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Click here for the full text of this decision FACTS:Larinda Hawkins began visiting informally with Darrell Wait, the pastor at Trinity Baptist Church, where Larinda also worked, to talk about marital problems she’d been having with her husband, Mark. Soon, Larinda was regularly meeting with Wait three times a week behind closed doors. Wait also soon began counseling Mark. Several employees at Trinity complained to Wait that the closed-door meetings were inappropriate, and another church member said the same thing to Larinda, but both Wait and Larinda denied any impropriety. Shortly thereafter, Wait invited Larinda to his home and asked her to perform oral sex on him to help him understand the way she described performing it on Mark. Larinda did so. A few days later, during a counseling session, Mark told Wait he’d had an affair during his marriage to Larinda. Wait told Larinda about the affair the next day, and Larinda confronted Mark at home, resulting in Mark moving out. The day after that, after telling Wait that Mark moved out, Larinda and Wait had sex at her house. When Mark returned home two days later, she told him about her and Wait. Mark, Larinda and Wait all met together at Wait’s house two days after that to discuss the affair; later that night, Larinda and Wait met at a hotel to have sex again. Wait resigned the next month after Mark told another Trinity employee about Wait’s and Larinda’s affair. Mark and Larinda then sued Wait and Trinity for violations of the Sexual Exploitation by mental Health Services Provider Act for negligent hiring and retention and for breach of fiduciary duty. Though the court first denied the traditional and no-evidence motions for summary judgment by Trinity, and the traditional summary judgment motion for Wait, the trial court eventually granted all three. HOLDING:Affirmed in part; reversed and remanded in part. In first construing the claims Larinda made against Wait, the court quoted at length from the act, found at Civ. Prac. & Rem. Code ��81.001 – 81.009. Larinda claims that Wait is liable under the statute because it includes “members of the clergy” within the definition of “mental health services provider” under �81.001(2)(E). Wait, on the other hand, relies on �81.001(7), which says the definition of “mental health services” does not include those services provided by a member of the clergy related to “religious, moral, and spiritual counseling, teaching, and instruction.” The court rules against Wait because he did not establish how his services in counseling Larinda about her marriage constituted religious, moral and spiritual counseling, teaching and instruction. Furthermore, the court rejects Wait’s assertion that the First Amendment and the Texas Constitution’s religious freedom clauses prohibit finding him liable. Neither provision categorically insulates religious relationships from judicial scrutiny, and, under scrutiny, Wait failed to establish why his conduct fell outside the definitions offered under the Act. Consequently, the court reverses the summary judgment for Wait on Larinda’s claims related to the act. However, the court affirms the summary judgment for Wait and for Trinity on Larinda’s claim that Wait breached his fiduciary relationship with her in the context of the pastor-member relationship. Here, the court says, the Free Exercise Clause of the First Amendment does come into play because the court would have to establish a standard of care appropriate for a church pastor to his parishioners. The court likewise affirms summary judgment for Wait on Mark’s claim for breach of fiduciary duty for the same reasons given above; however, the court does say that Wait’s conduct in telling Larinda about Mark’s affair “was certainly reprehensible from a moral viewpoint.” The court also sustains the summary judgment for Trinity on Mark’s and Larinda’s claim that the church was vicariously liable for Wait’s violations of the act. The court points out that an employer is liable under the act when it fails to inquire into an employee’s background or when it has reason to know of the employee’s sexual exploitation but fails to act. The summary judgment evidence showed that Wait was hired solely to provide counseling, teaching and instruction that was religious, moral and spiritual; he was not hired to provide mental health counseling or services. “A member of the clergy providing religious, moral and spiritual counseling, teaching and instruction is not part of the definition of ‘mental health services’ as provided in section 81.001 of the Act. There is no evidence in the record to show Trinity hired Wait for any purpose other than to provide religious, moral and spiritual counseling, teaching and instruction to its members. Thus, no duty to inquire of Wait’s past sexual exploitation arose under section 81.003 of the Act.” OPINION:Worthen, J.

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