Sharing preliminary voting results

My HOA (in Texas) is conducting a membership vote for an amendment to the Declaration. The Declaration requires a supermajority to amend (2/3 of total members). The vote is via electronic and absentee ballots and does not take place at a membership meeting. The voting time period is somewhat indefinite and will only end once 2/3 votes FOR or 1/3 votes AGAINST are received. There seem to be numerous procedural errors with this approach (bylaws require voting at a meeting, bylaws only allow in person or proxy voting, and absentee and electronic voting is not specifically allowed by the bylaws).

The board has been periodically releasing preliminary voting results (i.e. 100 votes FOR, 20 votes AGAINST). Notwithstanding all of the other procedural issues, can the board release the preliminary voting results? This seems counter to the way voting is done in a democratic society. Is there precedence in other elections where the results are tabulated and released while voting is still ongoing?

By my reading, TPC 209.00592 now allows a Texas HOA to have votes exclusively by absentee ballot. See https://statutes.capitol.texas.gov/Docs/PR/htm/PR.209.htm. Please read this statute section and tell me if you agree or disagree.

While this hypothetical vote is proceeding, the board needs to consider how many owners voted but have sold their homes and moved. The votes of these owners need to be discarded.

Increasingly HOAs are doing exactly as this HOA is doing. Other than the caveat about owners moving, I do not see any illegalities.

I see no statute being violated by releasing the progression of voting as absentee voting goes on. Nor do I see any violation of fiduciary duty.

Just remember that every time a home is sold, one must check to see if a vote had been cast, remove that vote and allow the new member to vote.

OR

You have a deadline (voting must be in by mm/dd/yyyy)

I am changing my previous answer, or at least elaborating on it. For what it is worth:

I disagree. Whether votes can be cast exclusively by absentee ballot depends on a HOA's bylaws.

I agree.

I agree.

Yes, I buy this. Though I am keeping in mind that if there is a conflict between TPC 209 and BO 22, TPC 209 would control here. Not that there is a conflict. I am just trying to get things down that might be relevant here.

If using the reasoning in the Rockwall POA Memorandum Opinion (specifically the first paragraph on page 8), then I now think that absentee voting is in fact not allowed in this case.

The caveat is that Memorandum Opinions like this are not binding in any case except the Rockwall one.

I am not quite convinced that the Rockwall memorandum opinion got things right. But I would like to set my doubt aside for now and go with the reasoning in the memorandum opinion. Because the latter is what you could use to argue that absentee voting is not allowed.

Your first post seems to say absentee voting is in fact not allowed under the bylaws and statute. I now agree.

Communicating via this medium is difficult. Tell me where you are at, and if you wish, I will respond further.

Or YOU still have the opportunity to end this by casting a no vote.

Kerry,

The OP said that there was no end date. What if it takes 5 years to get enough signatures and there were 100 homes sold during that time.

I agree that if there was a set date for the polls to close, then the record date for who can vote would be valid.
Otherwise, in the example above, in those 5 years you would be amending the covenants and not allowing 100 lots have a say in it.

Personally, I think your board is attempting an action without a meeting for the membership (as there was no meeting date set and no end date for the votes).

The TX code for NONPROFIT CORPORATIONS does not address action without a meeting (voting by written consent). It does address action without meetings for Directors and Committees. This can lead to an argument of Expressio unius est exclusio alterius OR in other words: "the expression of one thing is the exclusion of the other"

Now the TX business code for FOR-PROFIT CORPORATIONS does mention a ACTION BY LESS THAN UNANIMOUS WRITTEN CONSENT (technically not applicable to a corporation/HOA formed under the non-profit statutes) and it specifies:

Per that statute:

(b) Except as provided by this code, the certificate of formation of a filing entity may authorize the owners or members of the entity to take action without holding a meeting, providing prior notice, or taking a vote if owners or members of the entity having at least the minimum number of votes that would be necessary to take the action that is the subject of the consent at a meeting, in which each owner or member entitled to vote on the action is present and votes, sign a written consent or consents stating the action taken.

c) A written consent or consents described by Subsection (b) must include:

(1) the date each owner or member signed the consent; and

(2) the date of signing of the latest dated consent satisfying the minimum number of owners or members necessary to approve the action that is the subject of the consent.

(c-1) The date described by Subsection (c)(2) must be not later than the 60th day after the date of the signing of the earliest dated consent of the owners or members signing the consent or consents.

(c-2) By a provision in the written consent or consents . . . may be made to take effect at a future time, which must be not later than the 60th day after the date the last of the minimum number of owners or members necessary to sign the consent or consents as required by Subsection (b) have signed the consent or consents.

IN SUMMARY:

1) Per the non-profit act the Association may not have the members take action by written consent.

2) Per the for-profit act [likely not applicable, but if it was], the Association would have a total of 60 days to achieve the 400 votes starting from the earliest date on all of the written consents.

Therefore, in my opinion, I don't think the Association can even do what it is doing.
However, if they insist that they can (and I would seek a legal opinion), and they do not have a due date then every vote after the 60 day mark would require removing some votes and recast by the then current owner of the property.

Example: Day one you receive 5 written consents.
Day 60 your count is 1 vote short of passing.
Day 61 you receive a written consent dated on day 61
Unfortunately, the 5 written consents you received on Day one can no longer be counted and you are now 5 votes short.

Conclusion:

At best, the amendment might withstand a legal challenge if it had a 60 day due date.
At worst, the amendment would not withstand a legal challenge because the board exceeded it's authority in allowing written consents (vs voting at a meeting)

I would strongly recommend obtaining a written legal opinion.