## IN THE SUPREME COURT O F TEX AS

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. 11-0332

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### R O B E R T 

### M A S T E R S O N 

### , M A R K 

### B R O W N 

### , G E O R G E 

### B U T L E R 

### , C H A R L E S 

### W E S T B R O O K 

### , R IC H E Y 

### O L IV E R 

### , C R A IG 

### P O R T E R 

### , S H A R O N 

### W E B E R 

### , J U N E 

### S M IT H 

### , R IT A 

### B A K E R 

### , S T E P H A N IE 

### P E D D Y 

### , B IL L IE 

### R U T H 

### H O D G E S 

### , D A L L A S 

### C H R IS T IA N A N D T H E 

### E P IS C O P A L 

### C H U R C H O F T H E 

### G O O D 

### S H E P H E R D 

### , P E T IT IO N E R S 

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v . 

### T H E 

### D IO C E S E O F 

### N O R T H W E S T 

### T E X A S 

### , T H E 

### R E V


### . C E L IA 

### E L L E R Y 

### , D O N 

### G R IF F IS A N D 

### M IC H A E L 

### R Y A N 

### , R E S P O N D E N T S

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E T H I R D D I S T R I C T O F T E X A S

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J U S T I C E L E H R M A N N , joined by C H I E F J U S T I C E J E F F E R S O N , dissenting.
Today the Court applies state law g overning corpor ations to bar summary judgme nt for TEC 1

on an ecc lesiastical matter over which the Court has no jurisdiction. Whil e I wholehea rtedly ag ree with the Court that churc h proper ty disputes should be resolved u n d er the neutra l-principles
approa ch approve d by the Supreme Court in Jones v. W olf , 4 43 U.S. 595 (1979), in my view, the
Court has misapplied those principles in this case
. I n deciding that the secul ar l aw go verning

co rp o ra t i o ns controls the outcome of this matter, the Court place s undue emphasis on the loca l
churc h’s incorpora

ted status. Although a corpor ation is a separ ate entity with authority to amend its

U n l e s s o t h e r w i s e n o t e d , a b b r e v i a t e d t e r m s s h a l l h a v e t h e m e a n i n g s p e c i f i e d i n t h e C o u r t ’ s o p i n i o n
. 1by laws and article s of incorpora tion, it cannot do so when such an action results in the circ umvention
of an ecc lesiastical decision m ad e b y a highe r authority within a hierarc hical church structure. I n this case , the Court deter mines that Good Shepherd’ s incorporation allows i t t o disreg ard TEC’s
g overning documents by withd rawing from TEC and taking church property with it—actions that
g o bey ond the parish’s authority

. All the while, Good Shepherd has soug ht, ag ree d to, and rec eived
the benef its of association with TEC. Be cause th e d ec i s i o n about whether a subordinate churc h entity can w ithdraw involves a ma tter of c hurch polity , which is clea rly an ecc lesiastical issue, we have no jur isdiction over the subjec t under the F irst Amendment of the U .S. Const itution.
Moreove r, eve n i f this dispute could be resolved by conducting a purely secula r analy sis,
summary judgme nt in favor of the Episcop al L eaders rema ins appropr iate. Considering all the
rele vant statutes and documents, I would hold that a trust on the churc h proper ty was cre ated in favor
of TEC and the Diocese , which beca me irrevoc able upon Go o d S h epher d’s vote to withdraw.
Alterna tively , I wo u l d hold that Good Shepherd was estopped from revoking the trust. Good Shepherd fre ely and eag erly chose to acc ept the use and b en ef i t of the proper

ty at issue, pay ing nothing for the privileg e. I t cannot now unilatera lly esca pe its part of the arr ang ement. Acc ording ly , I respe ctfully

dissent. I. Background
A. G ood Sh epherd Sough t the Benefit of T EC Structure
As the Court notes, TEC is structure d in three tiers, from t h e Ge n er al Convention (at the highe st level) to the reg ional diocese s (at the intermediate level) to the local cong reg ations, divided
into parishes, missions , and cong reg ations (at the lower level). See ___ S.W .3d at ___. I n turn, eac h

