plaintiff's original petition and

CAUSE NO. 2014--

FIRST PRESBYTEzuAN CHURCH OFHOUSTON,

Plaintiff

PRESBYTERY OF NEV/ COVENANT, INC.,

Defendant

20 14 5 oJE4

IN THE DISTRICT

HARRIS COUNTY, TEXAS

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N+ruDICIAL DISTRICT

PLAINTIF'F'S VERIFIED ORIGINAL PETITION F'OR DECLARATORYJUDGMENT AND APPLICATION FOR TEMPORARY RESTRAINING

ORDER AND TEMPORARY AND PERMANENT INJUNCTION

Plaintiff First Presbyterian Church of Houston ("FPC") files this Verified Original

Petition for Declaratory Judgment and Application for Temporary Restraining Order and

Temporary and Permanent Injunction ("the Petition"), against Defendant Presbytery of New

Covenant, Inc. ("the Presbytery"). FPC would respectfully show the Court as follows:

I.

STATEMENT OF CLAIM

1. This lawsuit relates to property ownership. FPC seeks declantory judgment

recognizing its complete ownership of and right to determine the use and control of those assets

and properties held by and for the congregation of FPC, free of any claimed trust interest of any

kind in fbvor of the Presbyterian Church (U.S.A.) and allegedly enforceable by its district

administrative unit, the Presbytery of New Covenant, Inc. FPC further seeks a temporary

restraining order and temporary injunction to preserve the status quo pending a final judgment on

the merits. Absent such injunctive reliet Presbytery has threatened to form an administrative

commission to seize control of FPC solely because FPC seeks to have its property rights

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJLTNCTIVE RELIEF -

adjudicated. For this reason, FPC seeks to restrain the Presbytery and any of its agents or

representatives from taking any action that would alter or abridge the property rights of FPC as

they now stand and as determined by this Court.

II.

PARTIES

2. Plaintiff First Presbyterian Church of Houston is a non-prof,rt corporation

organized under the laws of the State of Texas, whose domiciliary address is 5300 Main Street,

Houston, Texas 77004.

3, Defendant Presbytery of New Covenant, Inc., is non-profit corporation organized

underthe laws of the State of Texas, whose domiciliary address is 1110 LovettBlvd., Houston,

Texas 77006. Presbytery may be served with citation through Lynn R. Hargrove, Registered

Agent for service of process, 1110 Lovett Blvd., Houston, TX77006.

ilI.

JURISDICTION AND VENUE

4. FPC's claims for declaratory and injunctive relief are brought pursuant to the laws

of the State of Texas and are properly founded upon the subject matter jurisdiction of this Court.

This Court may exercise personal jurisdiction over Presbytery, which maintains its principal

offrce in Texas and conducts business in Texas. Plaintiff seeks monetary relief of $100,000 or

less and non-monetary relief.

5. Veuue is proper in the Har¡is County civil district oourt beoause this suit contains,

in part, an action to quiet title to real property situated in Harris County, and the Defendant's

principal offrce is located in Harris County. Trx. Crv. Pnec. & Rerr¿. Copp $$ 15.002 & 15.011.

IV.

PLAINTIFF F,PC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTTVE RELIEF -

DISCOVERY AND DISCLOSURES

6. FPC moves this Court to order that discovery in this matter be conducted in

accordance with a Level 3 discovery control plan tailored by the court to the circumstances of the

suit. See Tex. R. Clv. P. 190.4.

7. FPC formally requests that Presbytery disclose, within frfty (50) days of service

of this request, the information or material described in Rule 19a.2@) - (l). Copies of any

documents produced in response to these requests must be produced before the expiration of fifty

days ofthe service hereofat the office ofthe undersigned counsel or ataplace otherwise agreed

upon by counsel.

V.

FACTS

Background

8. Plaintiff Houston church is a congregation of Presb¡erian church members duly

incorporated as a Texas non-profit corporation since January 4,1887. Before its incorporation,

FPC had existed as an unincorporated association of Presbyterian church members since the

congregation's organization on March 31, 1839.

9. At the time of FPC's founding, Texas was not yet a state, and FPC was organized

as an affrliated congregation of the "Presbyterian Church in the United States of America." After

Texas's accession into the United States, that denomination would later divide along Civil War

boundaries in the 1860's to eventually become the northern "United Presbyterian Church in the

United States of America" ("UPCUSA") and the southern "Presb¡erian Church in the United

States" ("PCUS"). FPC followed the southern PCUS denomination until June 10, 1983, when the

PCUS formally reunited with the UPCUSA to form the Presbyterian Church (U.S.A.)

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJIINCTM RELIEF -

("PCUSA"). FPC has been affiliated with the PCUSA denomination since that date.

10. Defendant Presbytery is a district administrative unit of the PCUSA, whose

membership includes approximately 96local Presbyterian congregations in 29 Texas counties. It

is one of 173 such geographically-organized presbyteries in the PCUSA. Under the goveming

constitution of the PCUSA, the local presbytery is responsible for waiving or seeking

enforcement of any trust claim of the denomination against a local congregation. See Exhibit D

at 2, PCUSA Const. $ G-4.0207.

1 1. The different administrative units in the Presbyterian denomination are variously

called "courts," "councils," or "governing bodies." They are of four types, each of widening

geographic scope: sessions, presbyteries, synods, and the General Assembly. Individual

Presbyterian congregations operate through their sessions, which are comprised of members of

the congregation elected as "elders" to govern and act on behalf of the congregations. 173

regional presbyteries oversee the spiritual and moral life of local congregations, and the

presbyteries are in turn overseen by the 16 geographically-organized synods. Lastly, the General

Assembly, a body that convenes every other year and operates on a national level, reviews the

work of synods, addresses spiritual controversies, and otherwise performs those acts delegated to

it by the PCUSA Constitution. The PCUSA Constitution, which is the goveming document of

the PCUSA, is divided into two parts: (1) Part I - the Book of Confessions, and (2) Part 2 - the

Book of Order,which was called the Book of Church Order in the PCUS,

Property Trusts in the PCUSA

12. Property disputes between PCUSA presb¡eries and PCUSA congregations are

not uncommon. In nearly all cases, the dispute centers around the existence----or lack thereof---of

a trust, which the PCUSA alleges to exist for its benefit over.all property held by the individual

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AI{D APPLICATION FOR TRO AND INJIJNCTM RELIEF -

(particular) churches. See, e,g., Windwood Presbyterian Church, Inc. v. Presbyterian Church

(U.S.A.),01-10-00861-CV, 2014 WL 47750, _ S.W.3d. _ (Tex. App. - Houston flst Dist.],

Jan. 7, 2014); Caruollton Presbyterian Church v. Presbytery of S. Louisiana of Presbyterian

Church (USA), 77 So. 3d 975 (La. Ct. App. 20ll), Heartland Presbytery v. Gashland

Presbyterian Church, 364 S.V/.3d 57 5, 593 (Mo. Ct. App. 2012).

13, From the first General Assembly convened in 1789 through 1981, no Presbyterian

constitution contained any express reference to a trust. However, in 1982, the PCUS Constitution

was amended to add a "trust clause." Se¿ Exhibit A $$ 2I.264-21,268.

14. The trust clause adopted by the PCUS in 1982 stated:

All property held by or for a particular church, whether legal title is lodged in acorporation, a trustee or trustees, or an unincorporated association, and whetherthe property is used in programs of the particular church or retained for theproduction of income, is held in trust nevertheless for the use and benefit of the

lPCUSI.

Exhibit B at229, $ 6-3; Exhibit C at89, $ 6-3.

15. Although this trust clause forms the basis of all modern PCUSA claims to local

I

church property,- the PCUS repeatedly assured local congregations in 1982 that the amendments

including the trust clause changed nothing. See Exhibit Y at 2 ("These amendments do not give

Presbytery . . . any jurisdiction over property."); Exhibit Y at 1 ("These amendments do not in

any way change the fact that the congregation, in the [PCUS], owns its own property."); Exhibit

B at 237 ("The amended Chapter 6 . . . does not represent a change."); Exhibit B at 228

("Succinctly stated, the purpose of these arnendments is to keep unchanged in its application to

ISee,e,g., Carrollton Presbyteriøn Church v, Presbytery of S. Louisiana of Presbyterian Church (USA),77 So. 3d

975, 981 (La. Ct. App. 9ll4lll); Heartland Presbytery v. Gashland Presbyterian Church,364 S.W.3d 575, 579(Mo. Ct. App.2012); Presbytery of Hudson River of Presbyterian Church (U.S.A.) v. Trustees of First PresbyterianChurch & Congregation of Ridgeberry, 72 A.D.3d 78, 86 (N.Y. Ct. App. 2010); Presbytery of Ohio Valley, Inc. v.

OPC, Lnc.,973 N.E.2d 1099, 1103 (Ind. 2012), cert. denied,l33 S. Ct, 2022 (U.5.2013).

PLÀINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTM RELIEF -

specific cases the system of control of church property that our Church has consistently followed

through the years.").

16. The addition of the PCUS trust clause to the denominational constitution in 1982

was accomplished without the assent of individual congregations who owned property.

Presbyteries-rìq! individual congregations, their sessions, their civil corporations, or their

governing boards-voted to approve the new trust clause under the representation that the new

property trust provisions were merely "declaratory of principles to which the [PCUS] and its

antecedent church bodies have adhered from the inception of the presbyterian form of church

goveÍrment." Exhibit A at $$ 21.250 -21.269; Exhibit B at228,229 ç 6-7,230 ç 6-7,237.

17. Nevertheless, to allay local congregations' concerns that the new trust clause

might grant the PCUS a broad right that the denomination did not have before 1982, the

proposed trust clause was adopted only with the following addendum:

Nothing in this chapter shall be construed to require a particular church to seek orobtain the consent or approval of any church court above the level of theparticular church in order to buy, sell or mortgage the property of that particularchurch in the conduct of its affairs as a church of the PCUS.

Exhibit C at 90, $ 6-8. The effect of this provision was to explicitly preserve the local autonomy

historically exercised with respect to property by churches in the PCUS.

18. The very next year, 1983, the southern PCUS denomination merged with the

northern UPCUSA denomination to form the PCUSA. The new PCUSA Constitution contained a

trust clause akin to the one added to the PCUS Constitution in the final year of its 1 l8-year

existence.2

2

The PCUSA trust clause stated:

All properry held by or for a congregation, a presbytery, a synod, the General Assembly, or thePresbyterian Church (U.S.A.), whether legal title is lodged in a corporation, a trustee or trustees,

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTM RELIEF -

19. Although the new PCUSA Constitution lacked the explicit right-to-dispose

provision ($ 6-8) found in the PCUS Constitution, the new PCUSA Constitution also contained

the following "exemption" provision that promised to enable PCUS congregations to retain their

prior property rights:

The provisions of this chapter shall apply to all congregations of the PresbyterianChurch (U.S.A.) except that any congregation which was not subject to a similarprovision of the constitution of the church of which it was a part, prior to thereunion of the IPCUS] and the IUPCUSA] to form the Presbyterian Church(U.S.A.) [(PCUSA)], has been excused from that provision of this chapter if thecongregation, within a period of eight years following the establishment of the

[PCUSA], voted to be exempt from such provision in a regularly called meetingand thereafter notified the presbytery of which it was a constituent congregationof such vote. The congregation voting to be so exempt shall hold title to itsproperty and exercise its privileges of incorporation and property ownership underthe provisions of the Constitution to which it was subject immediately prior to theestablishment of the IPCUSA].

ExhibitDat$G-4.0203.

20. The purpose of the $ G-4.0203 "exemption" was to permit PCUS congregations

to retain their historical property rights, and indeed, the PCUS actively led congregations to

believe this to be true. In a 1981 letter sent when the trust clause was proposed, Stated Clerk

James Andrews, then-chief offrcer of the PCUS, assured local churches that "the current draft of

the Plan for Reunion includes a so-called 'grandfather clause' under which PCUS churches

would remain subject fo traditional PCUS provisions dealing with ownership, sale, and

mortgaging of property in perpetuity." Exhibit Y at 2 (emphasis added).

21. Despite widespread use of the $ G-4.0203 exemption and the denominational

representations made contemporaneous with the 1983 merger, the PCUSA now asserts that

or an unincorporated association, and whether the property is used in programs of a congregationor of a higher council or retained for the production of income, is held in trust nevertheless for theuse and benefit of the Presb¡erian Church (U.S.A.).

