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Episcopal School of Dallas ESD - john doe's petition for writ of mandamus

Real Party in Interest Episcopal School of Dallas is a private primary and secondary school that is unaffiliated with a church and is governed by secular admissions, code of conduct, and disciplinary policies. In direct violation of these policies and express promises ESD made to Relator Doe—and after obtaining great sums of Doe’s tuition dollars—ESD breached its promises by requiring Doe’s son, John Doe Jr., to withdraw from the school. For more info visit: https://youtu.be/Agcdi_23s2k<br>, http://www.authorstream.com/Presentation/MeredythCole-3595484-episcopal-school-dallas-esd-original-petition/<br>

MeredythCole
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Episcopal School of Dallas ESD - john doe's petition for writ of mandamus

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  1. FILED 17-1005 12/7/2017 9:43 PM tex-21163971 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK No. 17-_____ _____________________________________________________________ _____________________________________________________________ The Supreme Court of Texas _____________________________________________________________ _____________________________________________________________ IN RE JOHN DOE, INDIVIDUALLY AND AS NEXT FRIEND FOR JOHN DOE, JR., A MINOR _____________________________________________________________ _____________________________________________________________ Original Proceeding From the Fifth Court of Appeals - Dallas Cause No. 05-17-00493-CV ________________________________ _____________________________________________________________ _____________________________ PETITION FOR WRIT OF MANDAMUS _____________________________________________________________ _____________________________________________________________ Craig T. Enoch Marla D. Broaddus Shelby O’Brien ENOCH KEVER PLLC 5918 W. Courtyard Dr. Suite 500 Austin, Texas 78730 512.615.1200 512.615.1198 fax Lawrence J. Friedman FRIEDMAN &FEIGER,L.L.P. 5301 Spring Valley Road, Suite 200 Dallas, Texas 75254 972.788.1400 972.788.2667 fax ATTORNEYS FOR RELATORS EMERGENCY RELIEF REQUESTED

  2. IDENTITY OF PARTIES AND COUNSEL Relators: John Doe (“Doe”), individually and as next friend for John Doe, Jr., a minor (“Doe, Jr.”) (collectively, “the Doe Family”)1 Relator’s Trial Counsel: Lawrence J. Friedman Lance Pool (no longer with firm) FRIEDMAN &FEIGER, L.L.P. 5301 Spring Valley Road, Suite 200 Dallas, Texas 75254 John Sokatch DYKEMA COX SMITH 1717 Main Street, Suite 4200 Dallas, Texas 75201 Relator’s Appellate Counsel: Craig T. Enoch Marla D. Broaddus Shelby O’Brien ENOCH KEVERPLLC 5918 W. Courtyard Dr., Suite 500 Austin, Texas 78730 Christopher D. Kratovil Kristina M. Williams DYKEMA COX SMITH 1717 Main Street, Suite 4200 Dallas, Texas 75201 Respondent: Fifth Court of Appeals, Dallas, Texas 1 Because John Doe, Jr. was a minor at the time of the events giving rise to this matter, in this mandamus proceeding and the proceedings below, Relators use the pseudonyms Doe and Doe Jr. i

  3. Real Parties in Interest: The Episcopal School of Dallas, Inc. (“ESD”), Meredyth Cole, Jeffrey Laba, and Donna Hull Real Parties in Interest’s Trial and Appellate Counsel: Ronald W. Johnson J. William Conine TOUCHSTONE,BERNAYS,JOHNSTON,BEALL, SMITH &STOLLENWERCK, LLP 4040 Renaissance Tower 1201 Elm Street Dallas, Texas 75270-2196 Karen S. Precella Andrew W. Guthrie HAYNES &BOONE, LLP 301 Commerce Street, Suite 2600 Fort Worth, Texas 76102-4140 ii

  4. TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ............................................................ i INDEX OF AUTHORITIES ...................................................................................... v MANDAMUS RECORD ......................................................................................... vi STATEMENT OF THE CASE ............................................................................... vii STATEMENT OF JURISDICTION...................................................................... viii ISSUES PRESENTED ............................................................................................... x INTRODUCTION ..................................................................................................... 1 STATEMENT OF FACTS ........................................................................................ 3 A. ESD is a private school that claims to be religious institution but has no affiliation with a particular church or church doctrine. ................................................................................................. 3 B. ESD made express promises to Doe about Doe Jr.’s education, Doe paid tens of thousands in tuition dollars relying on these promises, and ESD refused to honor the representations it made. ..................................................................................................... 5 C. Doe filed suit to recover monetary damages caused by ESD and the individual defendants. ..................................................................... 9 ARGUMENT ...........................................................................................................11 I. The court of appeals abused its discretion by applying the ecclesiastical abstention doctrine to bar claims against a private school that concern secular education policies and do not implicate or require resolution of religious doctrine. .....................................................................11 A. The ecclesiastical abstention doctrine is intended to protect against state interference in a religious entity’s governance, faith, and doctrine. ...............................................................................11 B. This Court should clarify that the Doctrine does not shield a private school, unaffiliated with a religious entity, from claims that touch upon the school’s secular internal affairs. ..........................13 iii

  5. C. Because the allegations and evidence show Doe’s claims against ESD implicate ESD’s secular, educational internal affairs, the court of appeals abused its discretion in applying the Doctrine. ..............................................................................................16 II. Mandamus relief is available. ........................................................................19 PRAYER ..................................................................................................................20 CERTIFICATE OF COMPLIANCE .......................................................................21 MANDAMUS CERTIFICATION...........................................................................21 CERTIFICATE OF SERVICE ................................................................................22 APPENDIX ..............................................................................................................23 iv

  6. INDEX OF AUTHORITIES CASES C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389 (Tex. 2007) .......................................................................passim Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594 (Tex. 2013) .............................................................................. 12 In re Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) .............................................................................. 19 In re St. Thomas, 495 S.W.3d 500 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) ................................................................................................... 14, 15 Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ........................................................................ 16, 18 Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996) .................................................................. 12, 13, 16 In re Vida, No. 04-14-00636-CV, 2015 WL 82717 (Tex. App.—San Antonio Jan. 7, 2015, orig. proceeding) ............................................................... 13, 14, 15 STATUTES &CONSTITUTIONAL PROVISIONS TEX.CIV.PRAC.&REM.CODE § 84.002 .................................................................... 5 TEX.CIV.PRAC.&REM.CODE § 84.003 .................................................................... 5 U.S.CONST.AMEND. I. ............................................................................................. 11 v

  7. MANDAMUS RECORD Relators have filed three volumes reflecting the Mandamus Record for this matter. • Two volumes contain the documents that the trial court did not order filed under seal and are referred to in this Petition as “MR” for the first volume and “2-MR” for the second volume. • The volume with the documents that are being filed under seal per the trial court’s protective order is referred to in this Petition as “SMR.” vi

  8. STATEMENT OF THE CASE Nature of the Case Real Party in Interest Episcopal School of Dallas is a private primary and secondary school that is unaffiliated with a church and is governed by secular admissions, code of conduct, and disciplinary policies. In direct violation of these policies and express promises ESD made to Relator Doe—and after obtaining great sums of Doe’s tuition dollars—ESD breached its promises by requiring Doe’s son, John Doe Jr., to withdraw from the school. ESD never refunded the thousands of dollars Doe paid. Thus, Doe, individually and as next friend for his son, filed suit against ESD and certain ESD employees for money damages. ESD filed a counterclaim against Doe, alleging that Doe breached the Enrollment and Tuition Agreement by suing ESD. After litigating the case for well over a year, ESD and the individual defendants employed by ESD filed a jurisdictional plea, seeking dismissal of Doe’s claims based on the “ecclesiastical abstention doctrine.” After considering Doe’s allegations and the evidence presented, the trial court denied the plea. ESD and the individual defendants filed a petition for writ of mandamus. The Dallas Court of Appeals stayed the trial court proceedings pending its decision. Respondent Respondent’s Actions Necessitating Relief Fifth Court of Appeals, Dallas, Texas The Dallas Court of Appeals conditionally granted mandamus relief and ordered the trial court to dismiss the lawsuit. The court of appeals concluded that: (1) ESD is a faith-based institution “enjoying First Amendment Protection for the free exercise of religion;” and (2) resolving Doe’s claims “would require a court to pass judgment on the school’s internal affairs and governance— matters exclusively within the province of an ecclesiastical institution.” In re Episcopal Sch. of Dallas, Inc., No. 05-17-00493- CV, 2017 WL 4533800, at *8-9 (Tex. App.—Dallas Oct. 11, 2017, orig. proceeding) (Appendix A). As such, the court held that “the ecclesiastical abstention doctrine applies, the trial court lacks subject-matter jurisdiction, and it abused its discretion by denying Relators’ plea to the jurisdiction and motion to dismiss.” Appendix A, at *9; see also Appendix B. vii

  9. STATEMENT OF JURISDICTION This Court has jurisdiction over this mandamus proceeding for two reasons. First, the Court has jurisdiction to consider an error of law that is important to the jurisprudence of the state. TEX.GOV’T CODE § 22.001(a)(6). This Court has discussed the boundaries of the ecclesiastical abstention doctrine (“Doctrine”) on a handful of occasions. But this Court has never considered whether a private school that claims to be a religious institution may rely on the Doctrine when the breach and tort claims at issue concern the school’s secular promises and warranties about the education of its students. The Dallas Court of Appeals applied the Doctrine to the private school defendant here and the individual defendants employed by the school, allowing them to evade liability for breach and fraud claims that implicate the school’s secular education policies, not religious standards of conduct. This Court’s guidance regarding the limits of the Doctrine in suits against private schools, which often purport to wear “religious” hats but engage in relationships and conduct of a purely secular nature, is important to the state’s jurisprudence. Second, this Court has jurisdiction to issue a writ of mandamus against a Texas court of appeals. TEX.GOV’T CODE § 22.002(a). The Dallas Court of Appeals abused its discretion by misapplying this Court’s jurisprudence regarding the standard applicable when determining a jurisdictional plea, ignoring the plaintiff’s allegations and evidence, accepting the defendants’ allegations as viii