2subordinate Episcopal aff iliate must acc ede and be subject t o t h e Constit ution and Canons of the highe r entity or entities. See id. Good Shepherd expressed this ag ree ment to be bound by the highe r entities repe atedly

and consistently

until it s vote to withdraw in 2006.
When the orig inal members of Good Shepherd first applied to TEC to org anize a mission in 1965, the applican t s stated that they wer e “desirous of obtaining the service s of the Church, and

rea dy , acc ording to our sever al abilities, to sustain the same.” I n acc ordanc e with diocesa n Canon, the applicants further “promise[d] confor mity to [ TEC’s] Doctrine, Discipli ne, and Worship” and
“to the Constit ution and Canons of the Gene ral Convention and the Diocese of Northwe st Texas.”
I n the 1972 I nstrument of Donation decla ring the churc h building and g rounds fre e from debt or lien, Good Shepher d’s Vica

r and B ishop’s Commi ttee fur ther stated “ that the building a nd g rounds ar e

secur ed from the dang er of alienation, either in whole or in part, from those who profe ss and prac tice
the Doctrine , Discipline, and Worship of this Church.” Good Shepherd applied for and was g rante d parish status in 1974, rea ffirming in its petition that the signa tories there to wer e “c o nscientiously
attache d to the Doctrine , Discipline and Worship of the Protestant Episcopal Church in the United
States of Amer ica.” Upon being g rante d parish status, Good Shepherd incorporated in acc ordanc e with diocesa n Canon. The Articles of I ncorpor atio n p rovi ded that “[t] he corpor ation is org anized for relig ious
purposes in or der to pr ovide a location for relig ious w orship, education, a nd the further ance of the Christian relig ion.” The initial By laws, adopte d in J anuar

y 1975, state in Article I : The Church of the Good Shep h er d i s situated in San Ang elo, Tom Gre en County , Texas. I t is a constituent part of the Diocese of Northwe st Texas and of the Protestant Episcopal Church in the United States of Americ a. The Parish acc edes to,

3rec og nizes, and adopts the Gene ral Constit ution and Canons of that Church, and the

Constit ution a

nd Canons of the Diocese of Northwe st Te x as and a cknowledg es the authority of the same

. Be fore the under ly ing dispute a rose, Good Shephe rd ame nded its By laws twice (once in 1994 and once in 1998) , with no material c hang es made to Article I

. B. Chu rch P ropert y P laced in Trust
As d iscussed by the Court, in 1979 TEC amende d its Canons, adding Canon I .7.4 (often
ref err ed to as the “ Dennis Canon”) and I .7.5 for the pur pose of plac ing c hurch pr operty in trust:
Sec. 4. All rea l and persona l proper ty held by or for the benef

it of any Parish, Mission or Congr eg ation is held in trust for this Church and the Diocese there of in which such Parish, Missi o n o r C o n greg ation is located. The exis tence of this trust, howeve r, shall in no way limit the power and authority of the Parish, Mission or Congr eg ation oth er wi s e ex isting over such property so long as the par ticular Parish, Mission or Congrega t i o n remains a part of, and subject to, this Church and its Constit utions and Canons

. Sec. 5. The sever al Diocese s may , at their elec tion, further confirm the trust decla red under the fore g oing Section 4 by appropr iate action, b u t no such action shall be nece ssary for the existenc e and validity of the trust

. (Emphasis adde d).
I n 1982, afte r TEC enac ted the De nnis Canon, the Diocese convey ed the r eleva nt property
to Good Shepherd. As the Court notes, the deed itself contained no trust lang uag e or other limit ation

on the convey ance
. Finally , in 2006, Good Shepherd’ s members passed sever al resolutions by majority vote, with full knowledg e of the Dennis Canon to which Good Shepherd had ag ree d to be
bound. Pursuant t o t h ese resolutions, Good Shepherd voted to “withdra w[] from, end its membership in, and dissolve[] its union wit h” TEC and the Diocese . I t further voted to amend its

4By

laws to remove any ref

ere nce to TEC, as well as to revoke any trust place d on churc h proper ty for
the bene fit of TEC or the Dioc ese. II. Analysi s of Neutral-P rinciples App roach
I n Jones v. W

olf , the United States Supreme Court rec og nized as constitutional the neutra lprinciples approac h to resolving churc h proper ty disputes. 443 U.S. at 602. Whil e courts rema in prohibited under this approa ch “fr om resolving [such] disputes on the basis of relig ious doctrine or
prac tice,” they

may apply “objec tive, well-e stablished conce pts of trust and property law” so long

