### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00376- CV

Ke nneth Becker, Appellant

v. Carla Hahn Clardy, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 146 TH JUDICI AL DISTRICT NO. 230 ,807 -B , H ONO RAB LE RICK MO RRIS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Kenne th Be cker appea ls the trial court’s order sustaining ap p ellee Carla Hahn Clardy ’s plea to the j u ri s d i cti on. I n his petition, Be cker soug ht damag es based upon

common law claims of libel an d s l an d er ag ainst Clardy

. Clardy responde d in her plea that the trial court did not have subject matter jurisdiction over Be cker ’s claims beca use they fell within the

ecc lesiastical abstention doctrine (the “Doc trine”)

. Be cause we conclude that the Doctrine applies 1
to Be cker ’s claims, we aff irm the trial court’s order susta i n i n g t h e plea and dismiss ing Be cker ’s claims for la ck of subjec t matter jurisdiction.

BACK GR OUND During the rele vant ti m e p eriod, Be cker and Clardy wer e employ ed as relig ion

See W estbrook v. Penley , 231 S.W .3d 38 9 (T ex . 2007); In re Godwin , 293 S.W .3d 742 1 (Tex. App.—San Antonio 2009, orig . proce eding ).teac hers at St. Mary ’s School in Temple, Texas. The school is within the Diocese of Austin, Texas,

and part of the Cat h o lic Church. As teac hers of the school, both Be cker and Clardy wer e subject
to the “Dioce se of Austin Policies on Ethics and I nteg rity in Ministry ” (the “Policy ”). The Policy 2 prohibits churc h personne l “fr om eng ag ing in

. . . immoral conduct” which is define d as “[c]onduct that is contra

ry to the discipline and teac hings of the Catholic Church and whi ch m ay result in scanda l to the faithf

u l o r h ar m t o the m inistry of t he C atholic C hurch.” The P olicy also prohibits churc h personne l from “har m[ ing] the reputa tion of others by

. . . disclosing without leg itimate cause the faults or failing s of o t h er s t o persons who have no cause to know them [or by ] making false alleg ations ag ainst another.”

The Policy sets forth a code of ethics for churc h personne l and a p roce dure for
repor ting, investiga ting, and disciplining churc h personne l for misconduct. The code provides that churc h personne l “shall exhibi t the highe st Christian ethical standards and persona l integ rity ,” “shall conduct themse lves in a manner t hat i s consistent with the di scipline, norms, and teaching s of the Catholic Church,” “shall pro v id e a profe ssional work environment that is fre e from hara ssment,” and “shall shar e conc erns about suspicious or i nappropr iate behavior wit h their pastor, the ir principal, the cha ncellor or Bishop Gr eg ory

Ay mond.” Consist ent with the Policy , Be cker sent a written statement in F ebrua ry 2008 to the principal of the school, copy ing the pastor and the superintende nt of the Diocese of Austin. Be cker

s tated that two students “informe d” him that Clardy made “adver se or neg ative comme n t s ” ab o u t him in front of students in her relig ion class. She alleg edly told her students that Be cker had written

The Policy define s “chur ch personne l” to include “[a]ll paid personne l whether employ ed 2 in are as of minist ry or other kinds of service s by the Diocese , its parishes, schools or other ag encie s.” 2“hate mail,” cause d Clardy ’s son to “run awa y ” from Be cker ’s class, and “something about [Becke r] following (male) students into the (s ch o o l) restroom.” He further stated that he “conside r[ed]
Mrs. Clardy ’s actions and spoken words to be a violation of the Canon L aw and a profe ssional code of ethics,” “malicious and not in keeping with the teac hings of J esus Christ, in loving thy neig hbor

