Elections are where owner trust is won or lost
An annual meeting and board election is often the one moment each year when most owners pay attention to their association. A disputed election can tie up a board for months. Texas Property Code Chapter 209 contains a set of election sections, 209.0056 through 209.00594, that override contrary language in most governing documents. This guide summarizes them for Houston-area HOA and townhome boards. Condominium associations are governed by Chapter 82 and their own documents instead.
Notice of the election or vote
Section 209.0056 sets two notice rules:
- Vote taken at a meeting of owners: written notice must go to each owner entitled to vote not later than the 10th day and not earlier than the 60th day before the election or vote.
- Vote of owners not taken at a meeting: notice must be given to all owners entitled to vote not later than the 20th day before the latest date on which a ballot may be submitted to be counted.
The section supersedes contrary requirements in a dedicatory instrument, and subsection (d) allows owner meetings to be held by any method of communication, including electronic and telephonic means as provided by Section 6.002 of the Business Organizations Code.
Soliciting candidates (associations with more than 100 lots)
Under Section 209.00593(a-1), an association with more than 100 lots must, at least 10 days before it sends ballots for a board election, give owners notice soliciting candidates. The notice must explain how an eligible candidate asks to be placed on the ballot and the deadline for the request, and that deadline may not be earlier than the 10th day after the notice is provided. The notice may be mailed to each owner, or posted conspicuously on common property or an association website and e-mailed to each owner with a registered e-mail address (subsection (a-2)). Every eligible candidate who timely asks must appear on the ballot (subsection (a-3)).
In practice, that means a large Houston master-planned community should start its election calendar well before the annual meeting: candidate notice, a 10-day minimum request window, ballot preparation, and then the 10-to-60-day meeting notice.
Who elects board members
Section 209.00593(a) says that, notwithstanding the dedicatory instruments, any board member whose term has expired must be elected by owners. The board may appoint someone to fill a vacancy, and that person serves the rest of the unexpired term. An appointment that violates the section is void. These rules do not apply to appointments during a development period. Filling a vacancy is also on the list of actions the board may only take in an open, noticed meeting under Section 209.0051(h).
Ballots and voting methods
Under Section 209.0058(a), as amended by S.B. 1168 in 2015, a vote must be in writing and signed by the member when it is cast outside a meeting, in an election to fill a board position, on adopting or amending a dedicatory instrument, on increasing a regular assessment or adopting a special assessment, or on removing a board member. Electronic votes under Section 209.00592 count as written and signed ballots, and written signed ballots are not required for uncontested races. The association may adopt rules for secret-ballot voting, with safeguards that each member votes only as many votes as eligible, every eligible vote is counted, and each board candidate may name one observer to the count.
Section 209.00592 lists the ways an owner's vote may be cast: in person or by proxy at a meeting, by absentee ballot, by electronic ballot, or by a representative or delegated method the dedicatory instruments provide. Unless the documents say otherwise, the association need not offer more than one method, but it must allow at least one of absentee ballot, proxy or electronic ballot.
Absentee and electronic ballots count toward quorum only for items on the ballot, are superseded if the owner votes in person at the meeting, and do not count on a motion amended at the meeting. A floor nomination in a board election is not treated as an amendment. A solicitation for absentee ballots must include the exact statutory warning language set out in Section 209.00592(c), so boards should copy it from the statute rather than paraphrase it.
An electronic ballot means one given by e-mail, fax or website posting for which the owner's identity can be confirmed and the owner can receive a receipt. If ballots are posted on a website, owners must be sent instructions for accessing it.
Who may count the votes
Section 209.00594 bars a candidate, a person who is the subject of the vote, or a person related to them within the third degree from tabulating or seeing the ballots. Only the tabulator or a recount official may access ballots, and neither may disclose how an individual voted. Many Houston associations use their management company staff or an independent inspector of elections for this reason.
Recounts
Under Section 209.0057, any owner may demand a recount in writing within 15 days after the later of the meeting date or the announcement of results. The association must invoice the estimated cost within 20 days of the demand, and the owner must pay within 30 days or the demand is considered withdrawn. The recount must be done by a qualified person who is not a member of the association or related to a board member, such as a current or former county judge, county elections administrator, justice of the peace or county voter registrar, or someone agreed on by both sides. Results are due within 30 days after payment, and if the outcome changes, the association reimburses the owner's cost.
Right to vote and to run
Section 209.0059 voids governing-document provisions that would disqualify an owner from voting in board elections or on matters concerning the owner's rights or responsibilities, and Section 209.00591 voids most restrictions on an owner's right to run for the board. Bylaws may require some, but not all, board members to live in the subdivision, and two people who cohabit at the same primary residence may not both serve in an association with 10 or more residences. A board member shown by law-enforcement records to have been convicted of a felony or a crime of moral turpitude within the past 20 years is automatically removed.
Election checklist
- Confirm owner roster, mailing addresses and registered e-mail addresses.
- If over 100 lots, send the candidate solicitation and allow at least 10 days to respond.
- Send the meeting and election notice 10 to 60 days before the meeting.
- Use ballots that include each eligible candidate and the statutory absentee language.
- Appoint a tabulator who is not a candidate or a relative.
- Secure ballots afterward and calendar the 15-day recount window.
Ballot and notice templates are available among these free board templates, and the Texas HOA and condo law overview summarizes the wider statutes. Protige handles election logistics for the Houston HOAs we manage; contact Protige to plan your next annual meeting.
Related: Chapter 209 board basics.