Texas Residential Homeowners Protect Act, Section 209.00593

My HOA here in Texas put together an anonymous nomination committee. 4 eligible candidates submitted their names but they refused to put 1 of them on the ballot and will not give a reason. We are a restricted covenant subdivision , a nonprofit corporation, with over 200 l homeowners. I don’t understand why they think Chapter 209 of the Texas Residential Homeowners Protect Act, Section 209.00593, doesn’t apply to our Subdivision. They won’t even respond to the question and dozens of people have asked.  Section 209.00593 states that all those eligible candidates who submit their names will be put on the ballot. What do you think?

ALL 4 that had submitted nomination forms. Highly unlikely.

No, he served 28 years in the Air Force and several years as a Department of Defense employee on base.

I am not sure this proves anything. Regardless, it's up to this disqualified candidate to ask the board, in a polite, formal to-the-point, just-the-facts letter, if they disqualified him on account of TPC 209.00591 and/or to please explain. If the board still will not respond, he's stuck lawyering up. Lawyering up will likely get a response from the Board or the HOA attorney. Cost would be anywhere from a few hundred dollars to a few thousand dollars in attorney fees, which he will never get back.

You owners can help pay for his lawyer, but otherwise, I believe only he has standing to challenge the board legally on this.

Nominating Committees are mandatory in a number of HOAs across the country and their makeup is generally all Board members.

Here is language from a Nominating Committee in Texas....

4.2 NOMINATION AND ELECTION OF BOARD MEMBERS. Each Director shall be elected for a term of three years.

4.2.1 NOMINATING COMMITTEE At least ninety (90) days before the annual meeting, the HOA President shall appoint a nominating committee of five Members, only two of whom may be Directors. This committee shall, not less than sixty (60) days before the annual meeting, nominate a slate for election as Directors to serve for the ensuing three years. This slate shall be posted on the Club bulletin Boards, recorded in the Board of Directors’ minutes, and mailed to the Members at least thirty (30) days prior to the closing of the ballot box. The candidates elected will serve in a dual capacity of governance over XXX Club and XXX Homeowners Association. The committee shall use its best efforts to nominate no less than five Members to fill the expiring Director positions.

The Bylaws state they can do it. BUT the bylaws were written 2009. In 2015 our Legislature passed a statutes called, “ The Texas Residential Home Owners Protection Act”. They changed to law to require that all eligible candidates who turn in request to run be put on the ballot. The only exception is if that person is a felon. He is not a felon. He served 28 years and still serving at DOD for goodness sake. Our State Statute trumps anything written the Bylaw. That bylaw is obsolete. The law says if they put all of those who requested to be ballot, on the ballot, the election is void. That’s our law. They only 3 out of 4 requesters on a ballot. The ballots will counted and the winners will be announced at the annual meeting.

Here is the 2009 bylaw:

ARTICLE V.
NOMINATION AND ELECTION OF DIRECTORS
Section 5.1 Nomination. Nomination for election to the Board of Directors shall be made by a Nominating Committee. Nominations may also be made from the floor at the annual meeting. The Nominating Committee shall consist of a Chairman, who shall be a member of the Board of Directors, and one or more Members of the Association. The Nominating Committee shall be appointed by the Board of Directors prior to each annual meeting ofthe Members to serve from the close of such annual meeting until the close of the next annual meeting. The Nominating Committee shall make as many nominations for election to the Board of Directors as it shall in its discretion determine, but not less than the number of vacancies that are to be filled.

Here is the new law as 2015. Note we are NO in the developers phase:

Sec. 209.00593. ELECTION OF BOARD MEMBERS. (a) Notwithstanding any provision in a dedicatory instrument, any board member whose term has expired must be elected by owners who are members of the property owners' association. A board member may be appointed by the board to fill a vacancy on the board. A board member appointed to fill a vacant position shall serve for the remainder of the unexpired term of the position.
(a-1) At least 10 days before the date a property owners' association composed of more than 100 lots disseminates absentee ballots or other ballots to association members for purposes of voting in a board member election, the association must provide notice to the association members soliciting candidates interested in running for a position on the board. The notice must contain instructions for an eligible candidate to notify the association of the candidate's request to be placed on the ballot and the deadline to submit the candidate's request. The deadline may not be earlier than the 10th day after the date the association provides the notice required by this subsection.
(a-2) The notice required by Subsection (a-1) must be:
(1) mailed to each owner; or
(2) provided by:
(A) posting the notice in a conspicuous manner reasonably designed to provide notice to association members:
(i) in a place located on the association's common property or, with the property owner's consent, on other conspicuously located privately owned property within the subdivision; or
(ii) on any Internet website maintained by the association or other Internet media; and
(B) sending the notice by e-mail to each owner who has registered an e-mail address with the association.
(a-3) An association described by Subsection (a-1) shall include on each absentee ballot or other ballot for a board member election the name of each eligible candidate from whom the association received a request to be placed on the ballot in accordance with this section.
(b) The board of a property owners' association may amend the bylaws of the property owners' association to provide for elections to be held as required by Subsection (a).
(c) The appointment of a board member in violation of this section is void.
(d) This section does not apply to the appointment of a board member during a development period.
(e) This section does not apply to a representative board whose members or delegates are elected or appointed by representatives of a property owners' association who are elected by owner members of a property owners' association.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1026 (H.B. 2761), Sec. 3, eff. January 1, 2012.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1062 (H.B. 3176), Sec. 1, eff. June 14, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1183 (S.B. 1168), Sec. 15, eff. September 1, 2015.

