Law and the Church I

Municipal Clergy Laws

1. List nine (9) laws, or as many as possible if less than nine, concerning clergy that you have found by searching your nearest municipality laws. By municipality, we mean on the village or town level. If there are none, then tell us how you found that out.

There are no municipal laws on Clergy. Checked the Cities online gateway showing all of our cities laws and ordinances. Called my lawyer, a family law specialist, the Offices of Ann Del Llano.

County Clergy Laws

2. If there is a body of laws between the municipality laws and the state/provincial laws where you live, list nine (9) laws, or as many as possible if less than nine, concerning clergy, that you have found by searching this area.

Called the Travis County Clerks Office and received the following laws:

1.     The marriage ceremony may not take place during the 72-hour period immediately following the issuance of the marriage license unless an applicant meets certain requirements such as being in the military or attending a suggested premarital class.

2.     In Texas, the following persons are authorized to conduct marriage ceremonies: A person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony, or A justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county, and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice or judge of those courts, justice of the peace, retired justice of the peace, or judge or magistrate of a federal court of this state. A person meeting the above requirements does not need to apply for permission to marry couples and does not need to register with the County Clerk.

State Clergy Laws

3. List nine (9) laws concerning clergy that you have found by searching your state/provincial

laws.

1.     "Mental health services provider" means an individual, licensed or unlicensed, who performs or purports to perform mental health services, including a: ... member of the clergy; ... §81 Texas Civil Practice and Remedies Code

2.     A mental health services provider is liable to a patient or former patient of the mental health services provider for damages for sexual exploitation if the patient or former patient suffers, directly or indirectly, a physical, mental, or emotional injury caused by, resulting from, or arising out of: (1)  sexual contact between the patient or former patient and the mental health services provider; (2)  sexual exploitation of the patient or former patient by the mental health services provider; or therapeutic deception of the patient or former patient by the mental health services provider. §81 Texas Civil Practice and Remedies Code

3.     "Mental health services," as defined by this section, provided by a member of the clergy does not include religious, moral, and spiritual counseling, teaching, and instruction. §81 Texas Civil Practice and Remedies Code

4.     If a mental health professional who sexually exploits a patient or former patient is a member of the clergy and the sexual exploitation occurs when the professional is acting as a member of the clergy, liability if any under this section is limited to the church, congregation, or parish in which the member of the clergy carried out the clergy member's pastoral duties: (1)  at the time the sexual exploitation occurs, if the liability is based on a violation of Subsection (a);  or (2)  at the time of the previous occurrence of sexual exploitation, if the liability is based on a violation of Subsection(b). §81 Texas Civil Practice and Remedies Code

5.     Texas penal code provides that sexual contact between a minister and another person is without consent and thus a sexual assault if the minister: causes the other person to submit or participate; by exploiting the other person’s emotional dependency on the minister; and the minister was acting in his professional character as a spiritual adviser.  § 22.011(b)(10) Texas Penal Code.

6.     SACRAMENTAL WINE.  Nothing in this code limits the right of a minister, priest, rabbi, or religious organization from obtaining sacramental wine for sacramental purposes only, directly from any lawful source inside or outside the state.  No fee or tax may be directly or indirectly charged for the exercise of this right.  The commission by rule and regulation may regulate the importation of sacramental wine and prevent unlawful use of the right granted by this section. § 109.51. Texas Alcoholic Beverage Code

7.     RELIGIOUS CORPORATION DIRECTOR'S GOOD FAITH RELIANCE ON CERTAIN INFORMATION.  A director of a religious corporation, in the discharge of a duty imposed or power conferred on the director, including a duty imposed or power conferred as a committee member, may rely in good faith on information or on an opinion, report, or statement, including a financial statement or other financial data, concerning the corporation or another person that was prepared or presented by: (1)  a religious authority; or (2)  a minister, priest, rabbi, or other person whose position or duties in the religious organization the director believes justify reliance and confidence and whom the director believes to be reliable and competent in the matters presented. § 22.222. Texas Business Organization Code