ExhibitDat$G-4.0203

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND ANI) RELIEF -

because of the eleventh-hour addition of a trust clause to the PCUS Constitution in 1982, just

before the merger in 1983, the timely exercise of the exemption provision did not repudiate the

alleged denominational trust. As a result, local churches who in good faith claimed the $ G-

4.0203 exemption in the 1980's with the clear intent of rejecting the PCUSA's claimed trust are

now being told years later by the PCUSA that they misunderstood the "grandfather clause."

FPC Rejects PCUSA Trust

22. Following the merger in June 1983, the FPC Session acted immediately to ensure

that the merger could not be used as a basis to alter FPC's longstanding property rights.

Specifically, the FPC Session asked the Legal Committee of the Diaconate to examine the new

PCUSA property provisions and determine how to best reject them. S¿e Exhibit J. In a response

dated November 8, 1983, G. Christopher Scruggs prepared an analysis comparing the provisions

of the 1981-1982 PCUS Constitution and the 1983-1985 PCUSA Constitution. See Exhibit H.

Reasoning that none of the PCUSA property provisions was similar to the prior, traditional

PCUS property provisions, Mr. Scruggs concluded that "First Presbyterian could elect to be

excused from all of the provisions of Chapter VIII [(the PCUSA property chapter)] of the

Constitution." Exhibit H at 6,

23. A copy of Mr. Scrugg's report opining that FPC could renounce all PCUSA

property provisions was sent to the Presbytery, See Exhibit I. On November 9, 1983, a

representative of the Presb¡ery wrote back to Mr. Scruggs, stating:

Your fine paper sent to my desk concerning procedures relating to the ownershipof church property when a congregation (now The Presbyterian Church, U.S.A.)elects to continue to hold its church property pursuant to the provisions of thePCUS is very much appreciated. . . . Let me call one matter to your attentionbecause it may have some effect on the issues. The last Book of Church Order,IPCUS] is dated 198211983, and all of Chapter 6 ([the PCUS property chapter)]applies to the congregations which were part of the PCUS denomination. I havethe distinct feeling when I study your paper dated November 8, 1983 that you

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJTINCTryE RELIEF -

may have been working with an older edition of the denomination's Rules.

Exhibit I. In other words, the Presbytery asserted that the PCUSA $ G-4 property exemption was

actually rather hollow. Because the historical PCUS property provisions were changed to match

the PCUSA provisions just before the merger, the Presbytery argued, the PCUSA exemption

clause did not allow former PCUS churches to escape the new PCUSA denominational trust.

24. Notwithstanding the Presbytery's objection, a committee of the FPC Session

expressly rejected the imposition of a denominational trust as illegitimate and invalid. ,See

Exhibit E at 1-3. To make clear its renunciation of any asserted PCUSA trust, the FPC Session

recommended that the congregation pass the following resolution:

BE IT RESOLVED that the congregation of the First Presbyterian Church ofHouston, Texas, in a regularly called meeting, does hereby vote to be exemptfrom each and every one of the provisions of Chapter VIII of the Book of Order(except said section 7 under which this action is taken) and shall hold title to itsproperty and exercise its privileges of incorporation and property ownership underthe provisions of the Constitution of the Presbyterian Church in the United Statesto which it was legally subject prior to the establishment of the PresbyterianChurch (U.S.A.), this action having been taken within eight years following theestablishment of the Presbyterian Church (U.S.A.).

Exhibit F (emphasis added).

25. The FPC Session's committee report prepared with the Resolution further

elucidated its express purpose:

[T]o enable the First Presbyterian Church of Houston, Texas to elect not to begovemed by the provisions of Chapter VIII of the new Book of Order of thePresbyterian Church ([J.S.A.), but rather to continue to be governed in theownership and management of its property by the constitutional provisions lowhich ít has hístorícally been accustomed, preferably the IPCUSJ Book ofChurch Order, 1981-1982 editìon.

If the Resolution is approved by the congregatior¡ First Presbyterían Church ofHouston, Texas should consíder ítself to be governed concernìng ownershìp,mønøgement ønd dßposítion of church property by the PCUS Book of ChurchOrder I 98 1-1 982 editíon.

PLAINTIFF F?C'S VERIFIED ORIGINAL PETITION AND APPLIC.A'TION FOR TRO AND INJUNCTTVE RELIEF -

Exhibit E at I (emphasis added).

26, The FPC congregation considered and approved the Resolution without change on

March 11, 1984. Exhibit F. FPC communicated the congregation's decision to the Presbytery the

following day. Exhibit G.

27. The Presbytery again noted its disagreement with the propriety of FPC's action,

and it referred the matter to the Judicial Commission of the Presbytery. See Exhibit K. From

there, the matter was referred to the Permanent Judicial Commission, the highest arbiter of

constitutional interpretation in the PCUSA. S¿¿ Exhibit L. As noted in the Commission's

recommendation recorded in the September 15, 1984, minutes of the Presbytery, the

Commission rejected FPC's position that it could renounce certain property provisions, including

the trust clause:

RECOMMENDATION: That the Presbytery of New Covenant, having receivedand recorded at its meeting in Pearland, Texas, June 12,1984, the notice from theFirst Presbyterian Church of Houston that the church has acted "to be exemptfrom each and every one of the provisions of Chapter VIII of the Book of Order(except Section 7, under which this action is taken)", reminds the FirstPresbyterian Church of Houston that it continues to hold title to its property andexercise its privileges of incorporation and property ownership under theprovisions of the Constitution of the Presbyterian Church in the United States towhich it was legally subject prior to the establishment of the Presbyterian Church(U.S.A.), these provisions being similar to the provisions of Chapter VIII forwhich they claim exemption except G-8.0501 and G-8.0502.

Exhibit L at 1-2. As a result, the PCUSA would not recognize the congregation's vote to reject

the asserted denominational trust.

28. On Scptember 15, 1984, the Presbytery fonnally recited and recorded the

Permanent Judicial Commission's recommendation in its own minutes. Exhibit L at 2. The

Presbytery acknowledged FPC's continuing renunciation of the claimed trust, but the Presbytery

concluded that it was not necessary to take any corrective action:

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTIVE RELIEF - Page t0

The Presbytery of New Covenant (a) recognizes that the First PresbyterianChurch of Houston does not agree with this reminder, but nonetheless (b) agrees

that the difference in interpretation between the Presbytery of New Covenant andthe First Presbyterian Church of Houston does not raise a justiciable controversy.

Exhibit L at2.

FPC Requests Permissive Dismissal

29. Following years of disagreement with the PCUSA over a variety of issues, on

January 8,2013, the FPC Session recommended that the congregation enter into the Presbytery's

"Gracious Reconciliation and Dismissal Procedure" ("GRD Procedure"). Exhibit M at 1. At a

meeting of the congregation on January 27,2013, the church membership agreed and voted to

enter into the Procedure. Exhibit M at2.

30. The GRD Procedtue is the means preferred by the Presbytery by which it may

agree to let churches within its boundaries be "dismissed" from the PCUSA. See Exhibit N.

Pursuant to its terms, a congregation that enters the GRD Procedure "covenants" to follow a

delineated process of discernment, education, and voting before requesting that the Presbytery

"dismiss" the congregation from the PCUSA. S¿e Exhibit N. According to the "covenant," the

local congregation agrees to follow the GRD Procedure until the process is complete. S¿e Exhibit

Nat3.

31. After a year-long process under the GRD Procedure, the congregation of FPC

voted on whether to request dismissal on February 23,2014. Exhibit O. The congregation voted

overwhelmingly in favor of dismissal, 1085 to 596. However, this vote fell just short of the

super-majority vote required to request dismissal under the GRD Procedure. Exhibit O; Exhibit

Nat7.

FPC Now Requests a Judicial Determination of its Property Rights

32. Notwithstanding the failure of the Presbytery to dismiss FPC from the PCUSA


under the GRD Procedure, FPC desires a final adjudication of its property rights as currently

held by the congregation of FPC, regardless of its denominational affiliation.

VI.

CIVIL JURISDICTION AND APPLICABLE LA\ry

33. The lone issue before the Court is whether FPC holds its property unencumbered

by a trust for the use and benefit of the PCUSA. As FPC has shown and will further demonstrate,

there is no such trust. FPC holds all real property and personal property in its own n¿une, not in

the name of or for the benefit of anyone else. The southern PCUS denomination of which FPC

was a member in 1983 had absolutely no title to FPC property before the denominational merger,

nor did the PCUS have any authority to convey FPC's property to the new denomination in

connection with the merger. Not only did FPC do nothing in connection with the 1983 merger to

relinquish its property rights, but it acted promptly and properly to reject any such claims. More

recently, there is nothing FPC has done since the merger to suggest in any way, shape, or form

that it has relinquished its property for the beneficial use of the PCUSA. When clear and

established principles of Texas law are applied to these facts, the PCUSA has no claim to the

property of the FPC congregation.

Civil Jurisdiction and Applicable Law

34. It is well-settled that civil courts çannot intrude upon the realm of religion by

attempting to resolve matters of "theological controversy, church discipline, ecclesiastical

government, or the conformity of the members of a church to the standard of morals required of

them." See Masterson v. Diocese of Nw. Texas, 422 S.W .3d 594,601 (Tex. 2013). However, the

mere fact that a dispute concerns a church or churches does not insulate it from judicial review.

See id. at 605-06. In fact, "Texas courts are bound to exercise jurisdiction vested in them by the

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICÄTION FOR TRO AND INJIINCTryE RELIEF -Pase12

Texas Constitution and cannot delegate their judicial prerogative where jurisdiction exists'" 1d' at

606.

35. As courts have almost unanimously recognized, property disputes between local

Presbyterian congregations and their presbyteries are precisely the type of secular controversies

that courts are allowed to address. See, e.g., Jones v. l4olf,443 U.S. 595, 602 (1979) ("There can

be little doubt about the general authority of civil courts to resolve this question."); Windwood

Presbyterian Church, Inc,,2014 WL 47750 (Tex. App. - Houston [lst Dist.], Jan.7,2014);

Arkansas Presbytery of Cumberland Presbyterian Churchv. Hudson,40 S.W.3d 301, 307 (Ark'

200I); Hope Presbyterian Church of Rogue River v, Presbyterian Church (U.S.A.),291 P.3d

7ll,7I8 (Ore.2012).

36. Starting with these principles, the Texas Supreme Court recently set forth a

mandatory analysis for resolving church property disputes in Texas in Masterson v. Diocese of

Nw. Texas, 422 S,W.3d 594, 601 (Tex. 2013). Before adopting an exclusive anal¡ical

framework for resolving such controversies, the Masterson court explicitly rejected the

"deference method" of resolving ecclesiastical property disputes. Under the deference method-

which is still employed by a minority of states-the position of a "higher" church body

automatically prevails over the position of a "lower" church body, no matter how secular their

dispute, no matter how arbitrary the "higher" body, and no matter how inequitable the result. ^See

id. at 602 ("4 court applying the deference approach defers to and enforces the decision ofthe

highest authority of the ecclesiastical body to which the matter has been carried."). Howevel,

because the deference method unnecessarily grants a religious shield to decidedly non-religious

matters, the Masterson courtreasoned, it should no longer be applied by any courts in Texas' 1d.

at 606-07.

PLÄINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTWE RELIEF -

37. Instead, the Masterson court held that the exclusive means of "determin[ing]

property interests when religious organizations are involved" is the "neutral principles method."

Id. at. 607. "Under the neutral principles methodology, ownership of disputed property is

determined by applying generally applicable law and legal principles. That application will

usually include considering evidence such as deeds to the properties, terms of the local church

charter (including articles of incorporation and by laws, if any), and relevant provisions of

governing documents of the general church." Id. at 603. Importantly, the neutral principles

method "relies exclusively on objective, well-established concepts of trust and property law

familiar to lawyers and judges [and] thereby promises to free civil courts completely from

entanglement in questions of religious doctrine, polity, and practice." Jones,443 U.S. at 603.

Unless the resolution of the property dispute is necessarily dependent upon a distinctly "religious

precept," church and presbytery are treated as any other parties to a lawsuit: equal entities whose

claims are subject to the applicable state law of contracts, trusts, property, and corporations. See

id. aT. 601-04. Under this neutral approach to church property disputes, churches and

denominations "can modify the deeds or the corporate charter to include a right of reversion or

trust in favor of the general church, [or] the constitution of the general church can be made to

recite an express trust in favor of the denominational church [a]nd the civil courts will be bound

to give effect to the result indicated by the parties, provided it is embodied in some legally

cognizable form." Id. at 606 (emphasis added).