  10. conclusively proved, and holding that the Doctrine bars Doe’s claims. In doing so, the Dallas court allowed a private school bound by no church or religious doctrine to avoid its secular contractual promises and commit fraud. This Court should exercise its original jurisdiction to address this error that, if not corrected, will lead to confusion in the lower courts concerning the correct review standard for pleas to the jurisdiction and will serve as precedent for the many private schools in our state that may claim a religious affiliation to avoid responsibility for harmful conduct not governed or dictated by religious doctrine. ix

  11. ISSUES PRESENTED I. Did the court of appeals abuse its discretion by applying the ecclesiastical abstention doctrine to bar the contract and tort claims in this lawsuit when: • the claims concern a private school’s secular conduct and policies and do not implicate or require resolution of religious doctrine? • the private school and individual defendants claiming protection under the “ecclesiastical abstention doctrine” are not affiliated with or governed by church doctrine? (Full Argument Reserved For Brief On The Merits) • the court of appeals misapplied this Court’s precedent concerning the applicable review standard by ignoring the plaintiffs’ pleadings, accepting the defendants’ allegations as true and proven, and refusing to acknowledge that the evidence, at a minimum, creates a fact issue surrounding the jurisdictional question? (Full Argument Reserved For Brief on the Merits) Is mandamus relief available to challenge the court of appeals’ order and opinion requiring the trial court to dismiss Doe’s suit under the ecclesiastical abstention doctrine? II. x

  12. INTRODUCTION This case presents an issue of first impression: Does the ecclesiastical abstention doctrine bar contract and tort claims brought against a private school that alleges to be a religious institution when those claims involve the school’s secular educational affairs that are not governed by religious doctrine? In the last few years, the San Antonio and Houston courts of appeals have applied the Doctrine to claims against Catholic private schools affiliated with the Diocese because the claims implicated the schools’ “internal affairs” promulgated by Catholic Church doctrine. In this case, the Dallas Court of Appeals erroneously followed suit even though ESD is not affiliated with a church, does not ascribe to a particular religious doctrine, and is governed by secular education policies. By applying the Doctrine under these circumstances and allowing ESD to avoid liability for its breach and fraud, the Dallas court has weakened the purpose of the Doctrine, which is to uphold the Free Exercise Clause by preventing civil intrusion into religious internal affairs. Private schools play a significant role in the education and care of our state’s children. They enter contracts with families, businesses, and vendors under which the private schools accept thousands of dollars and agree to pay for services and goods. These schools should not be permitted to exploit the Free Exercise Clause as a means to evade liability when the claims against them arise from secular 1

  13. conduct and do not implicate religious doctrine or require resolution of a religious controversy in any way. The Free Exercise Clause is intended to protect religious organizations from state interference with matters of religious governance, faith, and doctrine. Until the Dallas court’s opinion, the Clause has not been construed in a sweeping manner to permit a private school claiming to be a religious institution to take money from a public member, defraud and breach a contract with that person, and hide behind the Doctrine under the guise of having the right to manage the school’s “internal affairs”─affairs the evidence shows are not governed by religious tenet. This is an affront not only to the Free Exercise Clause, but also this Court’s precedent requiring courts to consider jurisdictional evidence when determining the Doctrine’s applicability and to deny a jurisdictional plea when the evidence raises a fact issue on the jurisdictional question. If not corrected, the Dallas court’s opinion will serve as precedent for private schools claiming to be a religious institution to avoid liability for abusive, tortious, and breach of contract conduct when the school argues that the claims against it concern “internal affairs,” regardless of whether those affairs implicate any 2

  14. religious doctrine.2 This will detrimentally impact not only the growing number of students and their families who rely on private schools for their children’s safety and education, but also an array of other parties who contract with private schools and reasonably expect that the schools live up to the bargains they make. This Court should grant review to address the scope of the Doctrine when private schools claim a First Amendment right to avoid civil claims against them. STATEMENT OF FACTS A. ESD is a private school that claims to be religious institution but has no affiliation with a particular church or church doctrine. ESD touts itself as being one of the top college preparatory schools in the nation. SMR 783-85. Parents pay ESD private school tuition rates of at least $25,000 per year in exchange for an education that, according to ESD’s mission statement, prepares their children “for lives of intellectual discovery, integrity, and purpose.” MR 125; SMR 358, 414, 513, 776. Although ESD includes the word “Episcopal” in its name, ESD represents itself to the federal government as a school, not an institution auxiliary to a church. MR 244; SMR 778-79. ESD has derived an economic benefit from tax-exempt public bonds available only to secular institutions. SMR 778-79, 799. Further, ESD 2 For example, in the recent past, an ESD teacher sexually assaulted a student. MR 129. Relying on the Dallas court’s opinion, schools like ESD could contend in these situations that the Doctrine bars claims concerning how the school investigated the incident, treated the student, and treated the teacher, all because these matters concern the school’s “internal affairs.” 3

  15. does not require its students to ascribe to a religion and does not recruit students based on their religion affiliation. SMR 786, 794. In fact, over 85% of ESD’s 2016-2017 students are non-Episcopalian and include Catholic or Methodist students as well as students not affiliated with any religion. SMR 786. ESD is so far removed from a formal religious affiliation that ESD refers to itself as “an independent school” not part of, owned, supervised or controlled by the Episcopal Diocese of Dallas. MR 213-16, 255; SMR 346, 425, 795, 797. And, although an Episcopal clergyman founded ESD over forty years ago, today neither the Episcopal Church nor any clergy own, manage, or control the school or its Board. MR 214-16, 220-25; see also SMR 782, 792, 795, 797. Only half the Board members are Episcopalian, and ESD had a Jewish chair of the Board when Doe Jr. was expelled. SMR 782, 804. ESD admits the school does not know the religious affiliation of its teachers and staff, and ESD does not give preference to Episcopalians when hiring. MR 220-23; SMR 796. ESD requires its students to take only one unit of religion instruction out of twenty-four required for high school graduation. SMR 770. Of the four elective religion courses ESD offers, not one centers on Episcopal doctrine or Protestant Christianity more generally. SMR 771-72; see also MR 230. 4

  16. B. ESD made express promises to Doe about Doe Jr.’s education, Doe paid tens of thousands in tuition dollars relying on these promises, and ESD refused to honor the representations it made. Doe Jr. enrolled at ESD in 2008. MR 126; SMR 846. From that time forward, Doe Jr. had consistently been an exceptional student—academically, athletically, and behaviorally. MR 126. In January of 2014, Doe paid the tuition for Doe Jr.’s expected enrollment at ESD for Doe Jr.’s upcoming junior year. MR 127. In making that payment, Doe relied on express representations ESD made in the Enrollment and Tuition Agreement (“Enrollment Agreement”) and the Upper School Student and Parent Handbook (“Student Handbook”), which the Enrollment Agreement incorporates. MR 127; SMR 346-50, 354-67, 848-50. First, in the Enrollment Agreement, ESD contracted for a limitation on its civil liability under Chapter 84 of the Texas Civil Practice & Remedies Code with respect to “all matters related to” Doe Jr.’s “affiliation with the School.” SMR 346; TEX.CIV.PRAC.&REM.CODE §§ 84.002(7), 84.003. ESD thus overtly acknowledged to Doe that ESD could be subject to a civil action for its agreement to provide Doe Jr. an education, albeit subject to the Chapter 84 limitations. Second, in the Student Handbook, ESD made promises concerning its education policies, including the code of conduct and disciplinary policy, SMR 360-67, which ESD supplemented through a September 23, 2014 letter to Upper 5

  17. School Families like the Doe Family. SMR 848-50. This letter includes a “Response Chart and Consequence Matrix” concerning the school’s disciplinary measures and explains that a “vast majority” of the outlined consequences are “NOT new changes in policy. These are responses that the school has been issuing for these offenses for many years.” SMR 850. ESD’s education policies are not based on religious doctrine. SMR 360-67. Rather, the code of conduct is premised on “Principles of Honor, Respect, and Integrity,” not one of which reflects a particular religious tenet: SMR 360. Further, ESD’s disciplinary policy is based on the following secular statement: The mission statement of [ESD] states that we strive to develop ‘the educated conscience’ inside each student. To carry out our mission, EDS must be a safe place, physically and emotionally, for the best learning to occur. The development of self-discipline is a process. Clear boundaries, expectations and repercussions support the development of self-discipline. Our Code of Conduct provides a reasonable, consistent, and fair disciplinary structure. 6

  18. SMR 848 (emphasis added); see also SMR 358. As part of this “reasonable, consistent, and fair disciplinary” policy, ESD expressly warrants: • “ESD’s disciplinary system is not punitive in nature.” SMR 848 (emphasis added). • ESD “take[s] to heart that, in most case, students should be given a chance to redeem themselves. We are not a zero-tolerance school.” SMR 848 (emphasis added). • ESD “will not impose a consequence without verifiable evidence” and will only “act when we have actual evidence, but gossip, rumors, and second and third hand information are not sufficient.” SMR 849. • “Suspension (1 Day)”─not expulsion─is the result for a student’s “first alcohol, first drug offense.” SMR 850. Doe considered these promises critical when deciding where Doe Jr. would spend his high school years. MR 131-32; SMR 845-46. Indeed, Doe chose to enroll Doe Jr. at ESD based on the school’s representations of “fair, even handed, and sympathetic treatment and discipline of its students” and its promise that it is “not a zero-tolerance school.” SMR 846. Doe considered these promises important because he “did not want to risk having John Doe Jr.’s academic career derailed by an alleged one-time youthful mistake.” SMR 846. The desire to keep Doe Jr. in a 7