as it involves “no consideration of doctrinal matters.” Id. at 602–03. This approa ch, the Supreme
Court conclude d, “promises to fre e civil courts completely from entang lement in q u es t i o n s of relig ious doctrine, polity , and pra ctice.” Id. at 603. Fur ther,
the neut ra l-principles analy sis share s the peculiar g enius of private- law sy stems in g ener al—flexibil ity in order ing private rig hts and obliga tions to ref lect the intentions of the parties. Throug h appropr iate reve rsionary clause s and trust provisions, relig ious societies can s pecif y what is to happen to churc h proper ty in t h e ev en t of a particula

r conting ency , or what relig ious body will deter mine the owner ship in the event of a schism or doc trinal controve rsy
. Id. The Supreme Court c autioned, howeve r, that in e x amining any relig ious doc uments to disc ern the intent of the parties, “a civil court must take car e to [do so] in purely secula r terms.” Id. at 604. Thus, i f t h e i n terpre tation of such documents “would require the civil court to resolve a relig ious

controve rsy , then the court must defe r to the resolution of the doctrinal issue by the aut h o ri tative

ecc lesiastical body .” Id. The Supreme Court stressed that “the outcome of a churc h proper ty dispute
is not foreorda ined” unde r a ne utral-pr inciples approa ch. Id. at 606. I nstead, [a] t any time be fore the dispute erupts, the parties can ensure , if they so desire, tha t the fac tion loy al to the hiera rchic al churc h will reta in the churc h proper ty

. They can

5modify the deeds or the co rp o rate char ter to include a rig ht of reve rsion or trust in favor of the g ener al churc h. Alternatively, the constitution of the general church can be made to recite an expre ss 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 g ive eff ect to the result indicated by the p ar t i es , provided it is embodied in some leg ally cog nizable form.
Id. (empha sis added). Today , this Court adopts the neutra l-principles approa ch for resolution of disputes involving relig ious org anization s
. S ee

_ _ _ S.W .3d at ___. I fully support this adoption and ag ree that this
approa ch is the pref

era ble method of resolving such controve rsies. Howeve r, the neutra l-principles
approa ch only allows courts to be come involved in non- ecc lesiastical decisions; it does not confe r jurisdiction upon courts to decide matters over which they have no constitutional a uthority

. I n my view, the Court over steps this boundary and ig nores its constitutional mandate.
A. Im proper Re solution of E ccle siastical Issues
I n adopting the neutra l-principles approa ch, the Court rec og nizes that “diffe renc es betwee n

ecc lesiastical and non-ec clesiasti ca l i ssues will not alway s be distinct” and that “def err ing to decisions of ecc lesiastical bodies in matters rese rved to them by the First Amendment may , in some instances, eff

ective l y deter

mine the proper

ty rig hts in question.” Id. at ___. Unlike the Court,
howeve r, I

believe proper defe renc e with respe ct t o such m atters determines the pr operty rig hts at
issue in this case
. When deciding whether a matter invokes constitutional protec tion, I believe that
we should er

r on the side of

caution, upholding constitutional mandates when in doubt.
The Court divides the questions of Good Shepherd parish’s authority to withdraw from TEC
and Good Shepherd corporation’s au t h o ri t y t o withdraw by amending its by laws and article s of

6incorpora

tion. Id. at ___. I n my view, howeve r, the two inquiries are inext rica bly linked. The Court
g oes on to conclude that, beca use the parish at issue was incorporated and beca use there was no specific TEC or diocesa

n restric tion on the corpor ation’s authority to amend its by laws and article s

o f in c o r p o r a ti on, the validity of Good Shepherd’ s withdrawa l by amendment of those documents wa s
not an ec clesiastica l question. See id. I am unconvinced t hat the incor porate d status of the par ish

remove s the issue from the rea lm of churc h polity

. I f Bisho p Oh l ’s d et er mination that the parish
could not withdraw from TEC is a binding ecc lesiastical decision, it does not cea se to be so beca use 2
of the corpor ate form taken by the parish. Such a deter mination pe rmits civil courts to conduct an end-r un around the First Amendment’s prohibition ag ainst inquiry into and resolution of re ligious
issues by eff

ectively allowing the lower churc h entity ’s unilatera l deci s i on to trump the highe r entity ’s authority

over ma tters of c hurch polity

. Notably , the Court rec og nizes that “wha t happens to the rela tionship between a l o cal
cong reg ation that is part of a hiera rchic al religious orga

nization and the higher

org anization when
members of the local c ong reg ation vote to disassociate is an e ccle siastical matter ove r which c ivil

courts g ener all y do not have jurisdiction.” Id. at ___ (citing Serbian E. Orthodox Diocese v. Milivojevic h , 426 U.S. 696, 713–14 (1976))