38. With this backdrop, courts applying the neutral principles method should examine

(1) legal documents of title, (2) the terms of the local church charters, (3) the provisions of the

constitution of the general church conceming the ownership and control of church property, and

(4) state statutes governing the holding of church property, with the focus of the inquiry being

PLAINTIT'F FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND RELIEF -

whether the asserted property interest is embodied in a legally cognizable form enforceable

under state law. Jones,443 U.S. at 603-04; Masterson, 422 S.W .3d at 603; Windwood,2014 WL

47750 at *4. As an examination of these items demonstrates, FPC holds its property free and

clear of any trust or property interest the PCUSA claims in favor of itself.

Documents of Title

39. Because a written instrument of conveyance is required to transfer ownership of

land under Texas law, the relevant deeds form the starting point in the neutral principles analysis.

See Tnx. PRop. Coon $ 5.021. Although a property trust might be evidenced by an agreement

made outside the conveyance instrument, the absence of any such language in the deeds operates

to transfer the property to the purchaser in absolute, fee simple ownership. Brown v. Clark, 116

S.W. 360, 364-65 (Tex. 1909) ("It follows, we think, as a natural and proper conclusion, that the

church to which the deed was made still owns the property, and that whatever body is identified

as being the church to which the deed was made must still hold the title.") (cited for this

proposition by Masterson, 422 S.W.3d at 605-06 (Tex. 2014)); Tex. PRop. Cooe $ 5.001 ("An

estate in land that is conveyed or devised is a fee simple unless the estate is limited by express

words.").

40. FPC owns approximately thirteen parcels of real property, all in the Houston,

Texas area. See Exhibit Q. According to the offrcial deeds recorded in the Harris County

property records, not one of the properties owned by FPC \r/as conveyed to the church to hold in

trust f'or the benefit of the Presbytery, the PCUS, or the PCUSA. See Exhibit Q; Exhibit P (Deed

Sets 9, 16,22-28).

4L In fact, FPC has meticulously compiled all of the available conveyance

instruments pertaining to any real property ever held by FPC, including purchases and sales. ,See

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJLI¡{CTWE RELIEF -

Exhibit P. The fruit of FPC's efforts is 55 instruments relating to 33 separate properties owned

by FPC over the past 175 years. See Exhibit P (Deed Sets 1-33). A review of each of the deeds

by which FPC ever acquired or conveyed property shows that FPC never once purported to

purchase or sell property for the benefit of the PCUS or the PCUSA. Se¿ Exhibit P'

42, Only once, in 1843, did FPC purport to limit its ownership rights or acquire

property for the benefit of a denomination. ^S¿e Exhibit P (Deed 33-1). Paying $1 for the tract of

land on which FPC had already been allowed to erect its first church building, FPC's trustees

acquired the land "for the sole use and benefit of the Presbyterian denomination, adhering to the

Westminster Confession of Faith." S¿e Exhibit P (Deed 33-l). On information and belief, the

only such denomination at the time of this instrument would have been the "Presbyterian Church

in the United States of America." However, that denomination ceased to exist as an entity in

1861-over 150 years ago. In any event, the referenced property was sold by FPC in 1894,

thereby divesting the church of the only property it ever held for the benefit of a denomination.

To the extent that the PCUS retained any interest in the property in 1894, it either assented to the

transfer of the property, permitted FPC to renounce it, or has since waived its right to complain

under the relevant statute of limitations. See Civil Jurisdiction and Applicable Law, State

St atute s, infr a ll 7 2-80.

43. The language used in the 1843 deed confirms the historical constancy of the

wording used to create a trust over property, More importantly, though, this language stands in

stark contrast to the worcling used in every other property transaction in which FPC has ever

participated, including those transactions pertaining to its current properties. See Exhibit P.

Though FPC was obviously capable of creating a denominational trust over its other properties,

it did not identify any denomination in any other deeds as a beneficiary, as a party in interest, as


an affiliated body, as an ecclesiastical authority, or as a denominational identifier; indeed, the

FPC deeds never mention a denomination at all. See Exhibit P. Fifty-four out of fifty-four times,

since at least 1887, FPC has acted only for the interest of its own congregation, acquiring all of

its property rights either as "The First Presbyterian Church of Houston" or "The First

Presbyterian Church of Houston, a corporation created by the Laws of Texas." Se¿ Exhibit P.

Compare Korean United Presbyterian Church v. Presbytery of the Pac.,230 Cal. App. 3d 480,

510 (Cal. Ct. App. 1991) (considering church properties "held solely in the name of the

Presb¡ery"); Fluker Cmty. Church v. Hitchens, 419 So. 2d 445, 448 (La. 1982) (considering

deed that included specific denominational identification, A.M.E.).

44. Accordingly, FPC holds all property in its own name without any encumbrance or

beneficial interest in the name of anyone else or for the benefit of anyone else.

Terms of the Local Church Charter

45. FPC's corporate charter further demonstrates that FPC holds its property

unencumbered by any alleged trust in favor of the PCUSA.

46. Because the corporate charter and bylaws form the foundational statement of a

church corporation's purpose and powers, courts often look to their language to evaluate the

existence of a denominational trust. Ordinarily, an intent to own property on behalf of a specific

denomination is manifested by express language to that effect. See, e.g., Peters Creek United

Presbyterian Church v. l|/ashington Presbytery of Pennsylvania, 1044 C.D. 2011,2014 WL

1810581 (Penn. Ct. App., Apr. 30, 2014) (finding that irrevocable incorporation of PCUSA

Constitution and trust clause into bylaws established trust); Hope Presbyterian Church of Rogue

River v. Presbyterian Church (U.S.A.),255 P.3d 645,649 (Ore. Ct. App. 2011) (frnding that

addition of trust clause to articles of incorporation created a trust).

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION A¡¡D APPLICATION FOR TRO AND INJIINCTM RELIEF -

47. The first FPC corporate charter, dated January 4, 1887, contains no such trust

language. See Exhibit R. Concerning property, the charter states: "all of the property, right and

estate of this Church, as now vested in this Congregation, shall pass to and vest in said

Corporation." Exhibit R (emphasis added). By vesting the FPC corporation with "all" of the

property rights held by the congregation, the corporate charter thereby negates any inference that

the charter is meant to vest any right or interest in anyone else. Indeed, the 1886 congregational

resolution approving the charter states that the congregation decided to "pursue this course to

protect the interests of the Congregation and prevent litigation in the future, so far as possible."

Exhibit R at 6.

48. The only mention of a denomination anywhere in the charter is the statement that

"[t]he purpose for which said Corporation is founded is the support of the public worship of God

according to the form of government of "The Presb¡erian Church in the United States." Exhibit

R. However, the contemporaneous form of government referenced by the 1887 charter contained

no hint or vestige of a trust clause (and would not for another 96 years).

49. Before the year 1887 was over, FPC amended its corporate charter to its current

form, adding one provision to clarify the extent of FPC's proprietary autonomy:

The purposes for which said Corporation is formed is the support of the public

worship of God according to the form of Govemment of "The Presbyterian

Church in the United States," and as incidental thereto, shall have power to

purchase and own and enjoy in any way it may seem fit, an estate in fee, or any

less estate or interest in lands or real estate in the said City of Houston, and to sell

mortgage or convey the same or any estate or interest therein, , . . and to give as

security for the payment of said borrowed money a deed of trust or mortgage on

the property both real and personal of said corporation now owned or held by it,or that may be hereafter acquired by it.

Exhibit S; Exhibit T. In other words, the express purpose of FPC's 1887 amendment wqs to

permanently establish the right of FPC to purchase and own its property free of any trust or

PLAINTIFF FPC'S VERIF'IED ORIGINAL PETITION AND APPLICA.TION FOR TRO AND INJUNCTM RELIEF -

beneficial interest infavor of another entity.

50. The corporate bylaws of FPC likewise contain no reference to a trust or

beneflrciary interest in favor of any entity. See Exhibit U. Nor do the bylaws bestow upon FPC's

Board of Directors any power to deviate from the default statutory corporate procedures required

to act on the corporation's behalf. Exhibit U. Moreover, because the power to take absolute

ownership is still embodied in FPC's corporate charter, it preempts any conflicting provision that

might ever be added to FPC's bylaws, any conflicting action that might ever be taken by FPC's

Board of Directors, and any conflicting provision found in the PCUSA Constitution. S¿e Tex.

Bus. Oncs. Coo¡ $$ 22.103 (corporate bylaws cannot conflict with corporate charter);2.113

(corporation cannot take act inconsistent with its charter). Here, too, it is clear that FPC holds its

property unencumbered by any alleged trust that the PCUSA claims for itself.

Denominational Constitution

51. The PCUSA's own denominational constitution further confirms the absence of

any trust in favor of the PCUSA. While the denominational constitution obviously contains the

trust clause so often relied upon by the PCUSA, that provision cannot be read in isolation.

Significantly, various other provisions in the governing documents exalt the autonomy and

authority of the civil courts with respect to temporal matters while disclaiming the legal

enforceability of any provisions set forth in the denominational constitution. Emphasizing that

the PCUSA Constitution is not a contract-because "[t]he essence of a contract is an

agreement," W. E. Grace Mfg, Co, v. Levin, 506 S.W.2d 580, 584 (Tex. 1974) (emphasis

added)-well-settled principles of interpretation nonetheless shed light on the proper

interpretation of the PCUSA Constitution as a written instrument. Specifically, it is presumed

that the creator of a writing "intend[s] every clause to have some effect" and each clause is given

PLAINTIFF FPC'S VERIFIED ORIGINÀL PETITION AND APPLICATION FOR TRO AND INJLJNCTM RELIEF - Prge 19

its "plain, ordinary, and generally accepted meaning." Heritage Res., Inc, v, NationsBank,939

S.V/.2d 118, 121 (Tex. 1996). For this reason, courts have unequivocally found thata party's

express declaration fhat a document is not to be binding means just what it says: the document is

not to be binding. See, e.g., Dallas Area Rapid Transit v. Amalgamated Transit Union Local No.

1338, 273 S.W.3d 659, 670 (Tex. 2008) (finding that a grievance resolution panel's

recommendation was not legally enforceable where the applicable manual stated that it "shall not

be binding"); PNS Stores, Inc. v, Rivera,379 S.W.3d 267,277 (Tex.20l2i lnnding that no rules

stated in Texas Lawyer's Creed were legally enforceable where creed stated that "[t]hese rules

are primarily aspirational"); Hanson Sw. Corp. v. Dal-Mac Const. Co., 554 S.W.2d 712,721

(Tex. Civ. App. - Dallas, 1977)

52. The PCUSA Constitution's unambiguous terms likewise disclaim any appearance

of legal force or effect. For instance, $ F-3.0108 of the PCUSA Constitution, which is identified

as a "Historic Principle of Church Order," states:

[A]ll church power, whether exercised by the body in general, or in the way ofrepresentation by delegated authority, is only ministerial and declarative; , . . thatno church judícatory ought to pretend to make laws to bind the conscience invirtue of their own authority; . . . .

Since ecclesiøstícal discípline must be purely morøl or spírítual ín íts object, øndnot attended wíth any civíl effects, it can derìve no force whatever, but from itsown justice, the approbation of an impartial public, and the countenance and

blessing of [God]."

Exhibit W at F-3.0108 (emphasis added).

53. Another Historic Principle of Church Order found in the constitution states:

(a) []"God alone is Lord of the conscience, and hath left it free from thedoctrines and commandments of men which are in anything contrary to his'Word,or beside it in matters of faith or worship."

(b) Therefore we consider the rights of private judgment, in all matters thatrespect religion, as universal and unalienable: lle do not even wßh to see any

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJI,]NCTryE RELIEF -Page2Û

relígíous constítutíon aided by the cívìl power, further than may be necessary forprotection and security, and at the same time, be equal and common to all others.

Exhibit w at F-3.0101.

54. Elsewhere, the PCUSA Constitution reiterates:

Councils of thß church have only ecclesiøstìcal jurßdíctíon for the purpose ofserving Jesus Christ and declaring and obeying his will . . . . They may framestatements of faith, bear testimony against error in doctrine and immorality in life,resolve questions of doctrine and discipline, give counsel in matters ofconscience, and decide issues properly brought before them under the provisionsof this Book of Order.

Exhibit W at F-30102. Indeed, these provisions of the PCUSA Constitution exhibit both a

recognition and an adoption of the distinction between strictly spiritual matters and all other

matters. See also PCUSA LBceI- R¡souRcr MeNuRr, ron PRnssyrERrAN Cuuncu (USA)

Mnole GoveRNING BoDIES AND CHURCHES (expressly acknowledging that "[a]lmost all

property matters are governed by state law").