8.     APPLICABILITY TO ESTABLISHED CHURCH.  This chapter does not affect the use of the principles or teachings of an established church in ministering, without the use of any drug or material remedy, to the sick or suffering by prayer if: (1)  sanitary and quarantine laws are complied with;  and (2)  the person ministering or offering to minister does not maintain an office, other than to exercise the principles or teachings of the church of which the person is a bonafide member.  § 104.006. Texas Occupations Code

9.     PERSONS REQUIRED TO REPORT;  TIME TO REPORT.  (a)  A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter. (b)  If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code.  A professional may not delegate to or rely on another person to make the report.  In this subsection, "professional" means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children.  The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers. (c)  The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services. (d)  Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only:  (1)  as provided by Section 261.201;  or  (2)  to a law enforcement officer for the purposes of conducting a criminal investigation of the report. § 261.101. Texas Family Code.

National Clergy Laws

4. List nine (9) laws concerning clergy that you have found by searching your national laws.

1.     The term employee of a church or a convention or association of churches shall include—(i) a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry, regardless of the source of his compensation; (ii) an employee of an organization, whether a civil law corporation or otherwise, which is exempt from tax under section 501 and which is controlled by or associated with a church or a convention or association of churches; and (iii) an individual described in subparagraph (E). § 414(3)(B) Employee defined, US Tax Code

2.     A duly ordained, commissioned, or licensed minister of a church is described in paragraph (3)(B) if, in connection with the exercise of their ministry, the minister—(I) is a self-employed individual (within the meaning of section 401(c)(1)(B), or (II) is employed by an organization other than an organization which is described in section 501(c)(3) and with respect to which the minister shares common religious bonds. § 414(e)(5), Special rules for chaplains and self-employed ministers, US Tax Code

3.     In the case of a minister of the gospel, gross income does not include the rental value of a home furnished as compensation or the rental allowance paid as part of their compensation, if such allowance does not exceed the fair rental value of the home, including furnishings and appurtenances such as a garage, plus the cost of utilities. § 107. Rental value of parsonages, US Tax Code

4.     In the case of contributions made by a minister described in § 414(e)(5) to an RIA(Retirement Income Account), the contributions shall be treated as a contribution to a trust and is therefore non-taxable. Additionally, these types of contributions are deductible to the extent such contributions do not exceed the limit on elective deferrals or the limit on annual additions. § 404(a)(10), Contributions by certain ministers to retirement income accounts, US Tax Code

5.     The term “trade or business”, when used with reference to self-employment income or net earnings from self-employment, shall have the same meaning as when used in section 162, except that such term shall not include-..., the performance of service by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order; ,... § 1402(c)(4), Trade or business, US Tax Code

6.     For purposes of this chapter, the term ‘‘wages’’ means all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash; except that such term shall not include remuneration paid—..., for services performed by a duly ordained,commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order; ... § 3401(a)(9) Wages, US Tax Code

7.     Most services you perform as a minister, priest, rabbi, etc., are qualified services. These services include: performing sacerdotal functions, conducting religious worship, and controlling, conducting, and maintaining religious organizations (including the religious boards, societies, and other integral agencies of such organizations) that are under the authority of a religious body that is a church or denomination., IRS Publication 517

8.     “Under regulations to be prescribed by the Secretary of Defense, a Reserve who becomes a regular or ordained minister of religion is entitled upon his request to discharge from his reserve enlistment or appointment. § 12683, Reserve officers: limitation on involuntary separation, US Armed Forces Code

9.     An inmate wanting to receive visits from his or her minister of record must submit a written request to the Chaplain.  Upon approval, unit staff will add the name and title (minister of record) to the inmate’s visitor list. §540.45(d)(1), Qualification As Special Visitor, Federal Bureau of Prisons Regulations

Neopagan Clergy Laws

5. How do laws of your nation, state, or local area respond to Paganism and Neo-Pagan clergy? Are there laws that prohibit certain functions our clergy usually serve (such as divination, counseling, or conducting marriages or funerals)? Does your country implicitly or explicitly state that Neo-Pagans cannot have clergy, or that they cannot perform certain functions or receive similar rights as those from other religions?