  19. compassionate and stable educational environment was especially significant after Doe Jr.’s mother died in a tragic car accident. MR 135. In the fall of 2014 of Doe Jr.’s junior year, ESD abruptly breached the Enrollment Agreement as well as its express warranties and expelled John Doe. MR 126-27. In doing so, ESD made allegations against Doe Jr. that Doe and Doe Jr. vigorously deny and that contradicts the evidence.3 ESD admitted under oath that it did not rely on and was not compelled by religious doctrine when, in contravention of its promises, ESD expelled Doe Jr. MR 232-35. In fact, the individual defendants and ESD’s counsel─not clergy or Episcopalian Church doctrine─made the decision to terminate the Enrollment Agreement. MR 232-36; SMR 831-32. 3 ESD refused to allow Doe Jr. to continue his education at ESD because Doe Jr. allegedly left campus with another student and smoked marijuana. SMR 640-46. ESD did this even though it knew Doe Jr. had passed a legitimate urine test and knew Doe Jr’s friend had admitted he “threw [Doe Jr.] under the bus” and had lied to ESD about Doe Jr.’s involvement in the alleged incident. SMR 645, 640. In any event, this was Doe Jr.’s first alleged drug offense and one that allegedly occurred off campus, something ESD expressly promised would not result in the extreme punishment of expulsion. SMR 848-50. ESD’s conduct departed sharply not only from its express secular promises and warranties, but also from ESD’s punishment of other students. Out of more than fifty drug or alcohol incidents since 2008, Doe Jr. was the only student ESD expelled. SMR 647-769; see also, e.g., SMR 740 (“It is part of the school’s philosophy to give students a second chance when doing so will not compromise the safety or integrity of the school community.”); SMR 740 (ESD refused to discipline student even though student posted drug use on social media). Further, information shows that the head of school and her subordinates singled out Doe Jr. as a scapegoat to deflect from an embarrassing incident that occurred at the head of school’s home. MR 130, 133-35; SMR 317-18. This incident involved alcohol and was initiated by the head of school’s son, also a student at ESD, who committed multiple violations of the code of conduct but was only required to write a letter of apology to the ESD Board. SMR 646; see also SMR 317-18. 8

  20. C. Doe filed suit to recover monetary damages caused by ESD and the individual defendants. When ESD breached the Enrollment Agreement and committed fraud, ESD did not refund the tuition Doe had already paid. MR 127, 136. Further, Doe Jr. was forced to have a “black mark” on his academic record, enroll in a new school, and finish his upper school years without his ESD friends, teachers, and activities that ESD had promised would play a positive role in Doe Jr.’s education. MR 136. Doe, on behalf of himself and his son, thus filed an Original Petition, alleging tort and contract claims against ESD. MR 80; see also MR 123. ESD did not respond with any challenge to the trial court’s jurisdiction. MR 101. Instead, ESD filed a counter-claim, contending that Doe breached the Enrollment Agreement by bringing the lawsuit. MR 104. Then, after well over a year of discovery, ESD and the individual defendants filed a plea to the jurisdiction. SMR 321-468. In this plea, Defendants’ contended that because ESD “is a religious institution and because each of Plaintiffs’ claims seeks judicial review of the ESD’s internal affairs and governance, this suit is barred by the ecclesiastical abstention doctrine and must be dismissed.” SMR 330. The trial court denied Defendants’ plea. Appendix E; MR 303. Defendants subsequently filed their Petition for Writ of Mandamus and a Motion for Stay of Trial Court Proceedings Pending Mandamus Review. 2-MR 912. The Dallas Court of Appeals granted a stay and, without holding an oral argument, issued an opinion 9

  21. conditionally granting the writ. See Appendix A. The appellate court concluded that: (1) ESD is a faith-based institution “enjoying First Amendment Protection for the free exercise of religion;” and (2) resolving Doe’s claims “would require a court to pass judgment on the school’s internal affairs and governance—matters exclusively within the province of an ecclesiastical institution.” Appendix A, at *8- 9. The court thus held that “the ecclesiastical abstention doctrine applies, the trial court lacks subject-matter jurisdiction, and it abused its discretion by denying Relators’ plea to the jurisdiction and motion to dismiss.” Appendix A, at *9. After the opinion issued, ESD filed a motion to modify the relief the Dallas court ordered. 2-MR 1299. Even though it had successfully argued that the Doctrine applies, ESD asked the court to change its order to require the trial court to dismiss only Doe’s claims and not ESD’s counterclaim that is based on the very same contract from which ESD claims immunity from suit. 2-MR 1301. The court of appeals denied ESD’s motion and Doe’s motion for rehearing. See Appendix C- D; 2-MR 1364. 10

  22. ARGUMENT I. The court of appeals abused its discretion by applying the ecclesiastical abstention doctrine to bar claims against a private school that concern secular education policies and do not implicate or require resolution of religious doctrine. This case presents the Court with the opportunity to determine whether a private school—particularly one unaffiliated with a church—can hide behind the ecclesiastical abstention doctrine when a plaintiff brings claims against the school that concern the school’s secular affairs and do not require resolution of religious doctrine. The Court should grant review and conclude the answer is no. A. The ecclesiastical abstention doctrine is intended to protect against state interference in a religious entity’s governance, faith, and doctrine. The First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” U.S.CONST.AMEND. I. Under this “Free Exercise Clause,” the government (including the judicial branch) may not “encroach[] on the church’s ability to manage its internal affairs.” C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389, 395 (Tex. 2007). As this Court has explained, government action may burden the free exercise of religion in two different ways: “by interfering with an individual’s observance or practice of a particular faith ... and by encroaching on 11

  23. the church’s ability to manage its internal affairs.” Id. at 395 (federal citations omitted). In the last two decades, this Court has issued only a handful of decisions about the intersection of civil courts and church autonomy. See Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594 (Tex. 2013); Westbrook, 231 S.W.3d at 395; Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996). Each of these cases concerned claims against churches and church ministers, not claims against private schools. And, in these cases, the Court provided guidance concerning the boundaries of the Doctrine when church matters are involved. In Westbrook, for example, this Court explained that “[c]hurches have a fundamental right to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Westbrook, 231 S.W.3d at 397 (emphasis added). But civil courts have a duty to apply “neutral principles of law to non-ecclesiastical issues”—even when religious entities are involved. Masterson, 422 S.W.3d at 606 (emphasis added). Based on these First Amendment principles, this Court concluded that the Doctrine precludes civil tort claims based on a church’s discipline of its members who do not conform to the church’s morals. Westbrook, 231 S.W.3d at 397. But the Doctrine does not prohibit courts from considering a dispute regarding the division of church property, Masterson, 422 S.W.3d at 606-07, or a fraud claim against a church minister who 12

  24. falsely promised he would engage in certain conduct for financial gain. Tilton, 925 S.W.2d at 679. Accordingly, this Court’s precedent holds that the Free Exercise Clause prohibits courts from resolving disputes implicating religious doctrine and the church’s internal affairs premised on church doctrine. Westbrook, 231 S.W.3d at 397-98; Tilton, 925 S.W.2d at 677. This is because the state, through its courts, cannot “substantially burden” the free exercise of religion. See Tilton, 925 S.W.2d at 677. But this Court’s precedent also makes clear that the Free Exercise Clause does not preclude courts from deciding claims against religious entities when the dispute does not turn on matters of religious practice—and it does not prevent a court from considering claims against a private school that does not make educational decisions based on a particular religious doctrine. Otherwise, Texas courts would abdicate their constitutional duty to decide civil disputes. B. This Court should clarify that the Doctrine does not shield a private school, unaffiliated with a religious entity, from claims that touch upon the school’s secular internal affairs. This Court has never extended the Doctrine to claims that happen to touch on the secular educational affairs of a private school—and certainly not secular claims against a private school like ESD whose religious ties are nominal at best. As a consequence, the Dallas Court of Appeals in this case relied heavily on a couple of lower court decisions. Appendix A, at *8-9 (discussing In re Vida, No. 13

  25. 04-14-00636-CV, 2015 WL 82717 (Tex. App.—San Antonio Jan. 7, 2015, orig. proceeding) and In re St. Thomas, 495 S.W.3d 500 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding)). • In In re Vida, a family sought declaratory relief against the superintendent of a Catholic school related to the school’s decision to not promote a Kindergartner to First Grade. 2015 WL 82717, *1. The San Antonio Court of Appeals applied the Doctrine to bar the suit, concluding that the school was affiliated with the Catholic Diocese and that, because the claims implicated the “Diocese’s policy manual,” they “impinge[d] upon the Diocese’s ability to manage its internal affairs by adopting policies regarding admission requirements for Catholic schools.” Id. at *2-3. • In In re St. Thomas High School, the Houston (Fourteenth) Court of Appeals evaluated whether the Doctrine barred a family’s claim for injunctive relief against a Catholic school that had expelled a student based on the parents’ false allegations against a teacher. 495 S.W.3d 500, 504. The court held that the Doctrine precluded the claims because the school was a religious institution and “spiritual standards and references to Catholic teaching permeate[d]” the allegations the family made against the teacher. Id. at 512. Thus, the claims 14