55: The many statements present in every iteration of the PCUSA Constitution and of

its historical and legal predecessors limiting the scope of denominational authority and

disclaiming any legal effect make plain that the express trust clauses that were added in 1982 and

1983 were only aspirational. This is consistent with the factthat the civil court decision that

prompted denominational officials to insert trust clauses said that judges would give force and

effect to trust clauses only to the extent that they represented the mutual consent of the parties

and were in a form that complied with generally applicable state law requirements. S¿e Jones,

443 U.S. at 606 ("[C]ivil courts will be bound to give effect to the result indicated by the parties,

provided it is embodied in some legally cognizable form.").

56. The foundational nature of this principle is bolstered by the PCUSA

Constitution's continuing mandate that churches cloak themselves with the secular protections of

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO A¡{I) INJTiNCTIVE RELIEF -pase2l

corporate form. See Exhibit D at G-4.0101. Going so far as to specifically address potential

property disputes, the PCUSA Constitution even explains that the affrliation of a congregation

with the denomination shall not impair that congregation's individual property rights. It states:

"Nor doth their communion one with another as saints, take away or infringe the title or property

which each man hath in his goods and possessions." Exhibit X at 6.148.

51. Unlike the PCUS/PCUSA trust clauses, the above renunciations of legal force

have remained a constant theme throughout the entire history of the PCUS and PCUSA. Indeed,

the wording of the "historic principles" excerpted above (F-3.0101 and F-3.0108) has existed in

the PCUS and PCUSA Constitutions, and the constitution of the preceding Presbyterian

denomination, unaltered for more than 175 years. ^See

Exhibit V at 7-8. Still other provisions of

the 1839 Presbyterian Constitution, to which FPC ostensibly would have subscribed at its

founding, confirm that this understanding has been constant throughout FPC's entire history. For

instance, the 1839 Presbyterian Constitution specified that"PCUS øssemblies [(congregatíons,

presbyteries, and synods)J ought not to possess øny cívil jurßdíction, nor to inflìct any cívíl

penalties. Their power is wholly moral or spirítuøL." Exhibit V at 10. Further, "the highest

punishment to which [Presbyterian body] authority extends, is to exclude the contumacious and

impenitent from the congregation of believers." Exhibit V at 1 l. Even addressing the sovereignty

and authority of the civil judiciary, the 1839 Presbyterian Constitution made clear that the role of

the civil court system was supreme, -stating: "Infidelity or difference in religion, doth not make

void the magistrate's just and legal authority, nor free the people from their due obedience to

him: from which ecclesiastical persons are not exempted." Exhibit Y at4-5.

58. The PCUS's own internal analysis of its property rights demonstrates the

longstanding exclusivity of individual member church's property rights. In the offrcial Ad

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTryE RELIEF -Page22

Interim I 1P report

which recommended the addition of the trust clause to the denominational constitution-the

PCUS committee candidly admits that the PCUS Constitution and its predecessor document

"said nothing specific about church property" until 1925. Exhibit B at 233. Even then, the

question of property ownership did not emerge as an issue until sometime between 1944 and

1950, when the PCUS General Assembly "authorized a committee to study the matter of church

property." Exhibit B at234.

59. The resulting report issued by the 1951 Committee "To Study the Whole Question

of Church Property as Related to the Presbytery and Other Church Courts" concluded:

l. The legøl title to property of ø particular church ß in its trustees on thebehølf of thøt congregatíon. Thereþre, lhe property ìs actuølly controlled bythat congregøtion. Thß is recognized by both Civíl and Ecclesiøstical courts,The rìght to hold ønd dßpose of properly ß granted hy the State.

3. In such cases where a right of property asserted in a civil court is dependentsolely on a question of doctrinal discipline, ecclesiastical law, rule, or churchgovernment, and that question has been decided by the highest tribunal within theorganization, the civil courts will ordinarily accept that decision.

5. If trustees or members of ø pørticulør church undertake to wíthdraw andøttempt to tøke theír church property with them, ìt may subject øll questions ofownership ønd control to a decßìon by the cívil courts,

Exhibit B at235 (emphasis added).

60, In 1953, the General Assembly adopted a declaratory statement as an "Assembly

interpretation of what the Book of Church Order means." Exhibit B at 235. According to that

official PCUS declaratory statement,

The beneftcíøl ownership of the property of ø partícular church of the IPCUS]ís ín the congregøtíon of such church and title may properly be held in any form,corporate or otherwise, consistent with the provisions of civil law in thejurisdiction in which the property is situated. The congregation, with respect tosuch properly, may properly exercße any prívìlege of ownershþ possessed byproperty owners in such jurisdiction. In every instance nothing in the manner of

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTM RELIET'-

tenure of such property or the use thereof shall be in violation of the obligation ofsuch congregation to the body of the IPCUS] as established by the Constitution ofsuch church.

Exhibit B at235 (emphasis added). The exact language of this statement was reaffirmed in 1967,

reaffirmed again in 1971, and remained part of the official statement of the PCUS until at least

1981. Exhibit B at 235-36.

6L In 1981, although the merger with the UPCUSA was fast approaching, the PCUS

began an attempt to overhaul its own property provisions. The proposed revisions, which

included the new trust clause, were accompanied by a PCUS report expressly insisting, however,

that the new trust clause "d[id] not represent a change but simply sets forth in the . . . chapter on

property what preceding General Assemblies have declared the existing language to mean."

Exhibit B at 237. This PCUS admission-an admission on which local churches relied---can

only be squared with the denomination's many prior official statements that the PCUS trust

clause did not vest the denomination with any property interest. Further, any present assertion

that an enforceable trust has always existed in favor of the PCUSA is categorically irreconcilable

with the unambiguous historical vestment of the beneficial interest "in the congregation of such

church."3

62. Finally, even under the PCUSA's selective adherence to the denominational

constitution, the asserted PCUSA trust clause is not the end of the inquiry. It bears repeating that

even under the terms of the new denominationally-asserted trust clause, individual congregations

could vote until 1991 to be exempt from any PCUSA property provision to which that church

was not previously subject. Exhibit D at G-4,0208. FPC has always asserted that its exercise of

3- In other words, the assertion that the beneficial interest is held by the congregation but that there is a trust in favor

of the church is a self-conhadiction. It is the legal equivalent of stating that the ans\ryer to a question is 1000/o "yes"and 100olo "no."

PLÂINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FORTRO AND INJUNCTIVE RELIEI -PAgC2A

the exemption, which permits local churches to buy and sell property as they see f,rt, was a

legitimate renunciation of the purported trust. Exhibit H; Exhibit L Though the Presbytery has

disputed whether such a vote serves to negate the trust clause, at least one court has flatly

rejected the Presbytery's position. See Carrollton Presbyterian Church v. Presbytery of S.

Louisiana of Presbyterian Church (USA),77 5o.3d975,981 (La. Ct. App. 9ll4lll),writ denied,

82 So.3d 285, cert. denied,l33 S.Ct. 150 (holding that under any reasonable interpretation of the

denomination's own governing documents, reliance upon the exemption "negated any express

trust as provided by [PCUSA Constitution]").

63. Taken together, the provisions of the PCUSA Constitution simply do not create

the trust claimed by the PCUSA in favor of itself. Nowhere in the PCUSA Constitution are local

churches required to adopt a denominational identifier, amend their corporate charters to create a

trust, dedicate their property in trust, subject their corporate powers to denominational control, or

otherwise do any of the various acts that might create a trust under the relevant state law. Rather,

as has been the case for the last 175 years, the PCUSA Constitution continues to disclaim its own

legal enforceability, while at the same time recognizing both judicial authority and the

congregational property autonomy of former PCUS churches. It is only in the last 40 years that

the clarity of these principles has been obscured by the heavy-handedness and wishful thinking

of the PCUSA.

State Statutes Governing the Holding of Church Property

64. Texas, like most states, does not have a statutory scheme that distinguishes

between the property and contractual rights of religious and secular organizalions. Church or not,

Texas litigants are subject to the generally applicable provisions of Texas trust law, Texas

property law, Texas remedial law, and Texas corporate law. See Masterson,422S.W.3dat609

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJIJNCTIVE RELIEF -

(Tex. 2013). In this case, a consideration of these various legal principles establish multiple,

independent reasons why there is no enforceable trust over FPC's property in favor of the

PCUSA.

Texas Trust Law

65. Texas law govems any alleged trust of Texas real property. See Toledo Soc. For

Crippled Children v, Hickok,26l S.W.2d 692,697 (Tex. 1953). Although Texas trust law has

changed substantially over the course of FPC's 775-year history, it can still broadly be divided

into two eras: (1) the historic era, which ends in 1943 and was comprised largely of decisional

case law, and (2) the current era, which began in 1943 with the adoption of the Texas Trust Act.

See Clarence A. Guittard, Express Oral Trusts of Land in Texas, 2l Tnx. L. Rev. 719, 722

(9a\; Fitz-Gerald v. Hull,237 S.W.2d 256,265 (Tex. 1951). Because the applicable body of

trust law is comprised of that which existed at the time of the relevant facts, this Petition will

address both eras of law. See, e.g,In re Ray Ellison Grandchildren Trust,261 S.W.3d lIl,I24

(Tex. App. - San Antonio 2008).

66. In the historic era of Texas trust law, a writing was not required to create a trust

over real property. See Mead v. Randolpft, 8 Tex. 191 (Tex. 1852), Nevertheless, to have

established an express trust in favor of the denomination over FPC's land before 1943, FPC must

have clearly demonstrated its intent to create such an anangement. See Patrick v. McGaha, 164

S.W.2d 236,241 (Tex. Civ. App. - Fort Worth 1942). Moreover, there must be some clear

evidence of the requisite intent: "[A]s distinguished from a trust arising trom implications, an

express trust arises either by express agreement or by direct and positive acts of the parties or by

some writing or deed." Fitz-Gerald, 237 S.W.2d at 260 (citing authorities). Also, "it is not

necessary that the trust instrument expressly convey or devise legal title to a trustee, if the

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO ANI) INJUNCTM RELIEF -

intention to create an active trust appears from the instrument. But again, such intention must be

as clearly manifested as if express terms had been employed." Longv. Long,2525.W.2d235,

249 (Tex, Civ. App. - Texarkana 1952). "4s express trusts are declared by the parties, there can

never be a controversy whether they exist or not." Baternønv. Ward,93 S.W. 508, 510 (Tex.

Civ. App, 1906). Importantly, if trust language is not specihcally used, the intent to create a trust

must otherwise be readily apparent: "[The settlor] need not use any technical words or language

in express terms creating or declaring a trust; but he must employ language which shows

unequivocally an intention on his part to create a trust in a third person or to declare a trust in

himself." Samuellv. Brooks,2O7 S.W. 626,629 (Tex. Civ. App.-Dallas 1918).

67 . A corollary of the requirement of clear intent is that the party creating a trust must

clearly identify and designate the trustee, the beneficiary, and the property that is to be the

subject of the trust. "[A]n express trust is generally created by an instrument pointing out the

property, purposes and persons of the trust and [] a definite declaration of each is essential."

Brown v, Donald, 216 S.W.2d 679,683 (Tex. Civ. App. - Forth V/orth 1949) (evaluating 1922

trust instrument). Accordingly, a trust is only created to the extent provided for in the trust

instrument. See Batemanv. Ward,93 S.W.508,510 (Tex. Civ. App. 1906) ("The appellants

contend that the instruments sued on constitute an express trust. If this is so, the instruments

should point out directly and expressly the property, persons, and purposes of the trust.").

68. There is no pre-1943 evidence ofany intent by FPC to create a blanket trust over

its real property in favor of the PCUS or PCUSA. Excluding one piece of property purchased in

1843, FPC's history is wholly devoid of any reference to a trust on behalf of anyone. No other

property is ever identified as subject to a trust, no beneficial interest is ever parceled, and no

beneficiary is ever identified, either explicitly or implicitly. For the entire 175-year duration of

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJIJNCTWE RELIEF -

FPC's existence, it has bought and sold dozens of properties without any involvement by or

interaction with the Presbytery or denomination. Accordingly, the Presbytery can make no claim

that a blanket trust arose over FPC's property prior to 1943. See also Civil Jurisdiction and

Applicable Law, Denominational Constitution, supra at flfl51-63.