On the municipal level, there are no ordinances nor restrictions of any sort on religious sects, their practices, or their teachings. On the state level, and I cannot confirm this via searching the resources I have, if you accept money for fortune telling you must disclaim any value from your services other than that of entertainment purposes.

Self Applicability

6. Looking at those laws listed in questions 1 - 4 and how they affect you, are there any specific laws that seem out of place, unfair, or unjust? What is the avenue for change to these laws, and do you see change to these particular laws as necessary?

On the county level, I simply have to be aware that if I marry a couple in Texas, that I cannot do so before the 72 hour waiting period has passed from when the license was issued, unless I give some sort of marriage class, which I do not think ADF has a program for doing so at this moment. I don’t have the time nor experience to create and give one myself so I’m content with simply waiting the 3 days. Additionally, though I must be ordained or recognized clergy to marry a couple, the County Clerk revealed that every attempt at challenging the validity of a marriage where the wedding officiant was not recognized clergy, the ruling has always been in favor of the marriage. Essentially, Texas cannot determine what it means by who can conduct a marriage ceremony. So, technically, I can marry anyone as long as the couple recognizes me as clergy.

As far as the state is concerned, I am considered a mental health services provider if I perform or purport to perform any mental health service. At that point, I am subject to all laws that apply to Mental Health Service Providers. This means I become liable for saying “ritual is therapy,” or give any kind of non spiritual counseling including pastoral counseling. Really, I can do no other thing besides religious, moral, and spiritual counseling, teaching, and instruction if I want to avoid having myself or ADF become liable for any reason. I would also put myself at further risk if I were to have sexual relations with a person that I was providing or purporting to provide these services to. Additionally, If I sexually exploit a ‘patient’ while performing clergy duties liability falls upon ADF, the Grove, and myself. Texas penal code states that sexual contact between a minister and another person is deemed without consent if the minister exploits the other person's emotional dependency or if the minister was acting in his professional character as a spiritual adviser.

In Texas, there is a clause about sacramental wine in the Alcoholic Beverage Code which states that clergy or church’s ability to obtain wine will not be limited when obtaining it for sacramental purposes only, and that this action should not have any fee or tax placed upon it.

Liability is also waived for any church’s directors who, in the discharge of church duties, act on information obtained in good faith. Essentially, clergy persons and church directors can act upon any information they choose to, including expelling or firing any church clergy or employee, and liability, in the case that legal action is taken, does not fall upon the director or clergy person for acting on false information.

Also Texas law explicitly outlines that it will not affect the use of religious principles or teachings that are without the use of any drug or material remedy, to the sick or suffering by prayer if quarantine laws are complied with and the person ministering doesn’t maintain an office, other than to exercise the principles or teachings of the church which they are a member. To me, this means that as long as you do not administer any kind of herbal remedy, you believe in and are a member of your church, and comply with quarantine laws, then the rest of the Texas Occupations code will not apply to you.

Nationally, the laws primarily only affect me financially. The law clearly defines an “employee of a church” and states that regardless of the source of ones compensation they are considered an employee of a church if they are ordained or licensed by an organization classified under US Tax Code Section 501(c)(3). This is reiterated later in the Code stating that you are a minister if through the exercise or your ministry you are employed by another organization or are self employed. Income for these individuals does not include rental allowance or furnished rental homes provided by ADF or our local Grove as long as certain exceptions are not the case.

 As a clergy person, I can deposit money into a retirement account and not be taxed. I can also deduct these contributions from my taxes as long as certain exceptions are not the case. When, in the exercise of my ministry, I earn self-employment income, the term trade or business in § 162 of the code does not apply to me. If, in the exercise of my ministry, I am paid for services performed, the term wages does not apply to the income. Services that are considered “qualified services” are performed when I perform performing sacerdotal functions, conducting religious worship, and controlling, conducting, and maintaining religious organizations. Any other service is considered provided by me and is considered self-employment services. If I were a Reserves soldier, and became ordained, I could choose to be discharged and it would be granted. If an Inmate requests my services as a Druid, they must put it in writing to their chaplain.