. “B ut what happe ns to the proper ty is not,” the Court

co ntinues, “unless the cong reg ation’s aff airs have been order ed so that ecc lesiastical decis i o n s eff ectively deter

mine the proper

ty issue.” Id. I t follows that Bishop Ohl’s deter mination reg arding
the parish’s authority (o r, m o re ac cura tely , lack of authority ) to withdraw from TEC is a binding

T h i s d e t e r m i n a t i o n i s u n r e l a t e d t o t h e u n d i s p u t e d r i g h t o f t h e i n d i v i d u a l m e m b e r s o f a n y r e l i g i o u s o r g a n i z a t i o n 2 t o w i t h d r a w t h e i r a f

f i l i a t i o n s h o u l d t h e y c h o o s e t o d o s o
. 7ecc lesiastical dec ision, irrespec tive of the corpora te form taken by the par ish. I n turn, since Good Shepherd did not validly

withdraw f

rom TEC, Good Shepher d rema ined a constituent there of and
conseque ntly

rema ined subject to TEC’s and the Diocese ’s Constitut ions and Canons.
There appea

rs to be no dispute that, as a TEC parish, Good Shepherd co u l d n o t p i ck and
choose those portions of the g overning documents by which it wished to be bound. And the Dennis
Cannon and its diocesa

n counter part expressly state that the churc h proper ty is held in trust for TEC
and the Diocese

. Thus, if Good Shepherd had no authority to withdraw, it had no authority to revoke
its adher ence to the Canons or to revoke the trust place d on the proper ty by virtue there of. Moreove r, the Canons condition Good Shepherd’ s authority over the churc h proper ty on its “re main[i ng ] a part of, and subject to, this Church and its Constit utions and Canons.” By purporting to withdraw from TEC, then, Good Shepherd took the very action that would strip it of its rig hts in the proper ty

. Good Shepherd may not avoid the conseque nces of its actio n s

— consequence s to which it had fre ely
ag ree d—simply

by voting to no long er be subject to those conse quence s.

B. App lication of

Secular Law
1. Intent of Par ties to C reat e Trust
Even i f t his dispute could be resolved in a purely secula r m anner and without interfe renc e with TEC’s ecc lesiastical deter minat i o n s, I would still hold that the Episcopal L eade rs met their
summary judgme nt burden. The Anglica n L eade rs ar g ue that no valid trust ex ists on the property
and that, to the extent one did e x ist, it was revoke d upon Good Shepherd’ s 2006 amendment of its By laws. I disag ree
.

8Under the Texas Trust Code, “[a] trust is cre ated only if the settlor manifests an intention to

cre ate a trust.” T E X
. P R O P
. C O D E § 112.002. Fur ther, the intent to cre ate a trust must be expressed
in w riting. Id. § 112.004. As discussed above , neither the deed c onvey ing the proper ty at issue to Good S hepher d nor Good S hepher d’s Article s of I ncorpor ation and B y laws re fer ence the creation
of a trust. Courts in other states with similar trust sta tutes have strug g led to de termine the issue of
whether the Denn i s C an o n, or simil arly worde d provisions in the g overning documents of other
hiera rchic al churc hes, cre ates a trust under such circ umstances. S ee Jo n es , 443 U.S. at 606 (endor sing the means utiliz ed by TEC to cre ate a trust by noting that, as an alterna tive means of ensuring rete ntion of t he property by the hi g her entity , “the constitut ion of t he ge n eral churc h can be made to rec ite an express trust in favor of the de nominational churc h”).
I n Pr es b yt er y of Greater Atlanta, Inc. v. Timberridge Presbyte rian Church, Inc. ( Timberridge ), the Geor g ia Supreme Court held that a local churc h (Timberr idge ) aff iliated with the
hiera rchic al P resby

terian Church (U.S.A.) (PCUS A) held proper ty in trust for the national church
based in part on an expli cit trust provision in PCUS A’s go v er n i n g Book of Orde r, as well as on lang uag e in the l ocal church’ s char ter documents. 719 S.E.2d 446 (Ga