  26. impermissibly required the court to resolve “spiritual standards and religious doctrine.” Id. at 513. Notably, in both St. Thomas and Vida, the private schools were directly affiliated with the Catholic Church. Further, in both cases, the families’ claims for injunctive or declaratory relief either implicated policy the Diocese directly promulgated or a teacher’s compliance with religious doctrine. These circumstances do not exist in this case. First, ESD is a private school with secular education policies. Second, the claims against ESD concern these secular education policies promising that a one- time mistake would not ruin a student’s educational trajectory. Third, unlike the families in St. Thomas and Vida, Doe is not seeking to force ESD to accept Doe Jr. as a student; he is suing for damages for ESD’s breach and fraud. A private school, even one loosely affiliated with religion, should not enjoy full-scale immunity from civil claims simply because they touch on “internal affairs.” To allow the Doctrine to apply in such a situation goes far beyond the Doctrine’s purpose of preventing civil intrusion on religious internal affairs. And it sets a dangerous precedent. The Dallas Court of Appeals’ opinion, if not corrected, will provide support for any private school or organization claiming a religious affiliation to hide behind the Doctrine when faced with claims based on conduct that has nothing to do with religious doctrine or faith. 15

  27. C. Because the allegations and evidence show Doe’s claims against ESD implicate ESD’s secular, educational internal affairs, the court of appeals abused its discretion in applying the Doctrine. Doe’s suit is, at its core, a suit seeking monetary relief for ESD’s false promises to Doe, who paid thousands of dollars to the school, concerning its secular education, code of conduct, and disciplinary policies. These false promises are substantially similar to the false statements in Tilton v. Marshall, which this Court concluded, despite Tilton’s undisputed religious operation, that the Doctrine did not protect. 925 S.W.2d at 677-79. Yet the Dallas court allowed ESD and the individual defendants to use the Doctrine as a shield, directly contravening the purpose of the Free Exercise Clause. How did this happen? The Dallas court failed to give due credit to Doe’s allegations and the evidence the trial court considered. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004) (review of jurisdictional plea requires court to “construe the pleadings liberally in the plaintiff’s favor”). These allegations and the evidence show that ESD is not a faith-based institution entitled to the Doctrine’s protection and that, even if it is, the Doctrine does not apply because the claims do not require the “resolution of a religious controversy.” Westbrook, 231 S.W.3d at 399. • The school represents to the IRS that it is a school and not a faith- based institution and has obtained bond financing available only to secular institutions. SMR 778-79, 799. 16

  28. • The school is not part of the Episcopal Diocese and receives no funds from the Diocese, and no church owns, operates, or controls the school. MR 213-16; SMR 792, 795, 797. ESD’s board members are not clergy; teachers and staff need not be Episcopalian; and the vast majority of the school’s students (85 percent) are not Episcopalian. SMR 786, 804. ESD expressly promised to work with families on disciplinary issues, warranted that its disciplinary process is not zero tolerance, and represented that ESD will not impose “a consequence without verifiable evidence” and that ESD’s “disciplinary process is not punitive in nature,” and that evidence of disciplinary issues must be “verifiable” and “actual.” SMR 848-49. ESD induced Doe to enter into an Enrollment Agreement and pay tuition based upon those representations, and ESD accepted that payment. MR 127; SMR 346-50. ESD admitted this was the first time Doe Jr. was alleged to be in trouble. SMR 406. And ESD’s notes show Doe Jr. passed a legitimate controlled substances test, SMR 644, and that the student who tried to blame Doe Jr. had lied. SMR 645. ESD records show many disciplinary actions in which students engaged in far more serious misconduct involving drugs and alcohol received far less severe punishments than Doe Jr. SMR 647-769. • • • • • • ESD admitted that its non-Episcopalian staff and its counsel, not clergy or a church, was involved in the decision to expel Doe Jr. MR 232-36; SMR 831-32. ESD’s education policies, including its code of conduct and disciplinary policies, are not based on religious doctrine. SMR 360- 67, 848-49. ESD had motivation to breach its contract, commit fraud, and treat Doe Jr. differently than how the school promised, as this was a means • • 17

  29. to deflect from an embarrassing event that happened earlier in the year involving the head of school and her son. MR 130, 133-35; SMR 318. If, as Doe alleges and the evidence shows, Doe Jr. was expelled for secular disciplinary reasons and in violation of secular promises and representations, then evaluation of ESD’s conduct does not implicate religious tenets or standards of conduct. But the Dallas court swept these allegations and evidence aside and, on top of this, erroneously concluded that the jurisdictional allegations of ESD, the defendant, are “undisputed” and “conclusively establish[ed].” Appendix A, at *4, 8. Equally troublesome, the Dallas court concluded the Doctrine applies to the school’s “internal affairs” without regard to whether they implicate religious doctrine. Because Doe’s allegations and the evidence at a minimum raise a fact issue on the jurisdictional question, the trial court was well within its discretion to deny the jurisdictional plea. And the Dallas court abused its discretion by second guessing this decision contrary to this Court’s precedent. Miranda, 133 S.W.3d at 228; see alsoWestbrook, 231 S.W.3d at 395 (“A plea should not be granted if a fact issue is presented as to the court’s jurisdiction....”). 18

  30. II. Mandamus relief is available. Mandamus is available when the court of appeals abuses its discretion and the relator has no adequate appellate remedy. See In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004). “The operative word, ‘adequate’, has no comprehensive definition; it is simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts... . An appellate remedy is ‘adequate’ when any benefits to mandamus review are outweighed by the detriments.” Id. at 136. Here, the benefits of mandamus review far outweigh the detriments. If the Court refuses to grant mandamus review, the trial court will be required to vacate its order denying ESD’s plea and dismiss the lawsuit. Although Doe could then bring a direct appeal to the Dallas Court of Appeals, that court has already written about this issue. Requiring Doe to bring an appeal to the Dallas court as a mere formality to seeking appellate review in this Court would constitute an enormous waste of resources for both the Dallas court and litigants. Further, the narrow issue of the Doctrine’s application is squarely before this Court given the proceedings below. This Court thus has full authority to exercise its mandamus jurisdiction here. 19

  31. PRAYER Relators pray that the Court grant this petition and order the Dallas court of appeals to vacate its order and opinion requiring the dismissal of Doe’s claims against the Defendants. Relator further prays that the Court grant any other relief to which Doe and Doe Jr. may be entitled. Respectfully submitted, By: /s/ Craig T. Enoch Craig T. Enoch State Bar No. 00000026 cenoch@enochkever.com Marla D. Broaddus State Bar No. 24001791 mbroaddus@enochkever.com Shelby O’Brien State Bar No. 24027203) sobrien@enochkever.com ENOCH KEVER PLLC 5918 W. Courtyard Drive, Suite 500 Austin, Texas 78730 512.615.1200 / 512.615.1198 (fax) Lawrence J. Friedman State Bar No. 07469300 lfriedman@fflawoffice.com FRIEDMAN &FEIGER,L.L.P. 5301 Spring Valley Road, Suite 200 Dallas, Texas 75254 972.788.1400 / 972.788.2667 (fax) ATTORNEYS FOR RELATORS 20

  32. CERTIFICATE OF COMPLIANCE Relator certifies that this Petition for Writ of Mandamus (when excluding the caption, identify of parties and counsel, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, signature, certificate of compliance, certificate of service, and appendix) contains 4,499 words. /s/ Marla Broaddus Marla Broaddus MANDAMUS CERTIFICATION Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that I have reviewed this petition and that every factual statement in the petition is supported by competent evidence included in the appendix or record. Pursuant to Rule 52.3(k)(1)(A), I certify that every document contained in the appendix is a true and correct copy. /s/ Marla Broaddus Marla Broaddus 21

  33. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via electronic service on the following counsel of record on December 7, 2017. Ronald W. Johnson J. William Conine TOUCHSTONE,BERNAYS,JOHNSTON, BEALL,SMITH &STOLLENWERCK,LLP 4040 Renaissance Tower 1201 Elm Street Dallas, Texas 75270-2196 ronjohnson@tbjbs.com will.conine@tbjbs.com Karen S. Precella Andrew W. Guthrie HAYNES AND BOONE,LLP 301 Commerce Street, Suite 2600 Fort Worth, Texas 76102-4140 karen.precella@haynesboone.com andrew.guthrie@haynesboone.com Christopher D. Kratovil Kristina M. Williams DYKEMA COX SMITH 1717 Main Street, Suite 4200 Dallas, Texas 75201 ckratovil@dykema.com kwilliams@dykema.com /s/ Marla D. Broaddus Marla D. Broaddus 22

  34. No. 17-_____ _____________________________________________________________ _____________________________________________________________ The Supreme Court of Texas _____________________________________________________________ _____________________________________________________________ IN RE JOHN DOE, INDIVIDUALLY AND AS NEXT FRIEND FOR JOHN DOE, JR., A MINOR _____________________________________________________________ _____________________________________________________________ Original Proceeding From the Fifth Court of Appeal - Dallas Cause No. 05-17-00493-CV _____________________________________________________________ _____________________________________________________________ APPENDIX _____________________________________________________________ _____________________________________________________________ A. In re Episcopal Sch. of Dallas, Inc., No. 05-17-00493-CV, 2017 WL 4533800 (Tex. App.—Dallas Oct. 11, 2017, orig. proceeding) B. Dallas Court of Appeals’ Order Conditionally Granting Mandamus Relief (Oct. 11, 2017) C. Dallas Court of Appeals’ Order Denying Motion for Rehearing and Motion to Modify (Nov. 15, 2017) D. Dallas Court of Appeals’ Order Granting Motion to Extend Trial Court’s Deadline to Issue Written Orders (Nov. 17, 2017) E. Trial Court’s Order on Defendants’ Plea to the Jurisdiction and Motion to Dismiss (Apr. 25, 2017) 23

