Quick Answer
Texas Property Code § 202.004 says a property owners' association's exercise of discretionary authority over a restrictive covenant is "presumed reasonable" unless a court finds, by a preponderance of the evidence, that it was "arbitrary, capricious, or discriminatory." It also confirms the association may start, defend or join litigation to enforce covenants, and lets a court award civil damages of up to $200 per day of violation. The practical takeaway for a board: a documented, consistent, reasoned decision is far easier to defend than an unexplained one.
At a Glance
| Item | Detail |
|---|---|
| Law/citation | Texas Property Code § 202.004, Enforcement of Restrictive Covenants (Chapter 202) |
| Effective date | June 18, 1987 (Acts 1987, 70th Leg., ch. 712). The text we read shows no later amendment |
| Applies to | A "property owners' association or other representative designated by an owner of real property" regarding a restrictive covenant. Chapter 202 applies to both subdivision associations and condominiums unless a section says otherwise (see our Chapter 202 guide) |
| Key sections | (a) presumption of reasonableness; (b) power to litigate; (c) civil damages cap |
| Remedy or penalty | A court "may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation" |
What the Law Says
Presumption of reasonableness
Subsection (a): "An exercise of discretionary authority by a property owners' association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory."
Three things stand out. The presumption favors the association. The challenger carries the burden. And the standard is preponderance of the evidence, not a higher bar.
Power to litigate
Subsection (b) says the association "may initiate, defend, or intervene in litigation or an administrative proceeding affecting the enforcement of a restrictive covenant or the protection, preservation, or operation of the property covered by the dedicatory instrument."
Daily damages
Subsection (c): "A court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation." The word is "may," and the figure is a ceiling, not a set amount.
What This Means in Practice
For boards and managers
The presumption protects decisions, not shortcuts. Our reading: the facts a court would look at to decide "arbitrary, capricious, or discriminatory" are the ones a management file can show, such as whether similar violations were treated alike, whether the rule is in a recorded document, and whether the owner got the notice and hearing Chapter 209 requires. See § 209.006 and § 209.007.
Keep a written reason for each architectural denial and each decision to enforce or to waive. Apply the same standard to every similar lot.
The daily-damages figure is a court remedy in a covenant suit. It is separate from fines the board imposes under its own schedule, which are governed by § 209.0061 and § 209.006 for Chapter 209 associations.
For owners
If you challenge a board decision, expect to carry the burden of showing it was arbitrary, capricious or discriminatory. Photos of comparable lots, prior approvals and the recorded rule text are the usual evidence.
What the section does not say, and open questions
- It does not define "arbitrary, capricious, or discriminatory." Courts apply those terms to specific facts.
- It does not say the presumption overrides a specific statutory limit. Our reading: it does not, because the presumption covers "discretionary authority," and Chapter 202 and 209 limits are not discretionary. Confirm with counsel.
- It does not say how "each day of the violation" is counted or when a violation starts.
- It does not provide for attorney's fees. Fee shifting is addressed elsewhere (for example, § 5.006 and § 209.008).
Timeline
| Date | Event |
|---|---|
| June 18, 1987 | Section 202.004 added (70th Leg., ch. 712, Sec. 1) |
Related Texas Law
- Chapter 202: construction and enforcement of restrictive covenants
- § 209.008: attorney's fees
- § 209.006: notice before enforcement
- § 209.007: owner hearing
- JBrice v. Wilcrest Walk: association rules and deed covenants
Board Checklist
- Record the reason for every enforcement decision and every architectural denial.
- Apply each rule the same way to similar lots, and document any exception and why.
- Confirm the rule being enforced is in a recorded dedicatory instrument (§ 202.006).
- Complete the notice and hearing steps before any fine or fee.
- Do not treat the $200 per day figure as a fine schedule. It is a court ceiling.
- Send litigation decisions through counsel and a noticed board vote where Chapter 209 requires it.
Frequently Asked Questions
What does "presumed reasonable" mean for an HOA board decision?
The court starts from the position that the decision was reasonable. The challenger must show by a preponderance of the evidence that it was arbitrary, capricious or discriminatory.
Can an HOA sue to enforce deed restrictions?
Yes. Section 202.004(b) says the association may initiate, defend or intervene in litigation or an administrative proceeding affecting enforcement of a restrictive covenant.
Is $200 a day the fine an HOA can charge?
No. The $200 figure is a cap on civil damages a court may assess. It is not a fine schedule the board adopts.
Does the presumption apply if the board skipped required notice?
The section does not say. Our reading: skipping a required step is a separate problem from the exercise of discretion, so do not rely on the presumption to cure it.
Does this section apply to condominiums?
The text says "property owners' association," and Chapter 202 generally reaches condominiums unless a section excludes them. Confirm with counsel.
Where This Comes From
We read the current text of § 202.004 and its history note on the Texas.Public.Law mirror, which states it was verified against the official site on May 26, 2025. The official statute site is at statutes.capitol.texas.gov. We did not read court decisions applying the presumption.
Where We Stand
Our position: we support § 202.004. A presumption of reasonableness lets volunteer boards enforce recorded rules without having to prove every judgment call, as long as they act consistently. In practice it only helps boards that keep records. Tip: keep a one-page decision log (date, rule, facts, reason, similar lots checked) for each enforcement or architectural ruling. This is Association Property Managers' operating view as a management company, separate from the legal summary above, and it is not legal advice.
How APM Helps
Association Property Managers provides remote HOA and condo management for associations in Texas, starting at a flat $99/month per community with no per-door fees or long-term contracts. See remote management in Texas, browse every Texas state-law guide, or request a free proposal, delivered within three business days. Laws and licensing rules differ by state, and we confirm the requirements for Texas when we build your proposal.
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.
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