. 2011). Following a 1982
amendment to the Book of Orde r by PCUS A’ s prede cessor to add the proper ty trust provision, 3 Timberridg e “func tioned as a reg ular member of the national churc h” until a proper ty dispute arose in 2007, leading to Timberridg e’s withdrawa l from PCUS A. Id. at 449–50. I n apply ing the neutra l principles doctr ine to the dispute, the cour t aptly noted:

T h e n o r t h e r n a n d s o u t h e r n b r a n c h e s o f t h e P r e s b y t e r i a n C h u r c h f o r m a l l y r e u n i t e d a s P C U S A i n 1 9 8 3 , w i t h 3 t h e B o o k o f O r d e r r e t a i n i n g t h e t r u s t p r o v i s i o n
. 7 1 9 S

. E

. 2 d a t 4 4 8

. 9We revie w all of these materia ls [deeds, state statutes, and g overning documents of

the l ocal and national chur ches], keeping in mind that the outcome of t hese church proper ty disputes usually turns on the specific fac ts prese nted in the rec ord, that the neutra l princi p le fac tors are interre lated, and that our ultimate g oal is to deter mine “the intentions o f t h e parties” at the local and national level reg arding benef icial owner ship of the proper

ty at issue as expressed “bef ore the dispute erupt[ed]” in a “leg ally cog nizable form.”
Id. at 450 (quoting Jones , 443 U.S. at 603). The court found persua sive that Timberridg e’s Articles
of I ncorpor ation “proc laimed [i ts] alleg iance to t h e P C US A Book of Orde r” containing the trust provision and noted that “at no time during the more tha n two deca des bef

ore this dispute erupte d and the eight y ear s after

it was dee ded the pr operty at issue did [Tim berr idge ] even seek to amend
its Articles to demonstrate a ny differ ent intent.” Id. at 455. By contra st, in From the Heart Church Ministries, Inc. v. Africa n Me t h odist Episcopal
Z i o nist Church , the Maryland Court of Appea ls held the evidenc e established that the l o ca l incorpora ted churc h “did not, in fac t, consent to the trust provisions” in the national churc h’s Book
of Discipli n e. 8 0 3 A.2d 548, 569 (Md. 2002). Key to the court’s holding was the local churc h’s deletion, many y ear s befor e the proper ty dispute arose , of a require ment in its char ter documents to
act in acc ordanc e with the Book of Discipline. The court also noted the churc h’s addition of a provision in those documents addre ssing the dispositi on of churc h proper ty upon dissoluti on of the
corpor ation, as well as the absenc e of trust lang uag e in the deed. This omission was signific ant, the

cou rt n o t ed , beca

use the Book of Discipline require d such lang uag e, but the national churc h had

never theless ac quiesce d in the “dee ding ir reg ularity .” Id.
L ike t he local churc h in Timberridge , Good Shepher d’s cor porate documents “proclaimed alleg iance ” to TEC’s and the Diocese ’s Constit utions and Canons. 719 S.E.2d at 455. The proper ty

1 0trust provision was added to the TEC Canons in 1979, befor e the churc h proper ty was convey ed to Good S hepher d. Fur

ther, li ke the churc h in Timberridge , and notably in contra st to t h e ch u rc h i n From the Heart Church Ministries , “at no time during the more than two deca des befor e this dispute erupte d and the [t wenty -four ] y ear s afte r i t was deeded the proper ty at i s sue di d [Good Shepherd]

even seek to amend its [corporate documents] to demonstrate any differ ent intent.” Id. I n fac t, Good Shepherd amende d its By laws twice befor e the underly ing dispute arose , leaving untouched the provision ag ree ing to be bound by the TEC and Diocesa n Canons. Moreove r, the absenc e of trust

4 lang uag e from the deed to the proper ty at issue is not a depar ture from the require ments in the
Canons and thus does not, in and of itself, raise suspicion about Good Shepherd’ s intent to hold the
proper ty in trust. See F

rom the He art Church Ministri es, Inc

. , 803 A.2d at 569.
The Court cites with approva l the Missouri Court of Appea ls’ opinio n i n He a r t land Presbyte ry v. Gashland Presbyte rian Church , 364 S.W .3d 575 (Mo. Ct. App. 2012), which further supports the conclusion that a trust w as imposed on the churc h proper ty in this c ase. I n Heartland Presbyte ry , the court held that a local churc h corpor ation’s Articles of Ag ree ment, which stated that
the local churc h was “conne cted with and ecc lesiastically subject to” PCUS A’s prede cessor , “[did]

not es t abli sh its ag ree ment to be bound by the proper ty provisions of the PCUS A’s Constit ution; instead, it sug g ests the opposite.” Id. at 585, 587. Noting that “[t] he ‘conne cted with’ lang uag e
. . . cannot alone establish PCUS A’s trust interest,” the court went on to examine the statement that the
l ocal churc h “would be ‘ ecc lesiastically subject to’ the denomination.” Id. at 586