  35. APPENDIX A

  36. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) 2017 WL 4533800 Only the Westlaw citation is currently available. NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Court of Appeals of Texas, Dallas. IN RE The EPISCOPAL SCHOOL OF DALLAS, INC., Meredyth Cole, Jeffrey Laba, and Donna Hull, Relators No. 05-17-00493-CV | Opinion Filed October 11, 2017 Synopsis Background: Parents of student, who was asked to withdraw from private, college preparatory school in lieu of being expelled after he allegedly left school without permission and smoked marijuana, brought action against school complaining about its disciplinary actions and application of its policies and procedures. The 68th Judicial District Court, Dallas County, No. DC-15-04152, denied school's plea to jurisdiction and motion to dismiss based on ecclesiastical abstention doctrine. School filed petition for writ of mandamus. Holdings: The Court of Appeals, Whitehill, J., held that: [1] as an issue of first impression, school was faith-based institution entitled to protection for free exercise of religion; [2] ecclesiastical abstention doctrine applied to parents' claims; and [3] doctrine of laches did not preclude mandamus relief. Relief conditionally granted. West Headnotes (26) [1] Courts Acts and proceedings without jurisdiction A trial court lacks discretion and must dismiss the case as a ministerial act when it lacks subject matter jurisdiction. Cases that cite this headnote [2] Mandamus Entertaining and proceeding with cause Mandamus is proper when a trial court acts without subject matter jurisdiction. Cases that cite this headnote Appendix A to John Doe's Petition for Writ of Mandamus Page 1 of 15 1 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  37. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) [3] Pleading Plea to the Jurisdiction Lack of jurisdiction may be raised by a plea to the jurisdiction when religious-liberty grounds form the basis of the jurisdictional challenge. Cases that cite this headnote [4] Appeal and Error Cases Triable in Appellate Court The Court of Appeals reviews de novo a plea to the jurisdiction questioning the trial court's subject matter jurisdiction. Cases that cite this headnote [5] Appeal and Error Proceedings preliminary to trial In reviewing a plea to the jurisdiction questioning the trial court's subject matter jurisdiction, the Court of Appeals focuses first on the plaintiff's petition to determine whether the pled facts affirmatively demonstrate that subject matter jurisdiction exists. Cases that cite this headnote [6] Appeal and Error Pleading The Court of Appeals construes the pleadings liberally in the plaintiff's favor when reviewing a plea to the jurisdiction questioning the trial court's subject matter jurisdiction. Cases that cite this headnote [7] Pleading Scope of inquiry and matters considered in general If a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court may consider evidence beyond the pleadings and must do so when necessary to resolve the jurisdictional issues raised. Cases that cite this headnote [8] Pleading Questions of law and fact The court must grant a plea to the jurisdiction as a matter of law if there is an incurable jurisdictional defect. Cases that cite this headnote [9] Constitutional Law Ecclesiastical matters The ecclesiastical abstention doctrine arises from the First Amendment's Free Exercise Clause and applies to the states through the 14th Amendment. U.S. Const. Amends. 1, 14. Cases that cite this headnote [10] Constitutional Law Freedom of Religion and Conscience Courts give great deference to the First Amendment's freedom of religion guarantee. U.S. Const. Amend. 1. Appendix A to John Doe's Petition for Writ of Mandamus Page 2 of 15 2 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  38. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) Cases that cite this headnote [11] Constitutional Law Internal affairs, governance, or administration; autonomy or polity Among its prohibitions, the Free Exercise Clause precludes government action that burdens the free exercise of religion by encroaching on the church's ability to manage its internal affairs. U.S. Const. Amend. 1. Cases that cite this headnote [12] Religious Societies Judicial supervision in general The “ecclesiastical abstention doctrine” prevents secular courts from reviewing many types of disputes that would require an analysis of theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required. Cases that cite this headnote [13] Constitutional Law Ecclesiastical matters Although wrongs may exist in the ecclesiastical setting, 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 that it overshadows the inequities that may result from its application; thus, courts accept as final and binding an ecclesiastical institution's decisions on such matters. U.S. Const. Amend. 1. Cases that cite this headnote [14] Religious Societies Judicial supervision in general The ecclesiastical abstention doctrine does not foreclose civil court subject matter jurisdiction over all disputes involving religious entities; because churches, their congregations, and their hierarchies exist and function within the civil community, they are amenable to rules governing civil, contract, and property rights in appropriate circumstances. Cases that cite this headnote [15] Religious Societies Judicial supervision in general To determine whether the ecclesiastical abstention doctrine applies, courts must analyze whether a particular dispute is ecclesiastical in nature or simply a civil dispute in which church officials happen to be involved. Cases that cite this headnote [16] Constitutional Law Private Education Education Establishment and status in general Private, college preparatory school was faith-based institution entitled to First Amendment protection for free exercise of religion, even though school was not owned or operated by church; school's bylaws required that at least one-half of its directors were communicants of Episcopal Church, students and faculty were required to attend and participate in daily chapel and students were required to complete mandatory religious curriculum requirements, school was member of National Association of Episcopal Schools and its head of school was Association board member, school's website emphasized that it was faith-based institution, and school's mission Appendix A to John Doe's Petition for Writ of Mandamus Page 3 of 15 3 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  39. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) and purpose were religious, as it endeavored to imbue its students and staff with Christian principles and values even if they did not already subscribe to them. U.S. Const. Amend. 1. Cases that cite this headnote [17] Constitutional Law Private Education Being a faith-based school instead of being a church does not deny the school First Amendment freedom of religion protection. U.S. Const. Amend. 1. Cases that cite this headnote [18] Education Punishment; suspension or expulsion Religious Societies Contracts and indebtedness Religious Societies Torts Ecclesiastical abstention doctrine applied to claims by parents of student, who was asked to withdraw from private, college preparatory school in lieu of being expelled after he allegedly left school without permission and smoked marijuana, against school complaining about its disciplinary actions and application of its policies and procedures; dispute derived solely from calculus of school's internal policies and management of its internal affairs, as breach of fiduciary duty, Deceptive Trade Practices Act, fraud, negligent misrepresentation, tortious interference, breach of contract, promissory estoppel, unjust enrichment, and intentional infliction of emotional distress claims were based on the application of internal policies, procedures, and guidelines set forth in the code of conduct and school handbooks. Tex. Bus. & C. Code § 17.41 et seq. Cases that cite this headnote [19] Appeal and Error Origin, nature, and scope of remedies in general Mandamus Nature and scope of remedy in general Mandamus Discretion as to grant of writ Unlike a direct appeal, which is a matter of right, mandamus is an extraordinary remedy, intended to be available in only limited circumstances at the court's discretion. Cases that cite this headnote [20] Mandamus Nature of questions involved Mandamus review is reserved for trial court errors where the very act of proceeding to trial, regardless of the outcome, would defeat the substantive right involved. Cases that cite this headnote [21] Mandamus Nature and scope of remedy in general To obtain mandamus relief, a relator must show either (i) the underlying order is void or a clear abuse of discretion and, (ii) no adequate appellate remedy. Cases that cite this headnote [22] Mandamus Laches Appendix A to John Doe's Petition for Writ of Mandamus Page 4 of 15 4 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  40. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) Doctrine of laches did not preclude mandamus relief for private, college preparatory school following trial court's denial of its plea to jurisdiction in action by parents of school, who was asked to withdraw from school in lieu of being expelled after he allegedly left school without permission and smoked marijuana, complaining about its disciplinary actions and application of its policies and procedures, despite claim that school waited 19 months before raising ecclesiastical abstention doctrine; school explained that it was waiting to complete sufficient discovery to present comprehensive plea to jurisdiction, parents did not identify any good faith and detrimental change in position resulting from delay in their suit, and relevant time period for laches was not measured from time that doctrine was raised but with reference to mandamus petition's filing, which was two weeks after plea was denied. Cases that cite this headnote [23] Equity Nature and elements in general “Laches” is an equitable remedy that prevents asserting a claim due to the lapse of time. 1 Cases that cite this headnote [24] Mandamus Laches For laches to bar a mandamus action, a real party in interest ordinarily must show (i) the opposing party's unreasonable delay in asserting its rights and (ii) the real party in interest's good faith and detrimental change in position because of the delay. 1 Cases that cite this headnote [25] Equity Application of doctrine in general Whether a party's delay in asserting its rights results in laches depends on the circumstances. Cases that cite this headnote [26] Courts Time of making objection A lack of subject matter jurisdiction can be raised at any time. Cases that cite this headnote Original Proceeding from the 68th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-15-04152 Before Justices Bridges, Fillmore, and Whitehill OPINION Opinion by Justice Whitehill *1 This original proceeding involves an issue of first impression for this Court: whether the ecclesiastical abstention doctrine applies to faith-based schools not owned or operated by a church.1 If that doctrine applies here as a general Appendix A to John Doe's Petition for Writ of Mandamus Page 5 of 15 5 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  41. