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Click here for the full text of this decision FACTS:Peggy Lee Penley was a member of the CrossLand Community Bible Church. Penley signed a membership questionnaire and answered affirmatively the question of whether she would be willing to abide by the church constitution. An applicant for church membership must share a willingness to abide by the church’s constitution, including its disciplinary procedures. The disciplinary policy, which is said to be based on Biblical teachings, requires an initial effort to “restore” members who stray, but then requires the church elders to revoke membership and make an announcement to the membership. The constitution also provides that membership is terminated upon a member’s request. If the member does not resign and the elders feel that he or she should, the elders will remove the member and announce that decision to the congregation. When Penley physically separated from her husband, they both went to C.L. “Buddy” Westbrook Jr. for counseling. Westbrook was not only the church pastor and an elder, but he also held himself out as a licensed professional counselor who provided secular marriage counseling. After three months, during which time Penley alleged that Westbrook gained her trust and confidence, and engaged in secular professional marriage and family counseling services, Penley nonetheless decided to get a divorce. Westbrook recommended a family law attorney to Penley. Penley told Westbrook that she was also terminating her membership in the church. Two weeks later, Westbrook and the other church elders published a letter in the church bulletin informing the congregation that Penley intended to divorce her husband, that there was no Biblical basis for the divorce and that she had engaged in a Biblically inappropriate relationship with another man. The letter further recommended that the congregation should shun Penley to force her to repent and return to the church. A year later, Penley sued the church, Westbrook and the other church elders, alleging defamation, breach of fiduciary duty and intentional infliction of emotional distress. She amended her petition later to include claims for invasion of privacy and negligence. The defendants filed pleas to the jurisdiction, claiming the First Amendment prevented judicial review of the case because Penley’s claims were ecclesiastical in nature. At a hearing on the jurisdictional challenges, the trial court upheld the defendants’ objections to testifying, again for First Amendment reasons. The trial court also prohibited Penley from testifying, though it did allow her to testify for the limited purpose of making a bill of exception. Eventually, the trial court dismissed the case for lack of jurisdiction. Through other post-judgment orders, all the defendants except Westbrook were dismissed from the case. HOLDING:Affirmed in part; reversed and remanded in part. The court first addresses whether the trial court erred in dismissing Penley’s professional negligence claim on the ground that it was barred by the First Amendment. Penley argues that her claim is not one for clergy malpractice, but one based on Westbrook’s negligence as a professional counselor providing secular counseling. The court finds that Westbrook’s plea to the jurisdiction on this issue is really a challenge to the adequacy of Penley’s pleadings, not the existence or absence of jurisdictional facts. The court thus examines Penley’s pleadings in detail to determine if she alleged sufficient facts that affirmatively demonstrate the trial court’s jurisdiction. In several instances in her pleadings, Penley discusses Westbrook’s professional counseling experience, and the secular nature of much of his marriage and family counseling. Penley alleges that Westbrook had a professional relationship with her, that she developed trust and confidence in Westbrook, and that he expressed love and affection for her. Westbrook was negligent, Penley’s pleadings continue, in failing to provide proper, adequate or safe counseling. Further, he made negligent misrepresentations to Penley and engaged in inappropriate comments and conduct during his counseling services. The court agrees with Penley that her pleadings set forth sufficient factual allegations to support her professional negligence claims against Westbrook. The court goes on to reject Westbrook’s argument that the Free Exercise Clause of the First Amendment immunizes him from suit. Westbrook’s argument focuses solely on the letter and the disciplinary process of the church, whereas Penley’s amendment pleading alleges facts and conduct independent of that process. Penley’s claim does not require a judicial review of such ecclesiastical issues such as the decision to discipline her, whether Westbrook followed the church constitution in disciplining her, or how to properly interpret some of the statements used in the letter. The court further finds that Penley’s pleadings of professional negligence are broad enough to include claims that Westbrook’s secular counseling fell below the standards of the Texas Licensed Professional Counselor Act. This claim is not one for clergy malpractice or negligence in providing pastoral counseling. Instead, Penley alleges that Westbrook provided negligent secular counseling and that his counseling services fell below the reasonable and prudent standards of care applicable to any licensed professional counselor under the same or similar circumstances. The court affirms the trial court’s dismissal in all other respects and without comment. OPINION:Anne Gardner, J.; Dauphinot, Gardner and Walker, JJ.

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