. T h e l at t er

B i s h o p O h l a l s o t e s t i f

i e d b y a f f i d a v i t t h a t G o o d S h e p h e r d p a r t i c i p a t e d i n t h e a n n u a l D i o c e s e C o n v e n t i o n s e a c h 4 y e a r f r o m 1 9 6 6 t h r o u g h 2 0 0 6

. T h i s i n c l u d e s 1 9 8 4 , t h e y e a r t h e D i o c e s e a d d e d t h e p r o p e r t y t r u s t p r o v i s i o n t o i t s C a n o n s
. 1 1statement, the court conclude d, implied that the local churc h “wou ld not be subject to the

denomination’s authority in non -ec clesiastica l matters.” Id. The Articles also provided that title to
any proper

ty acquir ed “vests, without qualifica tion, in [t he local churc h] itself, in i ts corpor ate
capa city ,” and that such proper ty “ca n only be convey ed to others pursuant to specific authorization
of its membe rs
. . . and of its Boa rd of Trustee s.” Id. at 587. These provisions, the court held, lent
further cre dence to the conclusion that the l o ca l ch u rc h d id not consent to the PCUS A trust provision. Id.
I n this case , Good Shepherd’ s corpor ate documents contained the kind of lang uag e that was conspicuously absent from the Articles of Ag ree ment at issue in Heartland Presbyte ry . Prior to the split with TEC and the Diocese , Good Sh ep herd’ s By laws stated not only that the churc h “is a constituent part of the Diocese of Northwe st Texas and of the Protestant Episcopal Church in the
United S t ates of Americ a,” but also that it “ac cede s to, rec og nizes, and adopts the Gene ral
Constit ution and Canons of that Church, and the Constit ution and C an o n s of the Diocese of
Northwe st Texas and ack n o wl ed ges t he authority of the same.” This is consistent with Good 5 Shepherd’ s promise of “conf ormity to” TEC Doctrine when it orig inally applied for mission status and the decla

ration in its parish application that it was “consc ientiously attache d” to that Doctrine

. T h u s , u n li k e in H e a r tl a n d Pr esbyte ry , Good Shepherd’ s corpor ate documents const it u te a n “ e f f e c ti v e

T h e l o c a l c h u r c h ’ s B y l a w s i n H e a r t l a n d P r e s b y t e r y d i d s t a t e t h a t P C U S A ’ s C o n s t i t u t i o n w a s “ o b l i g a t o r y u p o n 5 i t a n d i t s m e m b e r s ” a n d t h a t t h e B y l a w s “ s h a l l b e c o n s t r u e d o n l y i n c o n f o r m i t y ” w i t h t h e C o n s t i t u t i o n
. 3 6 4 S

. W

. 3 d a t 5 8 7

. H o w e v e r , t h e c o u r t h e l d t h a t t h e s e p r o v i s i o n s c o n f l i c t e d w i t h t h e l o c a l c h u r c h ’ s A r t i c l e s o f A g r e e m e n t a n d t h a t , u n d e r s t a t e l a w , t h e A r t i c l e s c o n t r o l l e d

. I d

. H e r e , t h e r e i s n o c o n f l i c t b e t w e e n G o o d S h e p h e r d ’ s A r t i c l e s o f I n c o r p o r a t i o n a n d i t s B y l a w s ; t h a t i s , n o t h i n g i n t h e A r t i c l e s o f I n c o r p o r a t i o n i s n e g a t e d , o r e v e n a f f e c t e d , b y t h e s t a t e m e n t i n t h e B y l a w s t h a t G o o d S h e p h e r d a c c e d e d t o T E C ’ s a n d t h e D i o c e s e ’ s C o n s t i t u t i o n s a n d C a n o n s
. 1 2expression of [Good Shepherd’ s] intent to be bound by [TEC’s and the Diocese ’s Canons],” which