69. Beginning with the adoption of the Texas Trust Act in 1943, a trust over real

property may be established only by a written instrument. See Mills v. Gray,210 S.V/.2d 985,

987 (Tex. 1948). The requirement of a writing now extends to a trust of any property, real or

personal. Tpx. Pnop. Coop $ 112.004. Further, the trust instrument must also be signed by the

settlor, or owner of the subject property. Id. Just as before 1943,"1a] trust is created only if the

settlor manifests an intention to create a trust." T¡x. Pnop. Coop $ 112.002.

70. Since 1983, the Presbytery and the PCUSA have asserted that the PCUSA

maintains a trust interest in all of FPC's property by virtue of the trust clause found in the 1983

PCUSA Constitution. See Exhibit L. However, this argument cannot stand in light of neutral

principles of law and the basic requirements of Texas trust law. The PCUS/PCUSA trust clauses,

which first appeared in 1982 and 1983 when they were unilaterally added by the would-be

beneficiaries, were never approved or ratified by FPC. Quite the opposite, FPC notified the

Presbytery of its express rejection of any such trust on March 12, 1984, pursuant to a

congregational resolution renouncing "each and every one" of the property provisions found in

the PCUSA Constitution. Exhibit G. On September 15, 1984, the Presbytery formally

acknowledged the continuing disagreement between itself and FPC, but decided that the dispute

did not present a justiciable controversy. Exhibit L. In the absence of both (1) a signed writing

and (2) any evident intent by the settlor (FPC) to create a trust, the Presbytery's trust argument

carries two fatal defects.

PLAINTIFF FPC'S VERItr'IED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTTVE RELIEF - PAgC 28

71. Even f this Court were to ignore these defects and assume that a valid blanket

trust once existed, such a trust was both revocable and revoked. Under Texas law, "[a] settlor

may revoke the trust unless it is irrevocable by the express terms of the instrument creating it or

of an instrument modiffing it." Tsx. Pnop. ConE $ 112.051(a). Because there is no instrument

that purports to make the alleged PCUSA trust clause irrevocable, FPC revoked any discernible

trust by its March 12,1984letter. See Exhibit G; Exhibit L.

Texas Property Law - Adverse Possession

72. Even assuming the existence of a trust and even assuming that the trust was not

revoked on March 12,1984, that trust has nonetheless been vitiated by adverse possession under

neutral principles of Texas property law. Under state law, it is generally possible for someone to

prove absolute-or fee simple----ownership of Texas real property in four ways: "(1) prove a

regular chain of conveyances from the soverei gn, (2) establish superior title out of a common

source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof

that possession was not abandoned." Martin v. Amerman,l33 S.W.3d 262,265 (Tex. 2004).

73. Unlike the Presbytery or the PCUSA, FPC possesses and holds title to all of its

properties in the name of FPC, and it does so pursuant to deeds of conveyance that identify FPC

as the fee simple o\rr'ner of the property. See Exhibit P. V/ithout any writing to substantiate its

claim, the PCUSA lacks both an instrument of conveyance and possession of the property; it

therefore cannot establish any cognizable ownership interest under Texas law. See, e.g., Martin,

133 S.W.3d at 265; Teon Mgmt., LLC v. Turquoise Bay Corp.,357 S.W.3d 719,728 (Tex. App.

- Eastland 20II).

74. As recognized by the Texas Supreme Court, one method by which fee simple

ownership of real property can be established is "title by limitations," otherwise known as

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJLII\CTM RELßF - P age 29

adverse possession. Martin,l33 S.W.3d at265. Pursuant to Tnx. CIv. Pnnc. & R¡u. Cooe $$

16.026 & 16.030, one who holds and uses real property in peaceable and adverse possession

acquires the right to own that property after ten years. Rhodes v. Cahill,802 S.W.2d 643, 645

(Tex. 1990). However, "such possession must not only be actual, but also visible, continuous,

notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an

assertion of a claim of exclusive ownership in the occupant." Id. (quoting Satterwhite v, Rosser,

61 Tex. 166,171(Tex. 1884)).

75. Since March 12, 1984, when FPC notified the Presbytery of its renunciation of

"each and every" property rule found in the PCUSA Constitution, and certainly since September

15, 1984, when the Presbytery acknowledged FPC's position, FPC has occupied its properties

adversely and on its own behalf. Exhibit G; Exhibit L. Not only did FPC expressly renounce any

interest of the PCUSA, but it has openly, continuously, physically, and exclusively occupied

each of its properties since that date-almost 30 years ago. Accordingly, FPC both owns the real

property and any right of action that the PCUSA might have had to claim the property is

categorically baned by Tnx. CIv. Pnec. & R¡tr¿. Cooe $$ 16.026; 16.030.

76. Because FPC has adversely, openly, continuously, and exclusively occupied its

real properties for three or five years, it also has acquired ownership by virtue of its duly

registered deed and possession under title. See Exhibit P; TBx. Clv. Pnec. & R¡tr¡. Cooe $

16.025 (possessor acquires ownership of property pursuant to "duly registered deed" by adverse

possession of five years); ç 16.024 (possessor "under title or color of title" acquires ownership

after three years); $ 16.030.

77. The same principles of adverse possession apply to any personal property held by

FPC. See Wrilcox v. St. Mary's (Jniv. of San Antonio, |nc.,497 S.V/.2d 782,788(Tex. Civ. App.

PLAINTIFF FPC'S YERIFTED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTIVE RELIEtr.. PAgC 30

- Austin 1973), judgment set aside on other grounds, 501 S.W.2d 875 (Tex. 1973) ("[A]dverse

possession of personal property for the period and under the circumstances prescribed by the

statute of limitations not only bars an action for recovery of the property but gives title to the

thing possessed and destroys the title of the former owner.") (citing [4/inburn v. Cochran, 9 Tex.

r23,725 (1852)).

78. Accordingly, even if the Court were to assume the existence or creation of a valid

trust in favor of the PCUSA in 1983, the continuous and unintemrpted adverse possession of all

real and personal property by FPC defeats even a binding, irrevocable trust. As Texas courts

have long recognized, a "statute of limitations . . . will apply to adverse possession under a deed

given in creation of a trust provided there is due proof of repudiation of the trust agreement by

the trustee and notice thereof to the cestui que trust [(trust beneficiary)])' Hooper v. Courtney,

258 S.W.2d I24,125 (Tex. Civ. App. 1953); see also St. Louis Union Trust Co, v. Harbaugh,

205 S.V/. 496, 500 (Tex. Civ. App. 1918) ("In order to constitute the possession of a trustee

adverse to the beneficiaries of the trust, the repudiation of the trust by the trustee must be clear

and unequivocal, and the beneficiaries must have notice thereof.").

Texas Remedial Law

79. Under Texas law, a party must bring a suit for fraud or breach of fiduciary duty

within four years of the cause of action accruing. TBx, Clv, Pnnc. & R¡v. Cooe $ 16.004.

Moreover, a party must bring suit for trespass for injury to the estate or to the property of

another, conversion of personal property, and taking or detaining the personal property of

another within two years of the cause of action accruing. Tex. Ctv, Pnec. & R¡v. CooE $

16.003.

80. To the extent that the PCUSA's assertion of a trust, damages, or competing

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTIVE RELIEF - PAgC 3I

ownership interest in FPC property would represent a claim stemming solely from FPC's

assertion of outright, absolute, and exclusive ownership free of any extemal beneficial interest,

the Presbytery's right to pursue that claim has long since expired. Specifically, FPC explicitly

informed the PCUSA of its renunciation of any denominational interest in any FPC property

thirty years ago, at which time the Presbytery formally acknowledged that renunciation. Because

FPC's action for declaratory judgment seeks nothing more than to effectuate that renunciation,

the relevant statute of limitations bars any complaint the Presb¡ery might level against FPC.

Texas Corporate Law

81. Adherence to Texas corporate law is especially significant in light of the PCUSA

Constitution's explicit instruction that local churches adopt a corporate form "whenever

permitted by civil law." Exhibit D at G-4,0101. Under that provision, congregational

corporations are specifically empowered to exercise all powers pertaining to church property.Id.

82. As a non-profit corporation formed under the laws of Texas, FPC "has the same

powers as an individual to take action necessary or convenient to carry out its business and

affairs." T¡x. Bus. Oncs. Cooe $ 2.101. Among other things, Texas law specifically empowers

corporate entities to: (1) "sue . . . in the entity's business name," (2) "acquire, receive, own, hold,

improve, use, and deal in and with property or an interest in property," (3) "sell convey,

mortgage, pledge, lease, exchange, and otherwise dispose of property," (4) "elect or appoint

ofÍicers and agents of the entity, " (5) "adopt and amend goveming documents for managing the

affairs of the entity," and (6) "conduct its business, locate its offices, and exercise the powers

granted by this code to further its purposes," TEX. Bus. Oncs. Cotp $$ 2,101 &, 2.112.

Importantly, the adoption of corporate form is an unconditional assent to the limits and

procedural obligations imposed by Texas law, unless modified by duly adopted governing


documents where permitted by law. se¿ Tpx. Bus. oncs. co¡n $ $ 2. I 12 &, 2.113.

83. Absent different governing provisions in its certif,rcate of formation or bylaws, a

non-profit corporation's govemance is subject to the default provisions of the Texas Business

Organizations Code. In this case, FPC's original charter expressly claims the full spectrum of

Texas corporate rights. Se¿ Exhibit R at 2 ("[We] do hereby incorporate with att the rights and

powers given by law to such corporations.") (emphasis added). Pursuant to that statutory scheme,

corporate governance is vested in the corporation's Board of Directors, who must act through a

majority of those present at a Board meeting. TBx. Bus. Oncs. Cooe $$ 22.201; 22,214.

Accordingly, the corporation cannot take any action-including the creation or ratification of a

trust-without the majority of its Board of Directors concuning in an appropriate resolution to

that effect. Tnx. Bus. Oncs. Coo¡ çç 22.255 ("4 corporation may convey real property of the

corporation when authorized by appropriate resolution of the board of directors."),

84. The Board of Directors of FPC has never adopted a resolution ratifuing,

approving, or otherwise consenting to a trust in favor of the PCUS, the PCUSA, or any other

denomination. Nor has the FPC Board ever authorized the conveyance of a beneficial interest in

the corporation's property to any other entity. To the extent there is any ambiguity on the matter,

the Board has consistently rejected any external interest in FPC property. See Exhibit K; Exhibit

L; Exhibit G. Under unambiguous provisions of Texas corporate law, any purported action to the

contrary is procedurally defective, ultra vires, and invalid. Indeed, it was precisely this type of

disregard for default statutory corporate procedure that the Texas Supreme Court recently

condemned in Masterson. 422 S.W.3d at 610 ("[U]nder neither the former nor the current

[corporate] statute is an external entity empowered to amend [the corporate bylaws] absent

specific, lawful provision in the corporate documents.").

PLAINTIF'F FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO.A,ND INJUNCTM RELIEF -

VII

CAUSES OF ACTION F'OR DIùCI,AR ATORY .IIIDGMENTAND INJUNCTIVE RELIEF

COUNT I: DECLARATORY JUDGMENT

85. Each and every allegation contained in the above Paragraphs is re-alleged as if

fully stated herein.

86. Under Masterson v. Diocese of Northwest Texas, 422 S.W.3d 594,607 (Tex.

2014), the law applicable to this dispute is clear: "Texas courts must use only the neutral

principles construct" "to determine property interests when religious organizations ¿Ìre involved,"

Accordingly, FPC seeks declaratory relief recognizing that, "on the basis of the language of the

deeds, the terms of the local church charters, the state statutes governing the holding of church

property, and the provisions in the constitution of the general church concerning the ownership

and control of church property," all property held by First Presbyterian Church of Houston or

titled in its name, and any improvements thereon, whether real or personal, corporeal or

incorporeal, is held in fee simple and absolute ownership, without trust for the use and benefit of

the PCUSA or other denomination, or any of its regional administrative units, such as the Synod

of the Sun and the Presbytery of New Covenant. See Jones v, l4rolf,443 U.S. 595,603 (1979).

COUNT II: Tnx. Pnop. Coon $ 22.001 TRESPASS TO TRY TITLE



88. Pursuant to Tex. Pnop. CooB S 22.001, FPC has record title to approximately

thirteen parcels of property, identified in Appendix A, through a regular chain of conveyances

from the sovereignty of the soil, a superior title out of a Common source, andlor title by prior

possession that has not been abandoned.

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJIJNCTIVE RELIEF -

89. FPC is currently in possession of these properties, and it or its predecessor-in-

interest has maintained consistent possession of these properties prior to any assertion of a

proprietary or trust interest by the Presbytery and/or the PCUSA.