as thy self, the prec epts of the Catholic faith and Canon L aw (Canon 802 § 2),” and “def amation of ch ar acter and hara ssment.” He then stated his “[e]x pecta tions” that the pastor and principal “immediately , thoroug hly , and quickly ” investiga te and, if the alleg ations wer e true, “immediately ” terminate Clardy and require C l ar d y to apolog ize. He soug ht an oral apolog y in the prese nce of the eig hth g rade class, the principal, the pastor, and Be cker and a wr i t ten apolog y to Be cker “and the fac ulty and staff of St. Mary ’s school.” The principal and pastor conducte d an investiga tion, but Clardy resig ned and the investiga tion stopped. 3
Be cker then filed this suit ag ainst Clardy in J uly 2008. I n his petition, Be cker alleg ed that Clardy “made numerous untrue and defa matory statements about P l ai n t i ff, to students, administrators, fac ul t y an d/or pare nts.” The alleg ed slanderous statements wer e: (i) Be cker “had something to do with [a teac her] being fired,” (ii) Be cker “has a ‘hit list’ of teac hers’ names that he
wants to targ et,” (iii) Be cker “has sent Clardy ‘hate mail,’” (iv) Be cker “ca used Clardy ’s son to run

awa y from school,” and (v) Be cker “wa s the rea son Clardy was fired from St. Mary ’s School.” As to his li bel claim, B ecke r alleg ed that Clardy “communica ted . . . defamatory rema rks i n writing .” The alleg ed published s tatements, including statements to Be cker ’s “super iors,” wer e that: (i) Be cker “humiliated a 6th g rade student during Stations,” (ii) “Clard y h ad s erious conce rns

I n his d ep o s i t i o n , Becke r testified that he attended meeting s with the principal and the 3 pastor conce rning his alleg ations ag ainst Clardy but that “eve ry thing came to a halt once Mrs. Clardy resig ned.” 3reg arding her son’s emotional and spiritual well-be ing” in Be cker ’s class, and (iii) Be ck er was

“har assing ” Clardy

and “c rea ted a hostile work e nvironment.” Clardy filed a plea to the jurisdiction contending that the trial c o u r t la c k e d jurisdiction beca use the statements and events alleg ed by Be cker fell within th e e c c le s ia s ti c a l abstention doctrine. The trial court held an evidentiary hear ing on the pl ea. Clardy ’s evidence included excerpts from the oral deposition of the principal, a copy of the Policy , Be cker ’s written statement in Fe bruar y 2008
to the principal, and excerpts from Be cker ’s oral depositio n . Be cker filed a response to the plea, b u t h e d i d n o t prese nt evidenc e at the hear ing. After the hear ing, the trial court signe d an orde r sustaining Clardy ’s plea to the jur isdiction and dismis sing the case . This appea l followed.

ANALYSIS Stan dard of Revie w

“L ack of jurisdiction may be raised by a plea to the jurisdiction when relig ious-liberty
g rounds form the basis of the jurisdictional challeng e.” See W estbrook v. Penley , 231 S.W .3d 389,
394 (Tex. 2007

)

. We revie w a plea questioning the trial court’s subject matter jurisdiction de novo. See Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004). We focus first

on the pl aintiff’s p et i t i o n t o deter mine whether the facts that wer e pled aff irmatively demonstrate
t h at s ubject matter jurisdiction exis ts. Id. at 226. We construe the pleading s liberally in favor of the plaintiff. Id

. I f a plea t o the jurisdiction challeng es the exis tence of jurisdictional fac ts, the trial court may consider evidenc e and must do so when nece ssary to resolve the jurisdictional issues raised. Id . at 227; Bland Indep. Sc h. Dist. v. Blue , 34 S.W .3d 547, 555 (Tex. 2000).

4The Ecclesiastical Abstention Doctrine
Be cker ’s sole issue is whether the trial court corr ectly deter mined that it lacke d subject matter jurisdiction based upon the ec clesiastica l abstention doctrine. The Doctrine “pre vents secula

r courts from revie wing many ty pes of disputes that would re q u i re an analy sis of ‘theolog ical controve rsy , churc h discipline, ecc lesiastical g overnme nt, o r t h e confor mity of the members of the churc h to the standard of morals require d.’” Patton v. Jones , 212 S.W .3d 541,
547–48 (Tex. App.—Austin 2006, pet. denied) (quoting W atson v. Jones , 80 U.S

