estoppel did not bar the trial court from granting the church’s plea to the

jurisdiction.

      We overrule appellants’ third issue.

                                    Conclusion

      We affirm the judgment of the trial court.




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                                             Rebeca Huddle
                                             Justice

Panel consists of Justices Higley, Huddle, and Lloyd.




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