90. Title to these properties is affected by the Presb¡ery and the PCUSA's claim to a

trust or beneficial interest, which claims are legally invalid and unenforceable.

COUNT III: SUIT TO QUIET TITLE



92. FPC has record title to approximately thirteen parcels of real property, identified

in the Appendix attached hereto.

93. FPC's right of ownership is suffrcient to warrant judicial interference, and the

Presbytery's claimed interest in trust is a cloud on title that is disturbing FPC's lawful

possession. Because FPC holds title superior to that of any interest claimed by the Presbytery,

FPC seeks to quiet title its properties.

COUNT IV: ADVERSE POSSESSION



95. As set forth in nn72-78, Texas Property Law - Adverse Possession, supra,FPC

long ago acquired fee simple and absolute ownership of all property held in its name. Since

Maroh 12, 1984, when FPC notified the Presbytery of its renunciation of "each and every"

property rule found in the PCUSA Constitution, and certainly since September 15, 1984, when

the Presbytery acknowledged FPC's position, FPC has occupied its properties adversely and on

its own behalf, Exhibit G; Exhibit L. Not only did FPC expressly renounce any interest of the

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJIJNCTM RELIEF -

PCUSA, but it has openly, continuously, physically, and exclusively occupied each of its

properties since that date-almost 30 years ago. Accordingly, FPC both owns the real property

and any right of action that the PCUSA might have had to claim the property is categorically

barred by Tnx. CIv. Pnec. &R¡l'¿. Cooe $$ 16.026; 16.030.

COUNT V: PERMANENT INJUNCTIVE RELIEF



97. In accordance with the declaratory judgment requested in Count I, FPC also

petitions the Court for the permanent and final injunctive relief needed to effectuate this Court's

binding judgment, Specifically, FPC respectfully seeks an order permanently enjoining the

Presbytery from taking any action that might in any way interfere with FPC's exclusive

ownership, use, and control of its property as adjudicated by this Court. FPC further requests that

the requested permanent injunction be granted to the same extent and under the same terms as

requested in Count YI, infra, Application for Temporary Restraining Order and Temporqry

Injunction.

COUNT VI: APPLICATION FOR TEMPORARY RESTRAINING ORDER ANDTEMPORARY INJUNCTION



99. Notwithstanding the wholly frivolous claim the Presbytery asserts over FPC's

property, there is a present, real, and substantial threat that Presbytery will undertake to take over

FPC if FPC simply stands on its right, as it is doing here, to seek a declaration of its property

rights. The PCUSA and Presbytery, acting on its behalf, claim that the mere act of FPC seeking

this adjudication authorizes it to take over FPC-remove its governing session, fire its pastors,

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTIVE RELIEF -

take its bank accounts, and put its property in PCUSA's name. Such a draconian threat, intended

to intimidate local congregations not to assert their rights, should not be tolerated or rewarded,

This is not a threat of conduct after a final, non-appealable judicial declaration has been rendered

in the Presbytery's favor. Rather, the Presbytery is threatening to take such action simply

because a local congregation has the audacity to seek a judicial determination of its rights. For

obvious reasons, such heavy handedness must be restrained and enjoined.

100. FPC is entitled to a temporary injunction to preserye the status quo of the subject

matter of the suit pending a judicial resolution of the merits. See Butnaru v. Ford Motor Co., 84

S.W.3d 198,204 (Tex. 2002). A plaintiff seeking a temporary injunction must plead and prove

three elements: (1) a cause of action against the defendant and a probable right to the relief

sought; (2) aprobable and imminent injury, and (3) an irreparable injury or inadequate remedy at

law. See id. As set forth below, First Presbyterian Church of Houston needs injunctive relief to

protect it from the imminent threat of an irreparable injury.

101. In conjunction therewith, FPC is entitled to a temporary restraining order because

it will suffer immediate and ineparable injury, loss, or damage before a hearing can be held on

its request for a temporary injunction.

A Cause of Action against the Defendant and a Probable Right to the Relief Sought

' 102. The first prerequisite to immediate preliminary injunctive relief is a cause of

action against the relevant defendant, pursuant to which the plaintiff also has a probable right to

the relief sought.

103. As set forth in Count I, Declaratory Judgment, supra, FPC has petitioned this

Court for declaratory judgment to fully and finally adjudicate the congregation's property rights.

Moreover, as set forth in Section VI,'lTI33-84, Civil Jurisdiction and Applicable Law, supra,the


legal principles that govern this dispute are both familiar and well-settled. Just as the Court

would do in any other property dispute, it must now use these neutral principles of state law to

determine who owns the relevant property and whether that property has been encumbered with

any trust interest in favor of another pafiy. Masterson, 422 S.W.3d 594,607. As established by

both the United States Supreme Court and the Texas Supreme Court, the factors relevant to this

question include documents of title, the terms of the local church's charter. the denomination's

constitution, and any applicable provisions of state law. Id,, Jones,443 U.S. at 603. After

conducting a neutral and secular examination of the facts and documents, the lone question for

the court is whether the parties created a trust or other enforceable property interest that is

"embodied in some legally cognizable form" under state law. Jones,443 U.S. at 606.

104. As discussed at length above, there is absolutely no legal basis on which the

Presbytery can claim an enforceable trust in favor of the PCUSA. FPC's corporate charter does

not purport to create any such trust or otherwise serve to establish a proprietary interest in favor

of the denomination. Like all of the deeds to FPC's property since 1894, none of the deeds by

which FPC acquired its current property purport to vest any beneficial interest in the

denomination or anyone other than FPC, Finally, while serving as the sole basis of the alleged

trust, the PCUSA's denominational constitution disclaims its own enforceability.

105. When Texas law is applied to these facts and instruments, there can be liule doubt

that the Presb¡ery's trust claim on behalf of the PCUSA is not legally cognizable, for multiple,

independent reasons. In fact, the property trust claimed by the Presbytery would contravene no

less than six clear provisions of Texas law: (1) Texas trust law requires proof of an intent to

create a trust, (2) if any trust is alleged to have arisen since 1943, it must be created in writing,

(3) if any trust is alleged to have arisen since 1943, it was revocable, (4) parties like FPC who

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJIINCTM RELIEF -

adversely possess property in their own name for the requisite amount of time obtain absolute

ownership, (5) parties such as the Presbytery lose the right to file legal claims after a statutorily

designated period of time, and (6) Texas corporations like FPC can only create and convey

property interests in accordance with their charter, bylaws, and default provisions of Texas

corporate law. Because FPC will almost certainly succeed on the merits of its case, it has shown

its probable right to the relief sought herein.

Probable and Imminent Injury

106. The second prerequisite to immediate preliminary injunctive relief is proof of a

probable and imminent injury.

107. The infliction of areal and immediate injury is not only possible, but it is actually

a standard operating procedure for PCUSA presbyteries faced with civil actions by local

congregations. In fact, the headquarters of the PCUSA, to whom the Presbytery of New

Covenant is answerable, has issued two extreme strategy memoranda for use by lawyers

representing presbyteries faced with litigation. See Exhibit Z. Of particular concern is the

denomination's repeated prodding of presbyteries to implement a device called an

"administrative commission" to seize all local church assets and take control of local church

property. See Exhibit Z.

108. An administrative commission is a small committee of presbytery representatives

self-granted an allegedly unlimited scope of powers under the guise of spiritual emergency. ,See

Exhibit Z. Indeed, the PCUSA has even advised that "[i]f the presbytery has information that

declares a schism is imminent," an administrative commission should be immediately formed

with the authority to "assume original jurisdiction 6vs¡"-fi¡s and replace-the entire governing

session of a church. Exhibit Z at 9. Further, the PCUSA Book of Order ambiguously states that

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJIINCTryE RELIEF -

when there is a"report" that a particular church is "affected with disordet," a presbytery can,

without prior notice or hearing, appoint an "administrative commission" to indefinitely assume

original jurisdiction of the local church. Although the use of an administrative commission is

ordinarily intended to address spiritual matters and operate ecclesiastically to assure sound

doctrine, PCUSA presbyteries have been departing from the customary and expected use of

administrative commissions and have misused them for temporal, civil purposes-as a device to

try and impermissibly expropriate local church property in spite of civil judicial authority.

109. The PCUSA's denominational headquarters has also issued "Advisory Opinion"

Note 19, which in part III thereof warns presbyteries that if they do not act aggressively in using

administrative commissions to take control of local church property, the regional synod will

appoint its own administrative commission to take over control of the presbytery. Exhibit Z.

110. In a heavy-handed attempt to discourage congregations from expressing

disagreement or asserting their legal rights, the PCUSA has made the following

recommendations to presbyteries faced with litigation:

a)disputes, and in conjunction therewith advises how to remove the local pastorandlor governing board of the local church;

b) advise how to freeze local church assets and physically seize property;

c) recommend placing a cloud on local church property titles by filing affrdavitsin property records, irrespective of state law or the facts of any property indispute;

d) recommend mailing letters concerning contested property to any banks orother financial institutions that hold accounts for the local church, which letters"order" that no assets be released to the local church'

e)

;

Ð recommend that presbyteries in their pleadings "use spiritual language" in


order to posture themselves in a positive light, and to negatively refer to the localchurch in the caption and in pleadings as "schismatic"; and

g) recommend to presbyeries, through the use of administrative commissions, totry and keep the local church in a defensive secular legal posture, counseling "Letthe schismatics seek Caesar's help."

See ExhibitZ.

1 1 1. In response to dissent by local congregations against certain denominational

actions, PCUSA presb¡eries have variously: (a) taken acts intended to assert ownership or place

clouds on otherwise merchantable local property titles, (b) recorded, without prior notice,

affidavits or other documents in local mortgage and conveyance records that improperly assert

trusts on local church property in favor of the denomination, regardless of the facts of a local

church's property history or the laws of the state in which local church property is situated; (c)

sought to change locks on local church property without notice and otherwise seize local church

assets; and (d) appointed "administrative commissions" to assert "original jurisdiction" to

supplant existing congregational property control by removing, without notice and opportunity

for hearing, dissenting ministers and sessions.

II2. The threat of retaliation by the Presbytery is not some distant and abstract threat

with which the Presbytery of New Covenant is wholly unfamiliar. In fact, the Presbytery has

adopted and distributed a written policy that advocates the use of administrative commissions for

precisely such purposes. See Exhibit N at 11-13. Specifically, the Presbytery has warned that it

can appoint an administrative commission at any point if it needs "to inquire into and settle the

difficulties of the church in question." Exhibit N at I 1. The administrative commission's claimed

authority is apparently unrestricted and "will be specifically defined for the situation." Exhibit N

at 11.

113. The threat of Presbytery action is imminent. In the context of a church seeking

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND ^A,PPLICATION FOR TRO AND INJUNCTM RELIEF - Page 4l

dismissal from the PCUSA, the Presbytery of New Covenant has warned that "[i]f a

congregation or its leadership preemptively files suit in a civil court against the Presb¡ery," it

may immediately form an administrative commission and take over the church. S¿¿ Exhibit N at

5 n. 1, I 1- 13. According to that policy, a local church who wishes to exercise its right of access to

the civil court system faces the real threat that its pastors and staff will be fired, its goveming

session unseated, its assets frozen, its doors shut, its right to determine its religious affiliation

stripped, its accounts cleaned out, and its property sold. ^See

Exhibit N at 11-13. Because the

Presbytery ostensibly can use, lease, or sell any property it seizes, the Presbytery is actually

incentivized to form an administrative commission as promptly as possible when a suit is filed.

Se¿ Exhibit N at 11-13.

II4. The neighboring Dallas-area PCUSA presbytery, Grace Presbytery, has already

demonstrated the very real threat posed by the misuse of administrative commissions. On May

21, 2012, one day after the congregation of First Presbyterian Church of Longview, Texas voted

by over a 75 percent margin to seek dismissal from the PCUSA, an administrative commission

appointed by Grace Presb¡ery "assumed original jurisdiction" over the Longview

congregation's property. In disregard of the corporate and property rights of the church's

members, the administrative commission substituted itself in place of the session that had been

duly elected by the congregation, and asserted ercatz authority as the new governing body of the

local church in order to seize absolute control ofall property.

