Monday, August 22, 2011

Texas Supreme Court Asks for Full Briefing in Good Shepherd Case

Last Friday, the Texas Supreme Court issued a brief order asking for full briefing of the request for review, filed by the Church of the Good Shepherd in San Angelo, Diocese of Northwest Texas, of the adverse decision of the Court of Appeal in Austin, which I critiqued in this earlier post. This is a positive sign of the Supreme Court's interest in the case, at the same time that it has before it Bishop Jack Iker's request that it review directly the adverse summary judgment decision in the Fort Worth case by Judge Chupp of the Tarrant County District Court.

The Texas Supreme Court had been on summer recess until lately. They meet to consider petitions on Fridays, and normally announce their disposition of the petitions the following Monday. Most petitions are dismissed without any further briefing whatsoever. If, after full briefing of the San Angelo case, they decide to accept it for review, they could either hold the Fort Worth case until the Good Shepherd case is decided, or they could accept it as well and decide both cases at the same time, or they could simply decide the Good Shepherd case, and assign the Fort Worth one back to the Court of Appeal for further hearing and decision in light of the opinion given in the San Angelo case.

The point is that the Texas Supreme Court has not yet signaled that it does not want to hear any cases involving the question of which standard Texas courts must apply to church property disputes: hierarchical deference, or "neutral principles of law". (Its last case involving such a question was decided in 1909, when there were no decisions upholding "neutral principles".) Instead, its request for full briefs in the San Angelo case sends just the opposite signal. Stay tuned to this blog for more as it happens.


  1. I eagerly wait for the court's next action

  2. I can't shake an uneasy feeling about this. San Angelo is parish vs Diocese. Ft. Worth is Diocese vs TEC. If the Court rules against the parish, what if that thought pattern spills over to the Diocese appeal? IOW, what if the Court just can't distinguish between rules that should apply at the parish level, versus rules that should apply at the Diocese level?

    To me, the Fort Worth case is so clear: The delegates voted in accord with the C&C's to disaffiliate from TEC. Some individuals then left the Diocese, but claim that they should have all of the Diocese's property. How can that possibly be right?

  3. Carolyn, thank you for expressing your concerns so clearly and cogently. However, keep in mind that ECUSA did not even try to argue the Dennis Canon to Judge Chupp in Fort Worth. (At least their attorneys should receive some credit for recognizing that it did not apply.) The San Angelo case, on the other hand, is all about the efficacy of the Dennis Canon under Texas law -- if Texas follows "hierarchical deference", then the Canon wins, but if it follows "neutral principles" (truly applied), it loses to the Texas Statute of Frauds.

    So it is only if the Texas Supreme Court were to reaffirm the "hierarchical deference" standard in Texas that there would be cause for concern. And somehow, given what I have learned about the Texas Courts of Appeal in doing this blog, I have some confidence that there are few justices on the appellate bench who want to stick to an 1871 U.S. Supreme Court case (Watson v. Jones) rather than adopt the more rational view of its 1979 decision in Jones v. Wolf.

    That being said, it remains to be seen whether the Supreme Court of Texas will discern, from the full briefs in the San Angelo case, the flimflammery by which ECUSA and the Diocese of Northwest Texas try to finesse the Dennis Canon issue by relying heavily on Justice Blackmun's damned dictum.