Texas HB 1659 (Property Code 209.0041(d-1)): Declaration Amendments in Mixed-Use Areas

Quick Answer

Texas House Bill 1659 (2021) added Property Code § 209.0041(d-1). It says the statutory procedure for amending a declaration in § 209.0041 "does not apply to an amendment of a declaration if the amendment would affect a portion of a subdivision that is zoned for or that contains, or previously contained as specifically allowed under the declaration, a commercial structure, an industrial structure, an apartment complex, or a condominium." It applies only to votes held on or after its effective date. The statute's history note gives June 15, 2021.

At a Glance

What the Law Says

New subsection (d-1)

The bill adds: "This section does not apply to an amendment of a declaration if the amendment would affect a portion of a subdivision that is zoned for or that contains, or previously contained as specifically allowed under the declaration, a commercial structure, an industrial structure, an apartment complex, or a condominium as defined by Section 81.002 or 82.003."

It defines "apartment complex" as "two or more dwellings in one or more buildings that are owned by the same owner, located on the same lot or tract, and managed by the same owner, agent, or management company."

Transition clause

Section 2 says (d-1) "applies only to a vote to amend a declaration held on or after the effective date of this Act. A vote to amend a declaration held before the effective date of this Act is governed by the law as it existed immediately before that date, and that law is continued in effect for that purpose."

What § 209.0041 otherwise does

For context, the section as currently published says it applies to a residential subdivision in which owners are subject to mandatory membership in a property owners' association (subsection (b)). It supersedes contrary requirements in a dedicatory instrument (f) and, in a conflict with another provision of Title 11, prevails (g). Unless a lower percentage is in the declaration, a declaration may be amended only by a vote of "67 percent of the total votes allocated to property owners entitled to vote on the amendment" (h), and if the declaration is silent on voting rights, by owners of "67 percent of the lots" (h-2). It also does not apply to amendments during a development period (d). H.B. 1659 adds a further carve-out.

What This Means in Practice

For boards

• Before using the § 209.0041 vote rules, ask whether the amendment "would affect" a portion of the subdivision that is zoned for, or contains (or previously contained as the declaration specifically allowed), a commercial or industrial structure, an apartment complex or a condominium. If so, (d-1) says the section does not apply.
• The test is about the portion of the subdivision the amendment would affect, not the whole community. A mostly single-family subdivision with one commercial parcel could still raise the question. How broadly "affect" reads is an open question for counsel.
• When (d-1) removes the amendment from § 209.0041, our reading is that the amendment is governed by the declaration's own amendment terms and other law instead. The bill does not say what replaces the section, so confirm with counsel.
• Check zoning and the declaration's history. "Previously contained as specifically allowed under the declaration" brings in structures that used to exist.

For owners

• If you are asked to vote on a declaration amendment in a mixed-use or partly commercial subdivision, ask the board which procedure applies and why.
• The 67 percent default in § 209.0041(h) is not available for amendments within (d-1) (our reading).
• The transition rule matters only for votes held before the effective date.

What the law does not say

• It does not define "affect" or "portion."
• It does not state the vote percentage or procedure for amendments outside § 209.0041.
• It does not say whether a single townhome project inside a subdivision counts as an "apartment complex." The definition requires two or more dwellings in one or more buildings, owned by the same owner, on the same lot or tract and managed by the same owner, agent or management company.
• It states no penalty or remedy.

Timeline

Related Texas Law

• § 209.0041: amending the declaration
• Chapter 209: Residential Property Owners Protection Act
• H.B. 1558 (2023): amending restrictions in older subdivisions
• Chapter 82: Uniform Condominium Act
• Texas HOA laws complete guide

Board Checklist

• Pull the plat, zoning designations and declaration for any amendment you plan to put to a vote.
• List any commercial, industrial, apartment or condominium parcels, current or formerly allowed under the declaration.
• Ask counsel whether the proposed amendment would affect those portions.
• Choose the amendment procedure only after that answer; document the reasoning.
• Confirm the vote threshold in the declaration and, where § 209.0041 applies, the 67 percent default.
• Keep ballots and recording records for any amendment vote.

Frequently Asked Questions

What did H.B. 1659 change?

It added § 209.0041(d-1), which says that section does not apply to a declaration amendment that would affect a portion of a subdivision zoned for or containing a commercial or industrial structure, an apartment complex or a condominium.

When did it take effect?

The statute's history note gives June 15, 2021. The bill says immediately on a two-thirds vote, otherwise September 1, 2021.

Does it apply to votes held earlier?

No. Section 2 says (d-1) applies only to a vote held on or after the effective date, and earlier votes are governed by prior law.

What is an apartment complex under the bill?

"Two or more dwellings in one or more buildings that are owned by the same owner, located on the same lot or tract, and managed by the same owner, agent, or management company."

What vote is needed if (d-1) applies?

The bill does not say. Section 209.0041 will not govern, so look to the declaration's amendment clause and other law and confirm with counsel.

What is the usual § 209.0041 vote?

Absent a lower percentage in the declaration, 67 percent of the total votes allocated to owners entitled to vote (subsection (h)), or 67 percent of lots if the declaration is silent on voting rights (h-2).

Where This Comes From

We read the enrolled text of H.B. 1659 (87th Legislature, Regular Session), including the vote record and effective-date clause, at capitol.texas.gov, and the current text and history note of § 209.0041 on Texas.Public.Law (verified there May 2025). The enrolled copy shows a blank governor approval line, so we did not verify a signing date. The June 15, 2021 effective date comes from the section's history note. We did not read § 209.0041 after the 2025 session beyond that mirror.

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Legal disclaimer: This article is general information, not legal advice. Laws change and associations differ. Confirm the current statute text and how it applies to your governing documents with a licensed Texas attorney before acting.