115. In other cases, a judicial prohibition has only inspired PCUSA presbyteries to

contrive new ways to separate churches from their property. See Caruollton Presbyterian

Church, Suit Number 565482, l9th Judicial District Court, East Baton Rouge Parish, State of

Louisiana,'Written Findings and Reasons for Judgment Imposing Sanctions, issued July 18,

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTTVE RELIEF -

2013. In Carrollton, the same PCUSA synod that has oversight over the Presbytery of New

Covenant, the Dallas-based Synod of the Sun, conspired with a presbytery similarly situated to

the Presbytery of New Covenant to knowingly and willfully violate a court order in an attempt to

take control of local church property. See id. In fact, the Canollton coutlu found the presbytery's

and synod's efforts to circumvent the court's injunction to be so egregious that it imposed

$390,000.00, plus interest, in sanctions against the two bodies.a

Irreparable Injury and Inadequate Remedy atLaw

116. The third and final prerequisite to preliminary injunctive relief is proof of an

ineparable injury and inadequate remedy at law. Ordinarily, "[a]n injury is ineparable if the

injured party carurot be adequately compensated in damages or if the damages carmot be

measured by any certain pecuniary standard." Butnaru,84 S.W.3d at 204. See also Texas Indus,

Gas v. Phoenix Metallurgical Corp.,828S.W.2d 529, 588 (Tex. App - Houston [lst Dist.] 1992)

(finding no adequate remedy at law when potential damages cannot be calculated).

1I7. Because the requested restraining order and injunction is intended to protect

FPC's title to real property, the inadequacy of any legal remedy is presumed. Tnx. Crv. Pnac. &

Rs\a. CooE $ 65.011(a). In this case, the property implications of this matter will only be

reached after the Presbytery has caused substantial non-pecuniary damage and intenupted the

In imposing sanctions against the presbytery, the district court said, "The PSL has violated professional noÍns,disdained civil authority, and engaged in sanctionable conduct in many ways other than the deliberate violation oftheFebruary73,2009,TRO: InmemorandafiledandsubmittedtothiscourtthePSLcalledtheexerciseofthiscourt's subject matter jurisdiction, or a request by Carrollton that this court exercise its subject matter jurisdiction,'malevolent.' The PSL said that U.S. District Judge Ralph Tyson, a respected African American jurist, did not dohis own work but instead merely 'rubber stamped' the work of others, in effect characierizing him as lazy. PSL2791. The PSL also said that he would be inclined to base his decision conceming remand on the skin color of thelawyers appearing before him. PSL 1695; The PSL said that the work of U. S. Magistrate Judge Stephen Riedlingerexemplified the 'total depravity' of man. PSL 2446; The PSL said that the federal court in Baton Rouge was"compromised," which by definition is to accuse the federal court of being dishonorably corrupt. PSL 2446. T\ePSL flagrantly disobeyed this Court's September 22,2009, Order to produce documents, claiming that it did notknow that 'all persons' meant all persons. The PSL grossly misrepresented case law holdings and rationale andturned cases on their heads, repeatedly urging frivolous legal arguments."

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJIJNCTIV.E RELIEF -

daily ministry of FPC. Before the Presb¡ery can purport to exercise any authority over FPC's

property, it would have to take the extraordinary step of ousting FPC's pastoral staff, governing

session, or Board of Directors, or all three. The forcible removal of every vestige of FPC

leadership would not only have an incalculable effect upon those leaders cast out, but there is no

way of foreseeing how such action might affect the congregation, the school with which it is

affrliated, or the ministries so dependent upon FPC.

118. FPC is a not-for-profit corporation whose sole purpose outside of religious

worship is the spiritual, moral, and emotional edification of its members and non-members

within its sphere of influence. Like any such organization, it is highly dependent upon continuity

of membership, leadership, and fellowship. FPC is dedicated exclusively to serving those in

spiritual and physical need, literally measuring its'impact not in dollars and cents, but in lives

and souls. See, e.g., FPC WnastrE, Our Vision,http:llfpchouston.org/am-site/media/l0lvision-

2020.pdf. Where the interruption of a business might result in lost profits, the interruption of

FPC's ministry could immediately deprive a needy family or individual of the flow of resouïces

on which it has come to depend, both tangible and intangible. Moreover, because the ministries

of FPC often serve those with the greatest need, the disruption of FPC's operations would be

greatly magnified and disproportionately felt by those with the least means.

119. Among the ministries and philanthropic causes which depend on FPC are many

that are dedicated to bettering the lives of people in the city of Houston, the state of Texas, and

even in other countries throughout the world. For instance, one ministry supported almost

exclusively by FPC is The Nehemiah Center, a resource center organized. to "offer[] academic,

emotional, cultural, social and spiritual ernichment for at-risk children and their families in

Houston's Third V/ard and beyond." One specialty program within the umbrella of The

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTTVE RELIEF - page 44

Nehemiah Center is Mommy and Me, a program dedicated to targeting "word poverty," the

tremendous and crippling gap in language development seen in impoverished families. The

Nehemiah Center's Academic Enrichment Program provides inner-city children between

kindergarten and fifth grade with the personalized homework instruction, reading and math

remediation, and mentoring that are critically important to later scholastic success. Yet another

Nehemiah Center initiative, the College Prep Program, offers advanced academic tutoring and

preparation for college entrance exams and admissions decisions. Among the Family Service

Programs also offered by the Nehemiah Center are adult education classes, computer literacy

instruction, financial responsibility training, entreprenernial workshops, English as a second

language (ESL) assistance, parenting seminars, life skills workshops, mental health fairs, and a

Father-and-Son Camp. The philanthropic services offered above serve hundreds of Houston

residents every year, providing resources even the temporary loss of which might never be

remedied.

120. Another ministry that is almost exclusively dependent upon FPC is Main Street

Ministries, which itself administers or supports three more programs. One of those programs,

Operation ID, is an organization formed to help Houston's homeless, indigent, and recently-

released prisoners obtain the vital documents needed to integrate into modern society. Another

program, The Shepherd's Center, operates a crisis service for those facing financial need and

unemployment. Finally, Holy Ground is a ministry dedicated to physically and spiritually

feeding Houston's impoverished and hungry. Altogether, Main Street Ministries devoted more

than $930,000 to supporting its programs last year alone-programs that each depend upon the

prompt availability of resources at the moment of need.

I2I. Other ministries and causes supported by FPC include Bridges International (a


student organization which helps intemational students integrate through service activities, social

networking, and spiritual involvement); Africa Renewal Ministries (a ministry initiative aimed at

training and transforming African leaders); The Micah Project (a charter organization of

Honduran children's homes); Hillcrest AIDS Centre (a South African comprehensive AIDS

outreach program); Millennium Relief and Development (an international catastrophe support

service); and Cullen Middle School (a Houston school boasting a 92 percent rate of student

economic disadvantage). It is no overstatement to say that the benefìts of these organizations

reach thousands of people every year. For obvious reasons, no amount of subsequent monetary

reimbursement would be an adequate remedy for the irreparable damage that would be done to

the mission and ministries of FPC if the Presbytery decided to retaliate against FPC for

exercising its right to adjudicate the issue before Court.

122. As a non-profit administrator of donations and contributions, FPC is heavily

clependent upon the continuous and steady flow of offerings and gifts from its members.

However, the mere uncertainty caused by the pending threat of a Presb¡ery takeover is enough

to stem the flow of resources into the church from anyone who legitimately fears the day that the

Presbytery takes action. Not only is it impossible to quantify such lost contributions, but any

reduction in collections could directly inhibit the ability of the session to routinely fund

international missionaries, make monthly contributions towards college scholarships, and

otherwise spend discretionarily.

123. The concerns expressed above easily exceed the type of irreparable injury needed

to justify preliminary injunctive relief. See, e.g., Sonwalkar v. St. Luke's Sugar Land p'ship,

L.L'P.,394 S.W.3d 186, 201 (Tex. App. - Houston [lst Dist.] 2012) (finding loss of interim

management rights irreparable); Guardian Sav. & Loan Ass'n v. l4/illiams, 731 S.W .2d 107, 108

PLAINTIF'F FPC'S ORIGINAL PETITION ANI) TION FOR TRO AND INJUNCTM RELIEF -

(Tex. App.- Houston [lst Dist.] 1987) (finding consequences of property foreclosure

ineparable); Lifeguard Benefit Servs., Inc, v. Direct Med. Networksolutions, hnc.,308 S.V/,3d

102,I12 (Tex. App. - Fort V/orth 2010) (finding "potential loss of goodwill, loss of reputation in

the industry" irreparable).

I24. In light of the foregoing concerns, likelihood 0f success, and probability of harm,

a temporary restraining order and injunction while this suit is pending is necessary to stay the

hand of the Presbytery from any actions that would adversely affect FPC's longstanding control

of its own property. Temporary injunctive relief would also protect the members of FPC who,

under Texas nonprofit corporation law, are the members of and in effect the shareholders of, the

local church corporation. Compared to the immeasurable damages that might be experienced by

the FPC congregation and those it helps without an injunction, the harm that the presbytery

might suffer because of the requested injunction is wholly immaterial. At present, the presbytery

does not own, use, enjoy, or administer any of the assets or property of FPC, which property only

FPC is positioned to continue operating. A temporary restraining order and temporary injunction

are merely needed to preserve the status quo until such time as the question of ownership, use,

and control of the property of FPC can be determined by the civil courts.

I25. Due to the risk of immediate and irreparable harm that might result before a

hearing can be had on this Application for Temporary Restraining Order, FPC has filed this

Petition ex parte and without notice to the Presbyery. Tex. R. cry. p. 6g0.

126. FPC is willing to post a reasonable bond as directed by the Court.

127. FPC respectfully requests a hearing on its Petition for Temporary Injunction

within fourteen days.

PL.A,INTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICA TION FOR TRO AND INJUNCTM RELIEF -page 47

VIII.

ATTORNEYS'FEES

128. FPC has retained experienced legal counsel to represent it in this action and has

agreed to pay reasonable and necessary attorneys' fees. FPC seeks recovery of its reasonable

attorneys' fees and expenses pursuant to TBx. clv, Pnec. & RsN4. CotB $ 37.009.

PRAYER F'OR RELIEF'

For the reasons stated above, plaintiff, First Presbyterian Church of Houston, prays for a

declaratory judgment in its favor and injunctive relief as follows:

1) Declarator)¡ Judgment - Declaratory relief recognizing the exclusive, complete, andabsolute ownership and control of First Presbyterian Church of Houston over all of itsproperty, both real and personal, together with all buildings, incorporated assets, andimprovements thereon, wherever located, and whether held by, for, or in the name ofFirst Presbyterian Church of Houston, free of any claimed trust interest, divisibleownership right, or beneficial interest by any other party.

2) Injunctive Relief -

That a Temporary Restraining Order, Temporary Injunction, and Permanent Injunction beissued against the Presbytery of New Covenant, Inc., its officers, agents, employees, andcounsel, and any persons or entities in active concert or participation with the Presbytery,or acting by or through the Presbytery or on its behalf or in its stead. This injunctive reliefpertains to all Property held by or for First Presbyterian Church of Houston, bothimmovable (real) together with all buildings and improvements thereon, and movable(personal), whether corporeal or incorporeal, wherever located, whether held by, for or inthe name of First Presbyterian Church of Houston (collectively "Personal and RealProperty"), which immovable Property is more particularly described in the Appendixattached hereto. The Presbytery is enjoined from filing any documents in the mortgageand conveyance records of Harris County to assert ownership, use or control, or righis iodetermine ownership, use or control, to any immovable Property titled in the name ofFirst Presbyterian Church of Houston or to assert a trust on behalf of the Presbytery orother affiliated third party over immovable Property titled in the name of FirstPresbyterian Church of Houston or otherwise held by or for First Presb¡erian Church ofHouston The effect of which would be to place a cloud on the title of said immovableProperty, or otherwise interfere with or disturb Plaintiffs ownership, use, control, ordisposition of Plaintiff s Personal or Real Property, or interfere with Plaintiff s right to

Ix.

PLAINTIF'F FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTM RELIEF - page 48

determine the ownership, use, control, or disposition of Personal or Real Property held byor for First Presbyterian Church of Houston or held in the possession of, control of, orowned by or titled in the name of First Presbyterian church of Houston.

