Dissenting Opinion issued April 30, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00127-CV
                           ———————————
            IN RE ALIEF VIETNAMESE ALLIANCE CHURCH
                   AND PHAN PHUNG HUNG, Relators



            Original Proceeding on Petition for Writ of Mandamus


                           DISSENTING OPINION

      Mandamus is not a tool to be used lightly. Instead, it “is an extraordinary

remedy, reserved for manifest and urgent necessity, and will not issue unless

relator satisfies a heavy burden of establishing compelling circumstances.” Tilton

v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (orig. proceeding) (internal

quotations and citation omitted). The two opposing versions of events presented in

this defamation case make it a poor fit for mandamus relief. According to Paul
Nguyen, he did not have an extramarital affair, he was not subject to church

discipline, he decided to step back from his church leadership role for unrelated

reasons before his wife brought her concerns to Pastor Hung, and he remained a

church member. But, according to the church and its pastor, Paul Nguyen retreated

from church life as some form of self-imposed church discipline for having an

affair. Depending on which version an eventual factfinder found credible, Pastor

Hung was either spreading damaging untrue gossip or he was talking to the church

community about ecclesiastical matters beyond the reach of secular courts. On this

record, we cannot say. See Tex. Nat’l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex.

1986) (stating that “a court of appeals cannot make original findings of fact”);

Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744 (Tex. 1986)

(“Findings of fact are the exclusive province of the jury and/or trial court.”).

      Without a fact finding about whether Nguyen was in fact under church

discipline, we cannot determine whether this case is inextricably intertwined with

ecclesiastical matters or is instead a defamation case that happens to be located in a

religious community. Per the allegations, Pastor Hung offered salacious and

concerning information about Nguyen to others without mentioning church

discipline. Specifically, when fellow churchgoers inquired about Nguyen’s

absence, Pastor Hung told a church officer that Nguyen had committed adultery

with a parishioner and that, as a result, Nguyen was no longer a Deacon and no


                                           2
longer attended services. According to Nguyen, Pastor Hung also told a meeting of

pastors in Austin that Nguyen was no longer a member or elder of the Church.

There is no allegation that Pastor Hung mentioned church discipline either time.

      The fact question of whether Nguyen was under church discipline is not

something we can or should resolve on mandamus. See, e.g., Diocese of Galveston-

Houston v. Stone, 892 S.W.2d 169, 177–178 (Tex. App.—Houston [14th Dist.]

1994, orig. proceeding) (determining that a fact issue existed on whether

termination decision implicated religious concerns and holding that “[i]t is

precisely because this factual dispute exists that mandamus is improper.”). That

fact question is something that must be decided by the trial court. Accordingly, I

respectfully dissent.




                                                   Sarah Beth Landau
                                                   Justice


Panel consists of Justices Keyes, Higley, and Landau.

Justice Landau, dissenting.




                                         3