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) matter, a second question is whether the plaintiffs' claims implicate the school's ability to manage its internal affairs such that the doctrine defeats the trial court's subject matter jurisdiction over those claims. The Episcopal School of Dallas (the school) seeks a writ of mandamus compelling the trial court to vacate an order denying its plea to the jurisdiction. In two issues, the school maintains that (i) it is a faith-based school and therefore the ecclesiastical abstention doctrine deprives the court of subject matter jurisdiction over the plaintiffs' claims arising from the school's decision to request a student's withdrawal for disciplinary reasons and (ii) there is no adequate remedy by appeal. Because the undisputed facts establish that (i) the school is a faith-based institution to which First Amendment protections apply, (ii) this dispute turns solely on the school's ability to manage its internal affairs, including its admissions decisions, and (iii) mandamus is appropriate when a court acts without subject matter jurisdiction, we sustain both issues and conditionally grant the requested relief. I. Background The school is a private, college preparatory school founded in 1974 by an Episcopal clergyman and a group of local Episcopalian leaders. It is a tax-exempt, non-profit corporation school. Plaintiff John Doe, Jr. (Doe) was a student at the school. Plaintiff John Doe is Doe's father. They are collectively the Does. Dishonesty, refusal to consent to a search, and drug use and possession violate school policy. Furthermore, the school's handbook provides that refusal to allow an interior vehicle search “will be cause for suspension, termination of campus driving and parking privileges, and potential reconsideration of student's enrollment at [the school].” The handbook also provides for punishing certain infractions, including dishonesty and drug possession. Moreover, parents and students acknowledge in writing that the school may impose disciplinary consequences, including termination of enrollment, for conduct the school deems unsatisfactory. Additionally, the school's enrollment and tuition agreement provides that: *2 The enrollment of Student is entirely at ESD's discretion and the school reserves the right to dismiss Student or to discontinue further enrollment at any time for conduct ... whether on or off school property, which it deems ... unsatisfactory. The agreement further provides that the school “may terminate Student's enrollment for any reason,” and “students may be disciplined including but not limited to suspension and expulsion.” The school sent upper school parents, including John Doe, a letter stating among other things “that in most cases, students should be given a chance to redeem themselves” and that “we are not a zero tolerance school.” (Emphasis added). Doe was a student during the 2014-2015 school year. One day, he violated school policy by leaving campus for lunch without permission. A neighbor reported to the school that two students (one of whom was later proved to be Doe) were parked in front of her house smoking marijuana, and she called the police. Doe initially denied leaving campus, but a security camera showed otherwise. Appendix A to John Doe's Petition for Writ of Mandamus Page 6 of 15 6 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  42. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) Doe then admitted leaving but denied smoking marijuana. Doe's companion, however, admitted smoking marijuana and said that Doe participated. Doe also refused a search of his vehicle. Although Doe passed an initial urine drug test, the school later learned that he used another student's specimen for the test. Doe failed a second drug test. The school subsequently asked Doe to withdraw from school in lieu of being expelled. Doe withdrew. Based on these and additional related facts, the Does sued the school, head of school Meredith Cole, head of upper school Donna Hull, and the assistant head of upper school Jeffrey Laba (collectively, Relators). The lawsuit complains about Relators' disciplinary actions and the application of the school's policies and procedures. The suit alleges these claims against some or all Relators: (i) breach of fiduciary duty, (ii) aiding and abetting fiduciary breaches, (iii) breach of express warranties under the Texas Deceptive Trade Practices Act, (iv) negligent misrepresentation, (v) fraud, (vi) negligent hiring and supervision, (vii) negligence and gross negligence, (viii) tortious interference with a contract, (ix) breach of contract, (x) promissory estoppel, unjust enrichment, money had and received/assumpsit, (xi) intentional infliction of emotional distress, and (xii) respondeat superior and vicarious liability. The Does also requested a declaratory judgment concerning the parties' rights and obligations under the school's enrollment agreement and student handbook, and a declaration concerning damages. The school counterclaimed for breach of the tuition and enrollment agreement.2 Five months before the dispositive motion deadline and after considerable discovery was done, Relators filed a plea to the jurisdiction and motion to dismiss asserting that the ecclesiastical abstention doctrine deprives the court of subject matter jurisdiction. After additional jurisdiction-based discovery and a hearing continuance, the court heard and denied the motion and plea. The court also denied a motion to stay the proceedings pending mandamus review. *3 Relators' mandamus petition followed and is at issue here. We stayed the trial court proceedings pending our mandamus determination. II. Analysis A. Standard of Review [1][2] Mandamus is warranted when the relator demonstrates a clear abuse of discretion and there is no adequate appellate remedy. E.g., In re St. Thomas High School, 495 S.W.3d 500, 506 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding). A trial court lacks discretion and must dismiss the case as a ministerial act when it lacks subject matter jurisdiction. Id. Mandamus is thus proper when a trial court acts without subject matter jurisdiction. Id. [3] “Lack of jurisdiction may be raised by a plea to the jurisdiction when religious-liberty grounds form the basis of the jurisdictional challenge.” Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007). [4][5][6][7][8] We review de novo a plea to the jurisdiction questioning the trial court's subject matter jurisdiction. SeeTexas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In doing so, we focus first on the plaintiff's petition to determine whether the pled facts affirmatively demonstrate that subject matter jurisdiction exists. Id. at 226. We construe the pleadings liberally in the plaintiff's favor. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court may consider evidence beyond the pleadings and must do so when necessary to resolve the jurisdictional issues raised. Id. at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). The court must grant the plea as a matter of law if there is an incurable jurisdictional defect. SeeSt. Thomas, 495 S.W.3d at 506. Appendix A to John Doe's Petition for Writ of Mandamus Page 7 of 15 7 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  43. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) B. The Ecclesiastical Abstention Doctrine [9][10][11] The ecclesiastical abstention doctrine arises from the First Amendment's Free Exercise Clause and applies to the states through the Fourteenth Amendment. See U.S. CONST. amends. I, XIV; St. Thomas, 495 S.W.3d at 507. Courts “give great deference to the First Amendment's freedom of religion guarantee.” In re Godwin, 293 S.W.3d 742, 745 (Tex. App.—San Antonino 2009, orig. proceeding). Among its prohibitions, the Free Exercise Clause precludes government action that burdens the free exercise of religion “by encroaching on the church's ability to manage its internal affairs.” Westbrook, 231 S.W.3d at 395. [12] This doctrine thus “prevents secular courts from reviewing many types of disputes that would require an analysis of theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.” Patton v. Jones, 212 S.W.3d 541, 547–48 (Tex. App.—Austin 2006, pet. denied). [13] “Although wrongs may exist in the ecclesiastical setting, 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 that it overshadows the inequities that may result from its application.” Williams v. Gleason, 26 S.W.3d 54, 59 (Tex. App.— Houston [14th Dist.] 2000, pet. ref'd); accord, In re Godwin, 293 S.W.3d at 750. Thus, courts accept as final and binding an ecclesiastical institution's decisions on such matters. SeePatton, 212 S.W.3d at 547. *4[14][15] In that regard, the doctrine does not foreclose civil court subject matter jurisdiction over all disputes involving religious entities. Because churches, their congregations, and their hierarchies exist and function within the civil community, they are amenable to rules governing civil, contract, and property rights in appropriate circumstances. St. Thomas, 495 S.W.3d at 507. To determine whether the doctrine applies, courts must analyze whether a particular dispute is ecclesiastical in nature or simply a civil dispute in which church officials happen to be involved. Id. As an initial matter, the Does urge that the doctrine does not apply here because the school is not a church, owned by a church, or run by a church, and does not have religion as its “primary purpose.” In short, the Does contend, without supporting authorities, that the doctrine applies only to churches or church owned entities. But our sister courts routinely apply the doctrine to dismiss suits against religious schools or officials with authority over religious schools. SeeSt. Thomas, 495 S.W.3d at 509 (citing cases). We agree with their reasoning. Thus, our first question is whether the record conclusively establishes that the doctrine applies to this school. C. Is the school a faith-based institution? 1. Facts Showing that the School Is Faith-Based [16] The record establishes these facts bearing on whether the school is a faith-based institution entitled to First Amendment protection: One, the school's articles of incorporation state that its “primary purpose is to operate a non-profit, college preparatory middle and upper school, committed to the Christian gospel as interpreted by the Protestant Episcopal Church of the United States of America.” Two, its bylaws require that at “least one-half of all directors serving at any time shall be communicants of the Episcopal Church in the United States of America.” Three, the school's stated mission is to create a “Christian community that places the honor and worship of God at the center of its common life” and embraces “diversity and inclusion” and the school's founding belief that “[a]ll children are made in the image of a loving God.” The mission statement further refers to “faith as [an] essential element of student development.” The school's founding tenets are daily worship, community, ethical decision making, and service, and it Appendix A to John Doe's Petition for Writ of Mandamus Page 8 of 15 8 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  44. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) emphasizes a “faith-centered environment” that promotes “[n]urturing a spiritual relationship with God through the use of the Book of Common Prayer.” Four, students and faculty are required to attend and participate in daily chapel, and students must complete mandatory religious curriculum requirements. The religious curriculum includes courses studying (i) major world religions, (ii) Jewish and Christian texts, (iii) ethical reasoning, and (iv) religious experiences. Five, the Dallas Episcopal Diocese assigns ordained Episcopal priests to conduct chapel and Eucharist services at the school. A student's absence from chapel is considered an unexcused absence subject to disciplinary action. Six, the Senior Chaplain is “responsible for pastoral care and chapel services” at the school and “oversees all spiritual components within the [SCHOOL'S] program.” The Senior Chaplain also sits on the school's Daily Worship and Religious Life Board Committee and uses the Book of Common Prayer to design and implement daily worship at the school. Seven, both the Senior Chaplain and the lower school Chaplain conduct daily worship and monthly or weekly Eucharist services. The Dallas Episcopal Diocese Bishop also periodically conducts Eucharist services. *5 Eight, beginning in 1995, the lower school operated on church grounds pursuant to an occupancy agreement between the school and St. Michael and All Angels Episcopal Church, with the church premises being used “for the purpose of operating an Independent Episcopalian co-educational school ... through Grade 6 substantially in accordance with [the school's] Mission Statement.” Nine, that occupancy agreement states that “[a]ll spiritual instruction at the School will be in conformity with the doctrine, discipline and worship of the Episcopal Church of the United States of America. In the event of a dispute regarding spiritual instruction, the matter shall be settled by appeal to the Bishop of the Episcopal Diocese of Dallas and his determination shall be final in the matter.” Ten, the school is a member of the National Association of Episcopal Schools (NAES) and its head of school is a NAES board member. NAES confirms that “[a]s embodiments of the Christian faith, Episcopal schools ... serve God in Christ in all persons, regardless of origin, background, ability, or religion” and “strive for justice and peace among all people and to respect the dignity of every human being.” Eleven, the school's website further emphasizes that the school is a faith-based institution. Twelve, the school's symbol and motto are faith-based, and both the student and faculty handbooks confirm the school's faith-centered mission and founding tenets. Thirteen, as a condition of enrollment, students and their parents agree to abide by the code of conduct, the student handbook, and other “principles and standards” of the school community. Indeed, all members of the school's community commit to the code of conduct, which recognizes “everyone is created in the image of God” and requires the school community members to “conduct themselves with honor, respect, and integrity in a manner consistent with the ideals of [THE SCHOOL'S]'s Mission Statement.” This code of conduct appears in the student handbook and incorporates, among other things, an academic honor pledge, sportsmanship expectations, and state laws related to illegal drugs and underage drinking. 