. 6 7 9, 733 (1872)) ; see W

estbrook , 231 S

. W

. 3 d at 397–98; In re Godwin , 293 S.W .3d 742, 747–48 (Tex. App.—San Antonio 2009, orig

. proce eding ); W illiams v. Gleason , 2 6 S.W .3d 54, 58 (T ex . Ap p.—Houston [14t h Dist.] 2000, pet. denied)

. “[C] ivil courts are to acc ept ‘as final, and as binding on them’ the decisions of an ecc lesiastical instit ution on such matters

. ” P a t t o n , 212 S.W .3d at 547 (quoting W atson , 80 U.S. at 728). The Doctrine arises from the Fr ee Ex erc ise Clause of the Fi rs t Am endment of the Constit ution and applies to the states throug h the Four teenth Amendment. See U.S. Const. amends. I (“Cong ress shall make n o la w r e s pecting an establishment of relig ion, or prohibiting the fre e exercise there of.” ), XI V. Among its prohibitions, the Fr ee Ex erc ise Clause prec ludes g overnme nt action that burdens the fre e exercise of relig ion “ by encr oaching on the churc h’s ability to manag e its internal aff airs.” W estbrook , 231 S.W .3d at 395. “Althoug h wrong s may exis t in the ecc lesiastical setting, and althoug h the administrat i o n o f the churc h may be inadequa te to provide a reme dy , the
prese rvation of the fre e exercise of relig ion is deeme d so important a principle that it oversha dows the i nequities that may result fr o m its application.” W illiams , 26 S.W .3d at 59 (citation om itted);

see In re Godwin , 293 S.W .3d at 750 (cour ts g ive “g rea t defe renc e t o t h e Fi rs t Amendment’s

5fre edom of relig ion g uara ntee” ). T o deter

mine whether the Doctrine applies, courts consider th e “s u bstance and nature ” of the plaintiff’s claims and the eff ect of a judicial resolution, and
not whether wrong s may g o unaddre ssed. See In r e Go dwin , 293 S.W .3d at 750 (cour t considers substance and eff

ect of the claim’ s re s o l u t i o n by a civil court in deter mining whether focus of dispute is on ecc lesiastical matters); Patton , 212 S.W .3d at 548. I n this context, we turn to Be cker ’s pleading s and the evidenc e rele vant to the jurisdictional issue. See Miranda , 133 S.W .3d at 227–28.

I n his petition, Be cker seeks damag es for alleg ed defa matory statements. See
Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2011) (ele ments of libel); W F A A -T V , Inc.

v. McLem ore , 978 S.W .2d 568, 571 (Tex. 1998); Turner v. Church of Jesus Christ of L a t t er-Day Saint s , 18 S.W .3d 877, 902 (Tex. App.—Dallas 2000, pet. denied) (to prove defa mation, private individual “had to show the C hu rc h published a false s tatement and was neg lige nt about t he truth of the statement”)

. Be cker alleg ed that Clardy made statements to “students, administrators, fac ulty and/or parents” and to “super iors ” t hat “were intended to defa me [ his] char acte r and reputa tion.” The complained- of statements conce rned Be cker ’s actions as a teac her at the school and addre ssed the subjects of teac her discipline and Be cker ’s interac tion with students and other teac hers. Be cker
urg es that these sta tements wer e pure ly secula r and not e ccle siastical in nature

. I t is t rue that the Free Ex erc ise Clause does not immuniz e all tort cause s of action.
See Pleasant Glade v. Schubert , 264 S.W .3d 1, 11–12 (Tex. 2008); Tilt on v. Marshall , 925 S.W .2d 672, 677 (Tex. 1996). But “eve n though the elements of a common law tort may be defined by secula r principles without reg ard to relig ion, it does not nece ssarily follow t hat application of those principles to impose civil tort liability would not run afoul of protec tions the constitut i on aff ords to a churc h’s rig ht to construe and administer churc h doctrine.” Schubert , 264 S.W .3d at 10

