Dilemma in Texas over CC&R’s with Amendments vs: Resolutions

I am in need of a clarification on the actual use of a Resolution. Our board seems to think they can create a resolution that is directly opposed to what the CC&R’s stipulate and pass it with a majority vote of the HOA board, thus (In my stupid opinion) nullifying the Amendment process and taking away the rights of the whole membership to vote on an issue.
For example only: Say our CC&R’s state a property owner SHALL not raise livestock (Pigs, chicken etc) for any commercial purpose. Then along comes this new board with 3 out of 5 who actually want to raise pigs, cows or any type of livestock for resale. This new board makes a motion to create a Resolution stating this…..The resolution is brought to the next HOA meeting, and a vote by this new board passes 3-2……
This in my (stupid opinion) overrides the actual CC&R’s and creates an issue where the board has not held up to its Fiduciary obligations to the entire membership.
What say you?

A resolution cannot amend the CC&Rs by itself without some enabling higher authority. Only a vote to amend as described in the CC&Rs can amend the document.

BUT . . . The Texas Legislature modifies TPC209 and other laws which affect homeowners associations from time to time, I can see how a Board resolution to adopt the new property code provisions may have validity. We would not do business that way, we would have the Board approve an amendment to the association documents, file the amendment(s) in the usual manner with the County Clerk, and send a copy to each owner.

The CC&Rs are a higher authority, so to speak, than a board resolution just as the Texas Property Code is a higher authority than the association documents.

Now, before you go too much further on this, you should research what the Texas Legislature enacted in the 2021 session regarding Property Code Section 209 HOAs, chickens, and possibly other farm animals. I did not pay close attention as we have no TPC209 clients but it may be germane to your question.

Pardon. I meant the CC&Rsrequire a vote of the owners en masse to amend.

With BillH & Aug, if your CC&Rs state that xx of owners must vote to amend them, then that's the way it is. For the board to pretend that a resolution that opposes a CC&R is as legitimate as a true amendment is dishonest

Do be aware of BillH10's caveats re: Texas associations.

Are you on the board, Kenneth?

Regarding caveats: Texas statute TPC 202 is another statute that Texas HOA owners and board members need to keep an eye on, because the statute may override certain covenants. For example, TPC 202.007 highly limits HOAs and their boards in restricting drought resistant landscaping.

This is issue-dependent and state, municipal, or county-dependent. I agree that bona fide regional (or global and national) emergencies may often translate to covenants, bylaws and rules going out the window, and the courts will approve.

It's interesting you brought this up. Our lawyer told us that we could not do this. We avoided this issue since we ended up rewriting our entire documents and having the owners vote on them.

I remember him making some quip like, "HOA's have the right to be stupid and include illegal passages in the documents but they'll never be able to enforce them if challenged."

See my replay to AugustinD. We didn't give them the option to vote down all or part of an amendment. The only option they had was to vote down the entire document(s). This was a total rewrite.

You are correct. The issue came up because the previous Board considered an amendment that would allow owners to enclose their porches or build additions on their concreate patios. (Limited Common Areas.) This can't be done because the S.C Horizontal Property Act says you can't. They simply didn't care.

On a side note, I was recently told by a good friend of mine that the current Board is considering allowing a homeowner to enclose their patio into a sunroom. As the old saying goes, "You can't fix stupid".