2. The Does' Proffered Facts [17] The Does, however, rely on the following to argue that the school is not a faith-based institution or a church: Appendix A to John Doe's Petition for Writ of Mandamus Page 9 of 15 9 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  45. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) • The school represents to the IRS that it is a school, not a church;3 • The majority of the school's students are not Episcopalian; • The school is not part of the Dallas Episcopal Diocese and receives no money from the Diocese; • The Episcopal church does not own, operate, or control the school; • None of the school's board members are Episcopal clergy, and only half are Episcopalian; • The teachers and staff need not be Episcopalian; • The school's two chaplains are the only two school employees who are Episcopal clergy; • The school does not give admission preference or discounts to Episcopalian students, actively recruits students of all faiths, and makes no effort to track the religious affiliation of its faculty and staff; • The school does not prepare students for the seminary; • The school has obtained bond financing “holding itself out to local government entities as a secular scholastic institution;”4 • No member of the Episcopal clergy was consulted or involved in the school's decision regarding Doe, Jr.; • Chapel services often include secular topics; • Over 85% of the schools' students in 2016–17 self-identified as non-Episcopalians; *6 • When its action regarding Doe, Jr. was taken, the school's board chair was Jewish, and the board consulted non- clergy, outside lawyers regarding that decision; and • Only one unit of religious instruction (out of a total of twenty-four units) is required, and none of the offered religion courses focus exclusively on the Episcopal denomination. These facts are similar to St. Thomas's facts in the sense that they show the school is in fact a school and not a church as such. But these facts similarly do not negate the fact that the school endeavors to imbue its students and staff with Christian principles and values even if those persons do not already subscribe to them. SeeSt. Thomas, 495 S.W.3d at 508-09. The record thus leaves only one reasonable conclusion: the school's purpose and mission are religious. And that the school may not be an affiliate of or have a formal legal relationship with a specific church does not undermine the factual conclusion that it is a faith-based institution. Id. 3. St. Thomas and In re Vida The Does argue that RELATORS's reliance on St. Thomas, 495 S.W.3d at 502 and In re Vida, No. 04-14-00636-CV, 2015 WL 82717, at *2 (Tex. App.—San Antonio Jan. 7, 2015, orig. proceeding) (mem. op.) for the premise that the ecclesiastical abstention doctrine warrants dismissal here is misplaced. We disagree. a. In re Vida Appendix A to John Doe's Petition for Writ of Mandamus Page 10 of 15 10 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  46. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) In re Vida involved a lawsuit filed by the parents of a child who was not promoted to first grade in a Catholic school. The parents' claims were based on the school's enforcement of the age requirements in the school's policy manual. They claimed that the requirement was purely secular, raised no religious objections, and was unrelated to church governance. The San Antonio Court of Appeals disagreed and held that the ecclesiastical abstention doctrine deprived the court of jurisdiction. In re Vida, 2015 WL 82717, at *2. *7 In so doing, the court noted that the analysis requires considering both the substance and nature of the claim and the effect of a judicial resolution. Id. at *2–3. The court further held that “if a judicial resolution of the claim will interfere with a church's management of its internal affairs or encroach upon the church's internal governance, the court may not exercise jurisdiction over the claim”—even if the decision requires no analysis of religious doctrine. Id. Finally, the court held that the doctrine applies equally to Catholic schools as well as churches. Id. at *3. b. St. Thomas St. Thomas concerned a lawsuit filed by the parents of a student expelled from a Catholic high school. The school filed a plea to the jurisdiction invoking the ecclesiastical abstention doctrine. The trial court denied the plea and entered a temporary injunction allowing the student to attend for the remainder of the semester. St. Thomas, 495 S.W.3d at 504. The Houston Fourteenth District Court of Appeals, however, held that the doctrine applied and granted the school's request for mandamus relief. Id. at 514. In doing so, the court rejected the parents' characterization of the lawsuit as a “purely commercial dispute regarding an agreement for [the school] to prepare [the student] for college” and noted that the school's status as a Catholic high school did not place it outside the ecclesiastical abstention doctrine. Id. at 513. To this end, the court stated, “No less than a Catholic church [the school] is a religious institution enjoying First Amendment protection for the free exercise of religion.” Id. at 509. The Does argue that St. Thomas is distinguishable because they are not seeking specific performance and Doe has already graduated from high school. They further assert that unlike this case, St. Thomas involved a significant spiritual and ecclesiastical component. The Does' analysis, however, misses the point. While St. Thomas was partially based on the fact that the parents' letter to the school that led to the student's expulsion included “spiritual standards and references to Catholic teaching,” that was not the court's emphasis. Specifically, the court noted that the key inquiry is whether a judicial resolution will encroach on the institution's governance and affairs, and concluded that, “[i]n addition to express references to spiritual standards and Catholic teaching, this record demonstrates impermissible interference with [the school's] management of its internal affairs and encroachment upon its internal governance.” Id. at 513. Here, the policies that form the basis of the Does' complaints are based on spiritual references and the teachings of the Episcopal church. In fact, the Does tacitly acknowledge this fact by complaining that the administrators failed “to serve as examples of how students should direct their lives spiritually and morally.” c. The Does' Additional Arguments The Does next argue that the school's “primary focus is not religion” and seem to suggest that the school is not “Episcopal enough” to be categorized as a faith-based institution because, unlike the school in St. Thomas, the school does not offer a traditional Episcopal education with traditionally structured daily worship. The Does also underscore the school's inclusive admission policy, the number of students and faculty who are not members of the Episcopal faith or are not Appendix A to John Doe's Petition for Writ of Mandamus Page 11 of 15 11 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  47. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) Episcopal clergy, and the absence of a strictly Episcopal curriculum as also demonstrating that the school is not a faith- based school. But the school's non-discriminatory, inclusive philosophies do not mean it is not a religious institution; it is just an inclusive one. And the Does cite no authority for the premise that the ecclesiastical abstention doctrine requires a showing that an institution's “primary purpose” is religion. More importantly, asking this Court to examine and compare the contours of different religions or measure the internal application of Episcopal precepts to the school's policies or its conduct here seeks to have us engage in the exact analysis the First Amendment precludes. *8 In sum, it is undisputed that the school is not a church. But the record establishes that it is nonetheless a faith-based institution “enjoying First Amendment protection for the free exercise of religion.” SeeSt. Thomas, 495 S.W.3d at 509. Thus, contrary to the Does' assertion, we cannot conclude that this case lacks an “ecclesiastical component.” D. The Nature of the Does' Claims [18] Next, we consider the substance and nature of the Does' claims, all of which concern Doe's disciplinary action. The Does characterize the lawsuit as a “secular breach of contract and tort” action, and they allege that the school's representations that it had a “forgiving and non-punitive disciplinary system and was not a ‘zero tolerance’ school” were false. According to the Does, Doe was treated differently than other students with similar disciplinary infractions and, contrary to the school's stated policies, was expelled based on a solitary instance of alleged bad behavior. The facts, however, conclusively establish that this dispute derives solely from the calculus of the school's internal policies and management of its internal affairs, all directed at the school's decision regarding whether Doe should be a member of the school community. Thus, this dispute fits entirely within the parameters of a dispute for which the ecclesiastical abstention doctrine applies. SeeWestbrook v. Penley, 231 S.W.3d 389, 395 (Tex. 2007). Nonetheless, the Does describe their claims as “simply civil law claims in which church officials happen to be involved,” similar to the claims in Shannon v. Memorial Drive Presbyterian Church, 476 S.W.3d 612, 619 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) and Tilton v. Marshall, 925 S.W.2d 672, 677–79 (Tex. 1996). We are not persuaded because Shannon and Tilton did not involve the internal governance and affairs of a faith-based institution. For example, Shannon involved a former employee's tort and breach of contract suit against a church arising out of a breach of a settlement agreement containing a non-disparagement clause. Shannon, 476 S.W.3d at 619. Because the suit required only the court's interpretation of the contract and did not require the court's intervention in hiring, firing, discipline, or administration of the church's clergy, or matters of morality or church doctrine, the court concluded that the matter was a “civil law controversy in which Church officials happened to be involved.” Id. at 624–25. Shannon is distinguishable from the instant case. That case did not require encroaching on a faith-based institution's management of its internal affairs, but rather a secular contract breach. As the St. Thomas court observed, however, the “secular contract” approach does not apply when the claimed breach of contract arises from an enrollment agreement at a faith-based institution. SeeSt. Thomas, 495 S.W.3d at 509. Likewise, Tilton is factually distinguishable from the present case. In Tilton, several television viewers sued evangelist Robert Tilton for fraud, conspiracy, and intentional infliction of emotional distress regarding “prayer cloths” he sold and promised to bless. 