Here is what is says at the end of that Statute:

Sec. 209.017. JUSTICE COURT JURISDICTION. An owner of property in a subdivision may bring an action for a violation of this chapter against the property owners' association of the subdivision in the justice court of a precinct in which all or part of the subdivision is located.

Yes, that is similar to what is stated in our bylaw, but the new State Statute takes precedence over the bylaws. So the bylaw became obsolete on 2015.

Thank you, that is very helpful.

Texas is absolutely an open meeting state both under TPC 209, with the usual exceptions for Executive Session matters. A brief summary of an ES must be presented when the Board emerges from ES.

My bad. Kerry's talking about the board meeting where the members of the nominating committee were appointed. I agree this board meeting should have been open to owners.

The board may consider such a letter a threat of legal action. This would result in:

1) All communications going through the attorney
2) Zero communication from the board to the member

Sometimes, such a letter works.
Sometimes, those on the board simply dig in for the fight.

Kerry, I do agree. A nominating committee is no different than the formation of any other committee. The committee members must be formally named to the committee in a meeting of the Board which is open to members of the Association. The purpose or charter of the committee should also be memorialized unless it already exists in the Declaration of the Association.

They definitely didn’t have a meeting. We were told about the nominating committee through postal mail.

Appointing a committee is not the issue, leaving an eligible homeowner who submitted his name to be on the ballot, and not putting him on the ballot is in direct violations of our rights under the Texas Property Code, Chapter 209 and has consequences. This community was turned over to the developer less than 2 years ago, my guess is they got bad advice and acted on. Now they are trying to rectify it so that is positive.

Say, really, how many "complaints" have you sent this year, Rodger?

She may have been referring to that I sent her the complaints. She did not respond so after several I forwarded them again to the info desk, and I used the template that was provided on this group. I finally received answer that they are working on rectifying the issues. The main one being the ejection issue. I will keep the group posted. It turns the real victim in this the person why they didn’t put on the ballot and it appears he may have already filed suit or is about to.

Just received notice that they fixed the election. They are creating new ballots, to all eligible voters on it, and changing the date of the election. This time it will done right. Thank you all for helping resolve this issue. It took years for homeowners to get rights in this state and we have to have fight hard to keep them. Here is what we received regarding this issue. I only redacted the HOA and POA name. This group was very helpful and we appreciate it.

Dear xx Crossing Homeowners,

After receiving an email from a homeowner informing us of section 5.1 of the community’s Bylaws, the Board of Directors elected to appoint a nominating committee and followed the procedures outlined by this section. Upon further review prompted by multiple xx Crossing homeowners, we have discovered that the nominating committee procedures as set forth by these Bylaws is unlawful.

Moving forward, the nomination committee will be dissolved and will not be utilized for any future elections.

In order to rectify these missteps in the nomination process, we will pushing the Annual Meeting of the Members back to a later date so we may reissue the ballot, with all interested parties included, and the updated meeting notice.

We thank all of the homeowners for their diligence and patience during this confusion.

The notice, ballot, and online election will be reissued today, February 15th 2023.

Xx Crossing Board of Directors and xx

I see in the letter "Upon further review prompted by multiple xx Crossing homeowners..." I'm sure you contributed Rodger and maybe prompted other owners to act. Their pressure on the board & PM clearly made a big difference. Major kudos to you and your fellow owners!!! This shows this board, which imo, seems too secretive, (anon. Nom. Committee members????!!!) to be more open with their discussions &n decisions.

But I see that the board apparently make the decision to change the election date, etc. outside of an open board meeting??? If so, they STILL aren't complying with TX codes. Is it possible their make this new decision by taking a action without a meeting? If so, they must note this action in th next meeting minutes.a meeting and will record the consensus at the next open meeting's meintures?/

A management company that owns its mistakes and corrects them is an excellent investment, IMO. Keep reading at this forum, and see the many reports where boards and management companies dig into an indefensible position, forcing owners to lawyer up or give up.

I to say Management company. The bylaws allowed nominees to be selected by a committee appointed by the BOD. 3 homeowners submitted their names to be on the ballot, ONLY 2 were selected. Texas law requires ALL eligible homeowners who submit a timely request to be put on the ballot. Texas LAW takes precedence over our covenants.

Why muddy the waters, Max? The 209 that Rodger cites is clear.

Rodger, I hafta agree with Bill that your use of language can be confusing. For instance, you write as if bylaws and covenants are the same thing, and in your HOA I'm pretty sure they are not.

But you do not have to "scrub" your Bylaws of its outdated item in this case. TX law rules.

Actually in this case it means just the opposite, the law supercedes the bylaw. And “ notwithstanding” in legal terms means “ despite of”:

Section 209.00593
Election of Board Members

(a) Notwithstanding any provision in a dedicatory instrument, ,,,,,,,