Community Applicability

7. How do you see these laws affecting how you serve your Grove, ADF, or the community as a whole?

As a community, we would have to hold grove weddings after 72 hours of the issuance of the marriage license. If the grove needs sacramental wine, we are not bound by the Alchoholic Beverage code when obtaining said wine. The directors of the grove can rely on any information they choose to when conducting grove business. If the grove does any healing rituals, we must look at the rest of the Texas Occupations code to see in what ways we would become liable by doing so.

Counseling

8. What is the difference between pastoral counseling and other kinds of counseling, and does the law differentiate between these types? What sort of license do you require in your state in order to perform counseling of any type? Does divination fall into this sort of counseling?

Pastoral counseling is any council, administered by an officer of the church or duly ordained minister, in psychological matters from the perspective of religious teachings regarding “life and path”[1]. Other types of counseling do not integrate things such as theology and orthodox teachings from any religion. Divination is neither excluded nor included from this by the law.

The American Association for Pastoral Counselors website states that the Texas Board of Examiners requires that all pastoral counselors have a Masters degree minimum in a field relevant to counseling. 

Mandatory Reporting

9. Describe the mandatory reporting laws in your area and how they affect you as a clergyperson. Explain the process you would go through to file a report if it were necessary.

In Texas, every person, not just Clergy is a mandatory reporter, and no communications of such child abuse or neglect are considered privileged, according to rainn.org and  § 261.101. Texas Family Code. RAINN states that the report should reflect the reporter’s belief that a child has been or may be abused or neglected or has died of abuse or neglect. To the extent known, this report should also contain the name and address of the child, the name and address of the person responsible for the neglect or abuse, and any other pertinent information concerning the alleged abuse.

The report is then made to any local or state law enforcement agency, the Department of Family and Protective Services, or through the texas abuse hotline, among other methods.

Military Laws

10. What are the rules regarding outside worship for any local military base, and what happens if a soldier on that base wants access to a priest who is not in the military or not a military chaplain? If there are no local military bases, what are the general rules?

Called Ft. Hood and the chaplain said there are no official rules regarding outside worship as long as such worship is sought when the soldier is not on duty. If a soldier has needs that the Army cannot fulfill, exceptions can be granted to contract civilian clergy[2].

Prison Ministry

11. What are the regulations and options for prison ministry in your county and state?

Couldn’t find anything online, so I emailed a chaplain acquaintance who stated, “Chaplains provide for all the ministry needs of prisoners in Texas, unless they request a visit from their prefered clergy person.”

Course Objectives

1.     Students will understand the ways in which their local and state laws affect them as potential clergy.

2.     Students will have a knowledge of what their local and state law indicates about counseling and prison ministry.

3.     Students will have a knowledge of what is required for working with their country‟s military in a religious capacity.

Resources

1. Hunter, Rodney J. Dictionary of Pastoral Care and Counseling. Nashville: Abingdon, 1990. Print.

2. Department of the Army. "Army Chaplain Corps Activities." N.p., n.d. Web. 30 Apr. 2013.

3. "Austin, TX Online Resources." Austin, TX Online Resources. Web. 23 Apr. 2013.

4. “Integrity: Ethics and Pastoral Support.” The ADF Leadership Handbook, Chapter 10.

Tucson, AZ: ADF Publishing, 2011.

5. "Texas Constitution and Statutes - Home." Texas Constitution and Statutes - Home. N.p., n.d. Web. 30 Apr. 2013.

6. "FDsys - Browse USCODE." FDsys - Browse USCODE. N.p., n.d. Web. 30 Apr. 2013.

7. "Publication 517 (2012), Social Security and Other Information for Members of the Clergy and Religious Workers." Publication 517 (2012), Social Security and Other Information for Members of the Clergy and Religious Workers. N.p., n.d. Web. 30 Apr. 2013.