That by Temporary Restraining Order, Temporary Injunction, and Permanent Injunction,the Presbytery of New Covenant, Inc., and any persons or entities in active concert orparticipation with it, on its behalf or in its stead, whether acting directly or indirectly, areenjoined from taking any action that could affect the property rights of First Presb¡erianChurch of Houston, including but not limited to:

a) seeking to change the locks of First Presb¡erian Church of Houston or any of itsbuildings;

b) initiating any disciplinary or other retaliatory action against the employees,officers, ministers or members of First Presbyerian Church of Houston whichdirectly or indirectly arises from or is connected to any property issue raised in,prompted by, or related to the subject matter of this litigation;

c) dissolving First Presbyterian Church of Houston or appointing or initiatingplocesses leading to the appointment of an administrative commission to assertoriginal jurisdiction, directly or indirectly, over First Presbyterian Church ofHouston in order to assume or effect control over the ownership, use, ordisposition of the Personal or Real Property; or,

d) otherwise interfering with the normal duties and responsibilities of the offlrcers,ministers, and employees of First Presbyterian Church of Houston, the governingbody of Plaintiff (the session), or the board of trustees (the governing body ofPlaintiff) or any designees thereof in any way that pertains to the ownership,control, use, or disposition of the Personal or Real Property held by, for orln thename of First Presbyterian Church of Houston, which claims to Plaintiff sPersonal and Real Property are fully adjudicated herein, as reflected by this FinalDeclaratory Judgment.

Nothing in the requested Temporary Restraining Order, Temporary Injunction, orPermanent Injunction shall preclude the Presb¡ery from taking ecclesiastical action fornon-pretextual ecclesiastical cause that is unrelated to this litigation or any property issueraised in, prompted by, related to, or affecting the ownership, control, use, or ãispositionof the Personal or Real Property held by, for or in the name of First Presbyterian Churchof Houston.

3) Reasonable attórneys' fees;

4) All costs of suit; and

5) For all such other further general and equitable relief to which Plaintiff may be entitled.

PLAINTIFF VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTIVE RELIEF -

Respectfully submitted,

Kent CState Bar No. 11714600kkraus e @ c dkl awfirm. c o mCRADDOCK DAVIS & KRAUSE LLP3100 Monticello Avenue, Suite 550Dallas, Texas 75205214-750-35s0214-750-3551 (fax)

William C. FerebeeState Bar No. [email protected]'DONNELL, FEREBEE, MEDLEY &, FRAZER, P.CParagon Center One450 Gears, Eighth FloorHouston, Texas 7706728t-87s-8200281-875-4962 (fax)

Thomas V/. PatersonState Bar No. 15571500tpaterson@susmangodfrey. comSUSMAN GODFREY L.L.P.1000 Louisiana St., Suite 5100Houston, Texas 77002713-651-9366713-654-6666 (fax)

and

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJUNCTM RELIEtr'-

Lloyd J. Lunceford,La. Bar No, 8439lloyd. lunceford@taylorporter. comEugene R. Groves, La, Bar No. 6358Eugene. groves @taylorporter. comRyan K. French, La. Bar No. 34555Ryan. french@taylorporter. comTAYLOR, PORTER, BROOKS & PHILLPS, L.L.P.451 Florida St., 8th FloorBaton Rouge, Louisiana 70801225-38r-027322s-346-80a9 (fax)

Attorneys for Fírst Presbyterían Church of Houston

PLAINTIFF FPC'S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJIJNCTM RELIEF - Page 5l

VERIFICATION

THE STATE OF TEXAS

HARRIS COUNTY

Before me, the undersigned Notary Public, on this day personally appeared JøneCostello, a person whose identity is known to me. After I administered an oath to affrarÍ, affranttestified:

My name is Jane Costello. I am over the age of 18, of sound mind, acitizenof the United States, and fully capable of making this verification.

I have read the PLAINTIFF'S VERIFIED ORIGINAL PETITION FORDECLARATORY JUDGMENT AND APPLICATION FORTEMPORARY RESTRAINING ORDER AND TEMPORARY ANDPERMANENT INJUNCTION, to be filed on behalf of First PresbyterianChurch of Houston. I am familiar with the facts alleged therein.

I have actively attended First Presbyterian Church of Houston for the lasttwenty-five years.

I have served on First Presbyterian Church of Houston's session, thegoverning body of the church, for the last three years. I have also served

three prior terms on the session, each of those terms lasting three years.

I have served as Senior Clerk of Session, the most senior officer of thechurch's session, for the last year.

Because of the extensive breadth of the facts discussed in the Petition,which span more than 175 years, there is no one who has personal

knowledge with regard to the veracity of certain historical statements.

However, due to my unusually long tenure as a member of FirstPresbyterian Church of Houston, as well as my substantial involvement inthe ministries of the church, its governance, and its daily activities, I am as

qualified or competent as one can be to personally attest to the accuracy ofthe factual allegations made by First Presbyterian Church of Houston in itsPetition.

I attest to the truthfulness of the statements and factual allegations in thePetition made with regard to First Presbyterian Church of Houston and itsgovernance over the past fìfteen years, its ministry, and its operations,including its current ministries, its relationship with the Presbytery of NewCovenant, its relationship with the denomination, its renunciation of a

trust, its property holdings, its corporate charter, its corporate bylaws, and

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PLAINTIFF FPC,S VERIFIED ORIGINAL PETITION AND APPLICATION FOR TRO AND INJIJNCTTVE RELIEF - PAgC 52

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Further afftant sayeth not.

its actions concerning dismissal.

With regard to the remainder of the statements and factual allegationsmade in the Petition concerning the formation of First Presbyterian Churchof Houston in 1839, its nineteenth-century property transactions, itsincorporation, its historical property deeds, the historical denominationalconstitutions, historical denominational positions, and historicalcorrespondence with the Presbytery of New Covenant, I did not have thecontemporaneous particular involvement that would enable me topersonally attest to those events. However, I am broadly acquainted withthe events and circumstances which surround and arose out of theseallegations. In connection therewith, I have reviewed the sourcedocuments on which these statements are based, including sessionminutes; General Assembly minutes; PCUS General Assembly officialstatements; published constitutional provisions of the Presbyterian Churchin the United States of America, the PCUS, and the PCUSA;correspondence between First Presbyterian Church of Houston and thePresbytery of New Covenant; Presbytery of New Covenant minutes; andcongregational resolutions. Based upon a reasonable review of thesedocuments, together with my own familiarity with the general subjectmatter, the statements and factual allegations made in the Petition aboutwhich I do not have personal knowledge are also true and correct.

Ø"^4- 0#t/*, CZ/^I-JánlCostello

Senior Clerk of Session, First Presbyterian Church of Houston

Sworn to and subscribed before me this of lli4ay,2014

N Public for the of

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NANCIDANIELLE MOHRNotary Public, State of Texas

Commission Expires 05-13-2018


AppBNux roFirst Presbyterian Church of Houston's Petition

First Presbyterian Church of Houston ("FPC") hereby identifies by legal description those realproperties currently held by, for, or in the name of FPC, which FPC currently possesses andenjoys, to which it holds title, and over which it exercises exclusive control:

Lots Forty-three (43), Forty-four (44), Forty-five (45), Forty-six (46),Forty-seven (7) and Forty-eight (a8) in Block Forty-four (44) of CentralPark Subdivision of the City of Houston, Harris County, Texas;

Lot 9, Block 7 of ORMOND PLACE, a subdivision in Hanis County,Texas, according to the map or plat thereof recorded in Volume 6,Page 43of the Map Records of Harris County, Texas;

Lots Forty-four (44), Forty-five (45), Forty-six (46) and Forty-seven (47)in Colby Court Addition to the City of Houston, Harris County, Texas;

Lots Thirty-six (36) and Thirty-seven (37) and the East Il2 of Lot Thirty-eight (38), of COLBY ADDITION, an addition in Harris County, Texasaccording to the map or plat thereof recorded in Volume 525,Page 422 ofthe Deed Records of Harris County, Texas;

The West ll2 of Lot Eighteen (18) all of Lot Nineteen (19), and the Eastll2 of Lot Twenty (20), of COLBY COURT, a subdivision in HarrisCounty, Texas, according to the map or plat thereof recorded in Volume525,Page 422, of the Deed Records of Harris County, Texas;

Lots One (1) through Fourteen (14), inclusive, COLBY COURT, aSUBDIVISION in Harris County, Texas according to the map or platthereof recorded in Volume 525,Page 422 of the Deed Records of HarrisCounty, Texas;

Lots Twenty-eight (28) and the adjoining West one-half (112) of LotTwenty-nine (29), of COLBY COURT, an addition to the City ofHouston, in Harris County, Texas, according to the map or plat thereofrecorded in Volume 525,Page 422, of the Deed Records of Harris County,Texas;

A tract or parcel of land containing 0.3139 acre (73,672 square feet) ofland situated in the O. Smith Survey, Abstract Number 309, HarrisCounty, Texas; being all of Lots 15 and 16 of Colby Court, an addition tothe City of Houston in Ha:ris County Texas, according to the map thereofrecorded in Volume 525, Page 422, of the Hanis County Deed Records,and being a portion of the abandoned part of Portland Avenue and part ofFractional Lot 4 of Fractional Block 3 of South End Villa Addition, an

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addition to the City of Houston in Harris County, Texas, according to the

map thereof recorded in Volume 1, Page 4, of the Harris county Deed

Records, said tracts out of South End Villa Addition being described as "APortion of the west end of Portland Street and the south end of MilamStreet in the South End Villa Addition" in Warrant Deed from the City ofHouston to T.L. Denman recorded in Volume 523,Page 507 of the HanisCounty Deed Records; and "A part of Fractional Lot 4 in Fractional Block3, South End Villa Addition", conveyed to T.L. Denman in WarrantyDeed recorded in Volume 523, Page 506 of the Harris County Deed

Records; said 0.3I39 acre being that same tract conveyed to The Institutefor Rehabilitation and Research Foundation as described in 'Warranty

Deed Recorded under Harris County Clerk's File Number 2272056;

Lots Forty-two (42) and Forty-three (43) of COLBY COURTADDITION, an addition in Harris County, Texas, according to the map orplat thereof, recorded in Volume 525,Page 422, of the Deed Records ofHarris County, Texas;

Lot Thirty-Three (33) and the adjoining east one-half (ll2) of Lot Thirty-Two (32), Lot Thirty-Nine (39) and the adjoining west one-half of LotThirty-Eight (3S) of Colby Court, an addition to the City of Houston, inHarris County, Texas, according to the map thereof recorded in Volume525,Page 422 of the Deed Records of Harris County, Texas;

Lot Thirty (30) and that portion of Lot Twenty-Nine (29), of COLBYCOURT, a subdivision in Harris County, Texas, according to the map orplat thereof recorded in Volume 525,Page 422, of the Deed Records ofHarris County, Texas;

Lots Forty-Four (44), Forty-Five (45), Forty-Six (46), Forfy-Seven (47),

Forty-Eight (48), Forty-Nine (49), Fifty (50), Fifty-One (51), Fifty-Two(52), Fifty-Three (53), Fifty-Four (54), Fifty-Five (55), and Fifty-Six (56),

of COLBY COURT ADDITION, an addition in Harris County, Texas,

according to the map or plat thereot recorded in Volume 525,Page 422,

of the Deed Records of Harris County, Texas;

All that certain tract or parcel of land situated in the Turner Addition in theoriginal or large Lot No. Fourteen (14) of the Obedience Smith Survey, inthe City of Houston, upon the south side of Buffalo Bayou in Harriscounty, Texas, and consisting of all of Block No. Seventy-six (76) of said

Turner Addition and all that part of Block No. Seventy-four (74) of said

Turner Addition lying south of the south line of Colby Court, and additionto the City of Houston, and west of the west line of Main Street orBoulevard as said Main Street or Boulevard has been widened, and all ofthat part of block No. Seventy-five (75) of said Turner Addition lying west

of the west line of said Main Street or Boulevard as said Main Street or

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Boulevard has been widened, and all of those portions or parts of blocksnumbered Seventy-seven (77) and Seventy-eight (78) of said TumerAddition lying west of the said west line of Main Street or Boulevard as

said Main Street or Boulevard has been widened, and north of the oldcounty farm road now known as Bissonett Avenue as the lines of saidBissonett Avenue are now located or established on the ground, said tractof land hereby conveyed being bounded on the east or southeast side bythe west line of said Main Street or Boulevard as the said west line ofMain Street or Boulevard is now located or established, on the south bythe north line of the old county farm road now known as BissonettAvenue, as the north line of said Bissonett Avenue is no located orestablished, and on the west by the east line of Magnolia Street, and on thenorth by the south line of said Colby Court, and containing five (5) acresof land more or less[, said tract of land reduced as specified in the act ofconveyance between First Presbyterian Church of Houston and HermannHospital Estate, recorded in the Hanis County Deed Records on June 12,

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Such other tracts or parcels of land which may have been inadvertentlyomitted from this Appendix, but which are currently held by, for, or in thename of FPC, which FPC currently possesses and enjoys, to which FPCholds title, or over which FPC exercises exclusive control.

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