have inc luded the prope rty trust provisions since 1979 and 1984, re spectively

. Id. at 591. 6
I n sum, under a neutra l analy sis of the rele vant documents, I would hold that the Episcopal
L eade rs met their summary judgme nt burden with re spect to the c rea tion of a trust. I n light of the
proper ty trust provisions in TEC’s and the D io c e s e ’ s Ca n o ns, Good Shepherd’ s corpor ate documents
ag ree ing to be b o u n d by those Canons, Good Shepherd’ s periodic amendment of its corpor ate d o cu m en t s without altering its alleg iance to the Canons, and Good Shepherd’ s continued participa tion in Diocesa

n Conventions prior to the d i s p ute, the Episcopal L eade rs conclusively
established an expression of intent by Good Shepherd to hold its proper ty in trust for the benef

it of
TEC and the Dioc ese. 2. The Trust Is E xpressly Irre vocable The Court holds that, reg ardle ss of whethe r Go o d S h epherd ag ree d to hold the churc h
proper ty in trust, the trust was revoc able unde r Texas law. ___ S.W.3d at ___. I disag ree
. The Court corr ectly notes that, under Texas law, a trust is revoc able unless expressly made
irrevoc able. T E X
. P R O P
. C O D E § 112.051. Howeve r, “[n] o specific words of art are require d to

cre ate an irrevoc able trust” so long as the instrument “re flec t[ s] the trustor’s intent to make the trust irrevoc able.” Vela v. GRC Land Holdings, Ltd. , 383 S.W .3d 248, 250–51 (Tex. App.—San Antonio 2012, no pet.) (mem. op.) (citing McCauley v. Simmer , 336 S.W .2 d 8 7 2 , 881 (Tex. Civ. App.—Houston 1960, writ dism’d), and Austin Lake Estates Rec reation Club, Inc. v. Gilliam , 493

T h i s i s c o n s i s t e n t w i t h t h e T e x a s T r u s t C o d e , w h i c h p r o v i d e s f o r c r e a t i o n o f a t r u s t b y “ a p r o p e r t y o w n e r ’ s 6 d e c l a r a t i o n t h a t t h e o w n e r h o l d s t h e p r o p e r t y a s t r u s t e e f o r a n o t h e r p e r s o n
. ” T E X
. P R O P
. C O D E § 1 1 2

. 0 0 1 ( 1 )

. 1 3S.W .2d 343, 347 (Tex. Civ. App.—Austin 1973, writ ref’d n.r .e.)) . I would hold tha t the terms of

the proper

ty trust provision in the Dennis Canon, to which Good Shepherd ag ree d to b e b o und, expressly rende red the trust irrevoc able upon Good Shephe rd’s withdra wal fr om TEC.
As noted above, the proper ty trust pr ovision in TEC’s Canons (with a substantially simil ar provision in the diocesan Canons) states: All rea l and persona l proper ty held b y o r fo r t h e benef it of any Parish, Mission or Congr eg ation is held in tr ust f or this Churc h and the Diocese there of in w hich such Parish, Mission or Congr eg ation i s l o ca t ed. The exis tence of this trust, howeve r, shall in no way limit the power and authority of the Parish, Mission or Congr eg ation otherwise exi sting ov er s u ch property so long as the par ticular Parish, Mission or Congregation remains a p art of, and subject to, this Church and its Constit utions and Canons

. (E m p h as i s added)

. This provision clea rly limit s a parish’s authority over churc h proper ty b y requiring that the parish be “a part of, and subject to,” TEC. Thus, if a parish withdraws from TEC,
it nece ssarily loses such authority to the ex tent it is inconsistent wi t h h olding the proper ty in trust for TEC and the Diocese

. W h ile the Dennis Canon does not use the term “irre vocable ,” it

never theless ref

lects Good Shepherd’ s intent to make the trust irrevoc able upon its withdrawa l from
TEC and wa s thus sufficient to cre ate a n irrevoc able trust under

Texas law.
The Dennis C an o n ’s lang uag e distinguishes the proper ty trust provision here from the
national churc h’s trust provision at issue in From the Heart Church Mi n i stries , which did not addre ss the situation in which “a local churc h disaffiliates from the denomination.” 803 A.2d at 571.
Wit hout such lang uag e, the Maryland C o u rt of Appea ls declined to find that the trust was irrevoc able, c oncluding that “[c]onsent to hol ding pr operty in tr ust during the course of af filiation
d oes not automatically constitute consent to relinquishing that proper ty once the aff

i l i at i o n
1 4terminates.” Id. Her e, Good Shepherd did more than consent to holding the proper ty in trust during
the course of its aff