6(citing W

estbrook , 2 3 1 S

. W

. 3 d at 400). Her e, the alleg ed statements and damag e to reputa tion contained in Be cker ’s pleading s wer e “conf ined” to the churc h community

. See Patton , 212 S.W .3d
at 553 (quoting Heard v. Joh n son , 810 A.2d 871, 884–85 (D.C. App. 2002)); see id. at 555 n.12 (distin gu i s h i n g betwee n alleg ed defa matory rema

rks to third persons and rema rks published to members of the churc h community ). The evidenc e prese nted was conclusive that Be cker ’s claims

wer e li mited to damag e to his reputa tion in the church co m m u n i t y b as ed upon alleg ed st atements made by Clardy to her students and to B ecke r’s “ superiors.” 4
Fur ther, the evidenc e showed that the substance of Be cker ’s claims was that Clardy had violated the Policy ’s code of ethics and moral standards of the Catholic faith and Ca non L aw. The Policy sets forth th e co d e o f et h ics and require d moral standards for churc h personne l, how churc h personne l should repor t “incidents, alleg ations, and/or conce rns,” and the proce dures for investiga tion and the rang e of disciplinary actions for misconduct, including immoral conduct

or hara ssment. Actions of churc h personne l that “may constitute immoral conduct [or] hara ssment” “shall be repor

ted” to the pastor, the principal, or cer tain other identified pe rsons. The proce dures provide the “steps in discipline,” including termination, and th at “i t i s the responsibility of supervisors to addre ss the problem(s) in a timely and equitable manner .” The principal’s deposition testimony was that she followed the Policy with respe ct to the dispute betwee n Be cker and Clardy

.

Whether or not to “impose civil t o rt l i ab ility ” ag ainst Clardy for harm to Be cker ’s reputa tion within the community then nece ssarily would require an analy sis of intern al churc h matters and doctrine. See Schubert , 264 S.W .3d at 10; In re Godwin , 293 S.W .3d at 750; Patton ,

At the hear ing, Be cker ’s counsel stated that “this case is f ocused solely on the ef

fec t that 4 the Def endant’ s actions had a g ainst Mr. Be cker ’s re putation in the community .” 7212 S.W .3d at 548; see also W estbrook , 231 S.W .3d at 397 (“I t is a core tenant of First Amendment jurisprudenc e that, in resolving civil claims, courts must be car eful not to intrud e u pon internal
matters of churc h g overna nce.” ); see id. at 400 (alleg ed defa matory statements could not be “isolated from the c hurch- disciplinary proce ss”). Whether or

not it was true that Be cker was the rea son for
teac hers to be fired “would require an analy sis” of the school’s “discipline” decisions in the context of the relig ious moral standards and churc h doctrine set forth in the Policy

. See Patton , 212 S.W .3d at 547–48 (c itation omitted); see also W estbrook , 231 S.W .3d at 392 (“ churc h discipline” is “cor e

re l i gi o u s” function); W

illiams , 26 S.W .3d at 59 (“A lthough [ plaintiffs] arg ue their claims arise i n tort, we find that eac h claim implicates an ecc lesiastical matter, namely their subjection to the church ’s d i scipline.”); Patterson v. Sw. Baptist Theological Seminary , 858 S.W .2d 602, 605–06 (Tex

. Ap p . —For

t Worth 1993, no writ) (matter of employ ment of seminary fac ulty “could not be resolved w ithout refer ence to spiritual meaning of t he requirements and g uidelines set forth in the fac ulty manual”)

. The truth or falsity of Clardy ’s other alleg ed statements and the alleg ed injury to Be cker ’s reputa tion within the churc h community also would require an an aly sis of the churc h’s moral standards and churc h doctrine. See In re Godwin , 293 S.W .3d at 750; Patton , 212 S.W .3d
at 547–48. Be cause Be cker ’s alleg ed harm is limit ed to the harm to his reputa tion within the churc h community , it is m easur ed ag ainst the bac kdrop of the c hurch’ s relig ious morals and principles. 5

