(Texas) Does a POA have to allow a member a choice of proxy or absentee ballot

Started by RogerJ1 • 11 replies • 384 views

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RogerJ1 (Texas)
Posts: 550

Posted:

Does a board have to give an owner the choice of the two, proxy or ballot, or can the board limit it to only of those two?

Reading the law, I could see someone making both cases, but based on the last sentence of what I am quoting, I think the board would have to allow an owner the choice of the two.

Texas Property Code 209.00592

(a) Subject to Subsection (a-1), the voting rights of an owner may be cast or given:

(1) in person or by proxy at a meeting of the property owners' association;

(2) by absentee ballot in accordance with this section;

(3) by electronic ballot in accordance with this section; or

(4) by any method of representative or delegated voting provided by a dedicatory instrument.

(a-1) Except as provided by this subsection, unless a dedicatory instrument provides otherwise, a property owners' association is not required to provide an owner with more than one voting method. An owner must be allowed to vote by absentee ballot or proxy.

Whole law: https://codes.findlaw.com/tx/property-code/prop-sect-209-00592.html

AugustinD
Posts: 3,698

Posted:

IMO the point of the last sentence is to require HOAs to provide a means for owners to vote in absentia. Either absentee ballot or proxy accomplishes this.

Grammatically I cannot find support for a contention that the last sentence was intended to require HOAs to provide both options to owners. If the intent were as you suggest, I think the language would be much more clear. E.g. "The Property Owners' Association must offer to all owners both the option to vote by absentee ballot and the option to vote by proxy."

BarbaraT1 (Texas)
Posts: 821

Posted:

Quote:

Posted By RogerJ1 on 01/19/2022 12:29 PM
Does a board have to give an owner the choice of the two, proxy or ballot, or can the board limit it to only of those two?

Reading the law, I could see someone making both cases, but based on the last sentence of what I am quoting, I think the board would have to allow an owner the choice of the two.

Texas Property Code 209.00592

(a) Subject to Subsection (a-1), the voting rights of an owner may be cast or given:

(1) in person or by proxy at a meeting of the property owners' association;

(2) by absentee ballot in accordance with this section;

(3) by electronic ballot in accordance with this section; or

(4) by any method of representative or delegated voting provided by a dedicatory instrument.

(a-1) Except as provided by this subsection, unless a dedicatory instrument provides otherwise, a property owners' association is not required to provide an owner with more than one voting method. An owner must be allowed to vote by absentee ballot or proxy.

Whole law: https://codes.findlaw.com/tx/property-code/prop-sect-209-00592.html

This is a question for an attorney, who will probably give you an answer like '"it could be argued that it means X". Ultimately interpreting the law is a job for judges, if it comes to that.

The intent of the law is to provide the owners a means of voting other than appearing in person at the annual meeting. With that in mind, I read that sentence as an owner must be allowed to vote by either absentee ballot or proxy as an alternative to attending the meeting.

Is this a theoretical discussion or is there a current debate in your association? A directed proxy (which requires the proxy holder to vote as the member instructs) or an absentee ballot with an option to have the ballot count for quorum only will solve whatever problems might arise from offering one over the other.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By BarbaraT1 on 01/19/2022 12:55 PM

Is this a theoretical discussion or is there a current debate in your association? A directed proxy (which requires the proxy holder to vote as the member instructs) or an absentee ballot with an option to have the ballot count for quorum only will solve whatever problems might arise from offering one over the other.

It is a real scenario, and the Board will only offer a "general" proxy, no directed proxy nor absentee ballot. Also annual meeting, next month, is in-person only. No remote option.

KerryL1 (California)
Posts: 14,550

Posted:

Seems like the Board wants to limit the # of voters. (Where have we heard that before?) But, why, Roger? Are there more candidates than opening? Do certain directors want to maintain power by limiting voting options?

BillH10 (Texas)
Posts: 1,217

Posted:

Roger

I agree with Kerry. Given that a Texas Association may do so, why would the Association not wish to offer a proxy for the purposes of obtaining a proxy (only), a general proxy (which, in practice, most often designates the President of the Association as the proxy holder by a check box) or another named individual, or a directed proxy in which the proxy holder is instructed exactly how to vote on any matter which comes before the meeting, including the election of directors.

Where is this coming from? Are one or more of those on the present Board who are on the ballot concerned the electorate may not agree they are best suited to serve, or is there a controversial issue on the ballot?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Roger

The BOD can offer any Proxy they want but an owner does not have to use the BOD Proxy. An owner can submit their own made up Proxy. The last signed/dated Proxy is the one that counts.

BillH10 (Texas)
Posts: 1,217

Posted:

Yes, John, that is a great point and I forgot all about it.

As long as the document submitted contains the information and signatures necessary, it matters not if it is on the form the association provided or the back of an old grocery bag.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnC46 on 01/20/2022 9:35 AM
Roger

The BOD can offer any Proxy they want but an owner does not have to use the BOD Proxy. An owner can submit their own made up Proxy. The last signed/dated Proxy is the one that counts.

ADD ON

Roger

If your going to take them on with collecting alternative Proxies, I suggest you have an attorney draw it up to close down any question(s) on its legality.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

If a general proxy (no ballot items nor place to note vote) were provided would the Board have to accept a directed proxy (list that member's vote for the agenda items) the member wrote?

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By JohnC46 on 01/20/2022 1:47 PM

ADD ON

Roger

If your going to take them on with collecting alternative Proxies, I suggest you have an attorney draw it up to close down any question(s) on its legality.

No collection of proxies, just one.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By RogerJ1 on 01/20/2022 7:40 PM

If a general proxy (no ballot items nor place to note vote) were provided would the Board have to accept a directed proxy (list that member's vote for the agenda items) the member wrote?

Roger

I am not nor do I play lawyer but I would say the BOD has to accept your Proxy and act accordingly be it General or Directed.

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