925 S.W.2d at 675–76. The court held that the ecclesiastical abstention doctrine applied to some, but not all of the claims. Id. at 679–80. Specifically, the court held that claims concerning Tilton's representations that he would perform certain concrete acts such as personally reading, touching, and praying over plaintiffs' prayer requests were not claims based on religious doctrine or belief, but rather alleged promises to perform certain acts. Id. On the other hand, claims based on Tilton's statements of religious doctrine were not subject to court review because such claims would require the fact-finder to Appendix A to John Doe's Petition for Writ of Mandamus Page 12 of 15 12 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  48. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) resolve the truth or falsity of religious doctrine or beliefs, an inquiry that is constitutionally proscribed. Id. Thus, the court conditionally granted the writ in part, directing the trial court to dismiss the plaintiffs' conspiracy and intentional infliction of emotional distress claims. Id. at 682. *9 This case, however, requires no such claim fracturing. The Does' claims all concern a faith-based organization's internal affairs, governance, administration, membership, or disciplinary procedures and are protected religious decisions. Thus, the Does' suit has no secular aspect for the courts to consider. In particular, the Does' breach of fiduciary duty claims concern allegations of fabricated evidence to justify Doe's expulsion, i.e., internal application of internal policies. Likewise, the DTPA, fraud, negligent misrepresentation, tortious interference, breach of contract, promissory estoppel, unjust enrichment, and intentional infliction of emotional distress claims are all based on the school's application of internal policies, procedures, and guidelines set forth in the code of conduct and school handbooks. For example, the Does allege that the school committed fraud “by and through the School's Student Handbook, with the School's Code of Conduct ... and the School's policies” by “maintain[ing] secret or alternative policies and procedures related to discipline.” Similarly, the Does contend that the school was negligent and grossly negligent in providing “the education services outlined in the school's policies and procedures.” Indeed, all of their claims are based on the same common theme. And the Does do not explain how a court might resolve any of these claims without referring to the school's internal policies and governance of its own affairs. We acknowledge that the dispute does not expressly concern religious doctrine in all respects. But we also note that St. Thomas and Vida did not do so either. St. Thomas involved the expulsion of a student based on the school handbook. Vida concerned age requirements in the school's policy manual. And as the St. Thomas court observed, “exclusive focus on the presence or absence of an express dispute concerning religious doctrine demonstrates an unduly narrow conception of [the doctrine's] applicable protections.” St. Thomas, 495 S.W.3d at 509. Finally, the Does refer to a county court jury verdict against the school to argue that the school ignores “infamous and on-point local precedent” establishing that it cannot rely on the ecclesiastical abstention doctrine. However, trial court judgments are not “binding precedent.” See, e.g.,Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) (after a principle, rule or proposition of law has been decided by the Supreme Court or the highest court in a state, the decision is accepted as binding precedent); Dee v. Crosswater Yacht Club, LP, No. 03-10-00796-CV, 2012 WL 1810213, at *5 (Tex. App.— Austin May 18, 2012, no pet.) (mem. op.) (decisions of trial court not legally binding precedent for appellate court). This argument, therefore, adds nothing to our analysis. We have concluded that the school is a faith-based school. Having examined the substance and nature of the Does' claims, we further conclude that resolving those claims would require a court to pass judgment on the school's internal affairs and governance—matters exclusively within the province of an ecclesiastical institution. Accordingly, the ecclesiastical abstention doctrine applies, the trial court lacks subject-matter jurisdiction, and it abused its discretion by denying Relators' plea to the jurisdiction and motion to dismiss. *10 Having concluded that the ecclesiastical abstention doctrine applies, we next consider whether Relators are entitled to mandamus relief. E. Are Relators entitled to mandamus relief? [19][20] The supreme court rejects a categorical approach to determining when mandamus review is appropriate. SeeIn re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 469 (Tex. 2008) (orig. proceeding). Unlike a direct appeal, which is a matter of right, mandamus is an extraordinary remedy, intended to be available in only limited circumstances at the court's discretion. SeeIn re Reece, 341 S.W.3d 360, 374 (Tex. 2011) (orig. proceeding). Thus, mandamus review is reserved for trial court errors where the very act of proceeding to trial, regardless of the outcome, would defeat the substantive right involved. SeeIn re Schmitz, 285 S.W.3d 451, 459 (Tex. 2009) (orig. proceeding). Appendix A to John Doe's Petition for Writ of Mandamus Page 13 of 15 13 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  49. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) [21] To obtain mandamus relief, a relator must show either (i) the underlying order is void or a clear abuse of discretion and, (ii) no adequate appellate remedy. SeeIn re Nationwide Insurance Co., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); see alsoSt. Thomas, 495 S.W.3d at 514 (mandamus is generally proper if a trial court lacks subject matter jurisdiction over the underlying proceeding, and relator need not establish lack of an adequate appellate remedy); In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding) (if a court issues an order beyond its jurisdiction, the relator need not show there is no adequate remedy by appeal). We have already concluded that the trial court lacks subject matter jurisdiction. Therefore, mandamus relief is appropriate unless the Does established a bar that would defeat the doctrine's application in this case. F. Does laches bar the requested relief? [22] The Does argue that Relators' “unexplained nineteen month delay” in raising the ecclesiastical abstention doctrine precludes the requested relief based on laches. [23][24][25] Laches is an equitable remedy that prevents asserting a claim due to the lapse of time. SeeBluebonnet Sav. Bank, F.S.B. v. Grayridge Apt. Homes, Inc., 907 S.W.2d 904, 912 (Tex. App.—Houston [1st Dist.] 1995, writ denied). For laches to bar a mandamus action, a real party in interest ordinarily must show (i) the opposing party's unreasonable delay in asserting its rights and (ii) the real party in interest's good faith and detrimental change in position because of the delay. In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (per curiam). Whether a party's delay in asserting its rights results in laches depends on the circumstances. In re Oceanografia, S.A. de C.V., 494 S.W.3d 728, 730 (Tex. 2016) (orig. proceeding) (per curiam). It is not accurate to state that Realtors offered no explanation for the delay in the trial court. To the contrary, they explained that they were waiting to complete sufficient discovery to present a comprehensive plea to the jurisdiction. Relators also said that during that time, the St. Thomas case was decided, which they believed confirmed the strength of its jurisdictional argument. Therefore, Realtors maintain there was no unreasonable delay. Although the Does claim that they have “undoubtedly” been “severely prejudiced” by the delay, and they “expended significant resources” responding to Realtors' summary judgment motion before the case was stayed, they do not identify any good faith and detrimental change in position resulting from the delay in their lawsuit. *11 In fact, the Does opposed Relators' requested stay of the trial court proceedings pending resolution of this issue, and requested a continuance and further discovery before the plea to the jurisdiction was heard by the court. Consequently, they are at least partially responsible for some of the resource expenditure about which they now complain. [26] More importantly, however, the relevant time period is not measured from the time the ecclesiastical abstention doctrine was raised in the court below.5 Instead, unreasonable delay is calculated with reference to the mandamus petition's filing, not the issue that precipitated the request for a writ. See, e.g.,In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (measuring time between denial of reconsideration motion and mandamus filing and concluding two months not unreasonable delay); In re Sthran, 327 S.W.3d 839, 846 (Tex. App.—Dallas 2010, orig. proceeding) (measuring time between trial court's order and filing mandamus petition and concluding no unreasonable delay). Here, Realtors filed the mandamus petition two weeks after the plea to the jurisdiction was denied. That does not constitute unreasonable delay. Therefore, laches does not bar the requested relief. Appendix A to John Doe's Petition for Writ of Mandamus Page 14 of 15 14 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  50. In re Episcopal School of Dallas, Inc., --- S.W.3d ---- (2017) III. Conclusion Mandamus relief is proper here. We lift our May 17, 2017 order staying all trial court proceedings, and conditionally grant Relators' petition for writ of mandamus. We order the trial court to issue orders within fifteen days (i) vacating its April 24, 2017 Order denying Relators' plea to the jurisdiction, and (ii) granting the Realtors' plea to the jurisdiction and dismissing the case. A writ will issue only if the trial court fails to comply. All Citations --- S.W.3d ----, 2017 WL 4533800 Footnotes 1 This Court has previously applied the ecclesiastical abstention doctrine to churches. SeeReese v. Gen. Assem. of Faith Cumberland Presbyterian Church in Am., 425 S.W.3d 625, 627 (Tex. App.—Dallas 2014, no pet.); Jennison v. Prasifka, 391 S.W.3d 660, 661 (Tex. App.—Dallas 2013, no pet.); Fesseha v. Ethiopian Orthodox Tewahedo Debre Meheret St. Michael's Church, No. 05-10-00202-CV, 2011 WL 2685969, at *3 (Tex. App.—Dallas July 12, 2011, no pet.) (mem. op.); Retta v. Mekonen, 338 S.W.3d 72, 77 (Tex. App.—Dallas 2011, no pet.). But we have not considered whether the doctrine applies to a faith-based school. We treat the counterclaim as conditionally abandoned since the school asked us to order the trial court to dismiss the action. 2 3 The school checks the “school” box on its tax return form 990 instead of “church.” But as St. Thomas and other Texas cases hold, being a faith-based school instead of being a church does not deny the school First Amendment freedom of religion protection. SeeSt. Thomas, 495 S.W.3d at 509. According to the Does, the school obtained bond funding by representing to local governments that it is a secular school and therefore should be quasi estopped to contend otherwise. But the Does' record cites do not support that factual premise. Specifically, the Does refer to a series of request for admission responses concerning the school's finances. The school, however, denied making any representations to governmental entities that the school was a secular institution. The school admitted that in at least two instances it benefitted from obtaining tax exempt financing from the governmental entities, with the Does' apparently intended inference being that the school could obtain such financing only if it represented that it was a secular entity. But the Does cite no authority for that premise, and the school made no such admission. Furthermore, the school cites Mitchell v. Helms, 530 U.S. 793, 829, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) for the premise that it is permissible for loans to be made to religious schools under the Education Consolidation and Improvement Act. It also cites LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 229 (3rd Cir. 2007) for the premise that religious organizations may engage in secular activities without forfeiting protections. Further, a lack of subject matter jurisdiction can be raised at any time. SeeCarroll v. Carroll, 304 S.W.3d 366, 367 (Tex. 2010). 4 5 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Appendix A to John Doe's Petition for Writ of Mandamus Page 15 of 15 15 © 2017 Thomson Reuters. No claim to original U.S. Government Works.

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