The dissent analy

zes whether Be cker can preva il on a defa mation claim; h o we v er , 5 rec itation of the elements of defa mation is not dispositi ve. See Pleasant Gl a de v. Schubert , 264 S.W .3d 1, 11–12 (Tex. 2008) (whe ther or not “ele ments of a common law tort may be defined by secula r principles without reg ard to relig ion” is not dispositi ve issue). The “substance and nature ” of Be cker ’s claim—confined to alleg ed damag e to his reputa tion within the churc h community

—nece ssarily require s looking at the “commun i t y ” an d what they believe. See Patton v. Jones , 212 S.W .3d 541, 547–48 (Tex. App.—Austin 2006, pet. denied) (sec ular courts prec luded from “re viewing

. . . disputes that would require an analy sis of

. . . ‘the confor mity of the members of the c hurch to the standa rd of mora ls require d’”) (citation omitted).

8Be cker urg es that his claims do not challeng e action by the school beca use the school did not rea ch a decision on whether or not to discipline Clardy

. The undisputed evidenc e, howeve r, was that the sc hool did make a de cision by choosing not to take disciplinary action ag ainst Clardy afte r she resig ned. See W estbrook , 231 S.W .3d at 399 (citing W atson , 80 U.S. at 727) (“A churc h’s

The dissent also seems to endorse a piece meal analy sis of whether a particula r alleg ed defa matory statement is subject to the doctrine. We disag ree with this approa ch and find the analy sis in W i l l i a ms and In re Godwin instructive. See In re Godwin , 293 S.W .3d at 750; W illiams v. Gleason , 26 S.W .3d 54, 58 (Tex. App.—Houston [14t h Dist.] 2000, pet. denied)

. I n both case s, the plaintiffs asser

ted defa mation among their claims, and the court found their claims subject to the doctrine by

analy zing the over all dispute.
I n In re Godwin , our sister court held that the ecc lesiastical abstention doctrine prec luded j u d i ci al revie w of all the plaintiff’s claims asser ted ag ainst a pastor and the pastor’s churc h

. T h e plaintiff asser

ted, am o n g h i s claims, defa mation based upon the pastor’s statements about the plaintiff from the “pulpit” including acc using the plaintiff of “bribe ry .” 293 S.W .3d at 746, 748–49. Whether or not this p articula r statement was defa

matory seeming ly could have been deter mined without ref

ere nce to the churc h’s doctrine or aff airs but that was not the analy sis. The court did not view this statement separ ately , instead focusing on the overa ll dispute to conclude that the plaintiff’s claims “implicate[d] ecclesiastica l matters protec ted from se cular revie w.” Id . at 748. Simi larly , i n W

illiams , the court conclude d that all of the plaintiffs’ claims ag ainst members of the churc h wer e prec luded by the ecc lesiastical abstention doctrine. 26 S.W.3d at 55. The plaintiffs, among their claims, asser ted that two of the defe ndants “wr ote a libelous letter” to the plaintiffs “a ttacking their cha rac ter.” I n dismiss ing a ll claims, the court explained: Whether this suit is eccl es i as t ical, or conce rns proper ty rig hts, torts, or criminal conduct , i s deter

mined by first examining the substance and eff ect of the [pl aintiffs’] petition—without considering what they use as claims—to deter mine its ecc lesiastical implication.

. . . T h u s, beca

use appellant’ s entire suit would require us to revie w the ecc lesiast i ca l judicial p ro cess and to deter mine the eff

icac y of the parties’ relig ious beliefs and prac tices, we find we a

re w ithout jurisdi ction to decide this suit. Id

. at 59–60 (empha sis added)

. Ag ain, the court did not utiliz e a piece meal approa ch, but looked to the over all controve rsy

to determine if the doctrine a pplied. 9decision to discipline members for conduct consider ed o u t s i d e of the churc h’s moral code is

an inhere ntly relig ious function with which civil courts should not gen erally interfe re.” ). I n his deposition, Be cker ag ree d that he was subject t o t h e Policy ’s “ter ms and conditions.” Consist ent with the Policy , Be cker advised the principal and pastor of Clardy ’s alleg ed statements and set forth his ex pecta tions for how they should handle the matter. He a lso testified that his ex pecta tions did
not g et fulfilled to his satisfac tion. Be cker chose not to sue the school for its lack of action ag ainst Clardy , but broug ht his claims direc tly ag ainst Clardy