iliation with TEC; it also consente d to its aut h o ri ty over the proper ty being conting ent on that aff

iliation. As a result, ev en i f Go o d S h epher d had the authority to disaffiliate
from TEC and the Diocese by proper vote under i t s Ar t i cl es and By laws, I cannot ag ree with the
Court that Good Shepherd coul d re v o ke the trust and maintain control of the proper ty upon its
withdrawa l. See B ishop & Diocese of Colo. v. Mote , 716 P.2d 85, 108 (Colo. 1986) (holding that
a lo ca l church’s articles of i ncorpor ation and by laws t hat were sim ilar t o Good S hepher d’s, along
with the rele vant provisions of TEC’s Canons, “for eclose the possibili ty of the withd ra wal of
proper ty from the parish simply beca use a majority of the members of the parish decide to end their association with [TEC] ”).
The Supreme Court confirme d in Jones v. W olf that “bef ore the dispute erupts, the parties can

ensure , if they so desire, that t h e fa ct i o n loy al to the hiera rchic al churc h will reta in the churc h
proper ty .” 443 U.S. at 606. That is exactly what the parties did in this case
. Good Shepherd ag ree d

to hold the churc h proper

ty in trust for TEC and the Diocese , and any authority it otherwise had over the prope rty

terminated w hen it withdrew f rom TEC. 3. Good Shepherd Is E stopped f rom Revoking the Trust Alterna tively , I believe the Episcopal L eade rs preva il under the doctrine of quasi-estoppe l.
The Episcopal L eade rs did not formally plead quasi-estoppe l as an aff irmative defe nse, though they
did alleg e fac ts to support it. The summary judgme nt evidenc e establishes the applicability of the 7

T h e A n g l i c a n L e a d e r s c o u n t e r c l a i m e d f o r a d e c l a r a t o r y j u d g m e n t r e g a r d i n g o w n e r s h i p a n d p o s s e s s i o n o f t h e 7
c h u r c h p r o p e r t y . I n t h e i r F i r s t A m e n d e d P e t i t i o n , t h e E p i s c o p a l L e a d e r s a r g u e d t h a t t h e y “ r e l i e d o n t h e p r o m i s e s a n d s t a t e m e n t s ” o f G o o d S h e p h e r d i n “ p r o v i d [ i n g ] f i n a n c i a l s u p p o r t ” t h e r e t o
. 1 5doctrine and prec ludes Good Shepherd from claiming that it may revoke the trust in conjunction with

its withdrawa l from TEC. “Qua si-estoppel prec ludes a party from asser t i n g, t o another ’s
disadvanta ge, a ri ght inconsistent with a position previously taken. The doctrine applies when it
would be unconsciona

ble to allow a person to maintain a position inconsistent with one to which he acquie sced, or from which he acc epted a benef it.” Lopez v. Muñoz, Hock ema & Ree d, L.L.P. , 22
S.W .3d 857, 864 (Tex. 2000) (citation omitted).
Prior to the 2006 dispute, Good S heph er d: had promised confor mity to TEC Doctrine and

to TEC’s and the Diocese ’s Constit utions and Canons; had acc epted g rants as well as no-intere st and
low-intere st loans from TEC and the Diocese to assist in building the churc h; had decla red that the
churc h proper

ty was “sec ured from the dang er of alienation

. . . from those who profe ss and prac tice
the Doctrine , Discipline, and Worship of this [Epis copal] Church”; and had acc epted the convey ance of the proper

ty from the Dioce se af

ter the pr operty

trust provisions were a dded to TEC’s Canons. Having made these promises and acc epted these benef its, Good Shepherd may

not now contend it
is free to disreg ard the se positions because a majority of its members have voted to do so.
III. Conclusi on I n deny ing summary judgme nt, the Co urt oversteps its constitutional bounds to resolve

ecc lesiastical matters over which it has no authority

. Fur ther, the Court ignor es lang uag e in the
rele vant documents clar ify ing that Good Shepherd’ s authority over the churc h proper ty is conting ent
upon its aff

iliation with TEC and the Diocese

. Finally , Good Shepherd is barr ed from revoking the

trust on the proper

ty in conjunction with its withdrawa l from TEC. For t h es e re asons, I am compelled to re spectfully express my

dissent.

1 6_________________________________ Debr a H. L ehrma

nn J ustice

OP INION DELIVERED: Aug ust 30, 2013

1 7