. A civil court action resolving Be cker ’s claims
t h en wo u l d encr oach on the churc h’s “ability to manag e its internal aff airs.” See W

estbroo k , 231 S.W .3d at 395; see id

. at 399–400 (member of churc h who submits to the “ec clesiastica l power ”
cannot later “invoke the supervisory power of the civil tribu n al s ”) ; W i l l iams , 26 S.W .3d at 59 (“[M]embers may not involve the state in ecc lesiastical g overnme nt by improperly usin g t he civil justi ce sy stem to review a n ecc lesiastical judicator

y ’s ac tion.”).
Be cker points to the provision in the Policy that instructs churc h personne l to contac t police or civil authorities first if “ther e is an indication of illega l actions by Church personne l.” He
urg es that this provision shows that the Policy was not meant to be the only source of discipline for Clardy ’s behavior

. Be cker , howeve r, has not asser ted that Clardy has taken an illega l act. Fur ther, in deter mining whether the Doctrine applies to to r t c la ims, the courts distinguish intentional torts that endang er public health and safe ty and that cause phy sical harm from torts that only cause intang ible

or emotional harms. See W estbrook , 231 S.W .3d at 404. Be cker does not seek damag es for phy sical harm but for harm to his reputa tion within the churc h community

. See Schubert , 264 S.W .3d at 12 6

We acknow ledg e that defa mation may be committed in a relig ious setting. However, 6 wher e the alleg ed damag es are limit ed to damag e to reputa tion within the churc h community and 10(“Par

ticularly , when th e ad h er ent’s claim, as here , involves only intang ible, emotional damag es allege dly cause d by a si ncer ely held religious belief, court s m u s t car efully scrutinize the circ umstances so a s not to become e ntang led in a re ligious dispute.”)

.

As part of his issue, Be cker also contends that t he Doctrine applies only to claims
ag ainst author i t y fi gu res in the churc h or the churc h itself and, there fore , that it does not apply to his claims ag ainst a fellow member of the commu n i t y an d co-w orker

. I t is true that courts have 7 applied the Doc trine t o claims asser ted aga inst churc h members who are in positi ons of authority

. See W illiams , 26 S.W .3d at 59 (“Ec clesiast i ca l immunit y would be an empty protec tion if a disgr untled member, denied the chanc e to sue the relig ious body , sued instead the m em b ers of the re l i gi o u s b o d y who disciplined him.”). The Texas Supreme Court, howeve r, has applied the Doctrine to tort claims by a churc h member ag ainst other churc h members who wer e not in authority positions. See Schubert , 264 S.W .3d at 12 (holding court lacke d jurisdicti o n t o consider churc h member’ s assault cl aim s ag ainst other churc h members)

. We, there fore , decline to prec lude the application of the Doctrine to Be cker ’s claims on this gr ound.

CONCLUSION Considering Be cker ’s pleade d claims and the evidenc e rele vant to the jurisdictional issue, we conclude that the ecc lesiastical abstention doctrine applies to Be cker ’s cl ai m s. See

measure d ag ainst the backdr op of relig ious beliefs and “the standard of morals require d,” we cannot intervene

. See P atton , 212 S.W .3d at 547–48. Clardy arg ues that Be cker has not prese rved this particula r arg ument. Be cause we conclude 7 that the Doctrine applies here , we need not addre ss this additi o n al ar gu ment in support of the trial court’ s order

. See Tex. R. App. P . 47.1. 11Miranda , 133 S.W .3d at 227–28. We there fore overr ule Be cker ’s issue and aff irm the trial court’s order sustaining Clardy ’s plea to the jur isdiction and dismis sing the case for lac k of jurisdiction.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Henson a nd Goodwin; Dissenting O pinion by J ustice He nson Affir med Filed: De cembe r 22, 2011

12