Texas Property Code § 209.0041: Amending an HOA Declaration (67 Percent Vote Rule)

Quick Answer

Texas Property Code § 209.0041 sets the default vote needed to amend a declaration in a residential subdivision with mandatory association membership: 67 percent of the total votes allocated to owners entitled to vote, unless the declaration itself states a lower percentage. It supersedes contrary requirements in a dedicatory instrument, applies regardless of when the instrument was created, and does not apply during a development period or to amendments that affect a portion of the subdivision with commercial, industrial, apartment or condominium uses. The mixed-use carve-out in subsection (d-1) was added by HB 1659, effective June 15, 2021.

At a Glance

What the Law Says

Scope

Subsection (b) says the section "applies to a residential subdivision in which property owners are subject to mandatory membership in a property owners' association." Subsection (c) excludes an association "subject to Chapter 552, Government Code, by application of Section 552.0036, Government Code." Subsection (a), the original text, was repealed in 2015.

Exclusions

Subsection (d): the section "does not apply to the amendment of a declaration during a development period."

Subsection (d-1): the 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." The subsection 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."

Priority over other documents

• Subsection (e): the section applies to a dedicatory instrument "regardless of the date on which the dedicatory instrument was created."
• Subsection (f): the section "supersedes any contrary requirement in a dedicatory instrument."
• Subsection (g): "To the extent of any conflict with another provision of this title, this section prevails."

Vote required

Subsection (h): "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 of the declaration, in addition to any governmental approval required by law."

Two exceptions follow. Under (h-1), "if the declaration contains a lower percentage than prescribed by Subsection (h), the percentage in the declaration controls." Under (h-2), "if the declaration is silent as to voting rights for an amendment, the declaration may be amended by a vote of owners owning 67 percent of the lots subject to the declaration."

Bylaws

Subsection (i): "A bylaw may not be amended to conflict with the declaration."

What This Means in Practice

For boards

Start with the declaration. If it states an amendment percentage lower than 67 percent, subsection (h-1) says that percentage controls. If it states a higher percentage, the text of (h) uses the word "only" for a 67 percent vote and (h-1) addresses only lower percentages. Our reading: a declaration with a higher threshold than 67 percent is overridden by (f), which supersedes contrary requirements in a dedicatory instrument, but the section does not spell this out. Confirm with counsel before relying on either outcome.

Build a vote tracking record that counts "total votes allocated," not votes cast. The statute measures 67 percent of all votes allocated to owners entitled to vote, so low turnout does not lower the bar.

For owners

The default threshold is a high one. An amendment that cannot reach 67 percent of allocated votes (or the lower percentage in the declaration) does not pass under this section. If you are in a subdivision that contains an apartment complex, a condominium, or commercial or industrial property, the carve-out in (d-1) may take the amendment outside this section, and the declaration's own process would be the place to look. Confirm with counsel.

The mixed-use carve-out

The carve-out is triggered when the amendment "would affect a portion of a subdivision" with a listed use. The phrase "would affect" is not defined. The section also reaches uses that the declaration "specifically allowed" in the past ("previously contained"). Whether a general amendment to, say, rental or architectural rules "affects" a commercial portion of the subdivision is an open question. For the bill history, see HB 1659.

What the section does not say, and open questions

• It sets the vote but this page does not cover notice, ballot or recording mechanics. We did not read those provisions for this page. Confirm with counsel and see the declaration and bylaws.
• It does not say how "total votes allocated" is computed when the declaration allocates votes unevenly. Follow the declaration's allocation.
• It does not address amendments to documents other than the declaration beyond (i), the bylaws sentence.
• It does not address older subdivisions without mandatory membership. Those may fall under Chapter 216 or common-law amendment rules, subject to that chapter's narrow scope.
• Court challenges to board-adopted amendments have turned on joinder and the declaration's own terms. See In re Kappmeyer and JBrice.

Timeline

Related Texas Law

• HB 1659: the 2021 mixed-use limit
• HB 1558: older subdivision amendments (Chapter 216)
• Chapter 216: extension or amendment in certain older subdivisions
• In re Kappmeyer: board-adopted amended restrictions
• JBrice v. Wilcrest Walk: rules versus deed restrictions
• Owner voting and board elections
• Chapter 209 overview
• Texas HOA laws complete guide

Board Checklist

• Read the declaration's amendment clause and note any percentage it states.
• Confirm whether the community is still in a development period, which takes the amendment outside § 209.0041(d).
• Check whether the amendment would affect any commercial, industrial, apartment or condominium portion (subsection (d-1)).
• Track votes against total votes allocated, not votes cast.
• Make sure no bylaw amendment conflicts with the declaration.
• Have counsel review notice, ballot and recording steps before the vote.
• Keep the signed ballots and tally with the recorded amendment.

Frequently Asked Questions

What percentage of owners must approve a declaration amendment in Texas?

Under § 209.0041(h), 67 percent of the total votes allocated to owners entitled to vote, unless the declaration states a lower percentage (subsection (h-1)). If the declaration is silent on voting, it is owners of 67 percent of the lots (subsection (h-2)).

Does this apply while the developer still controls the association?

No. Subsection (d) says the section "does not apply to the amendment of a declaration during a development period."

Does it apply to old declarations?

Yes. The section applies to a dedicatory instrument "regardless of the date on which the dedicatory instrument was created" (subsection (e)).

What did HB 1659 change?

It added subsection (d-1), which takes an amendment outside the section if it would affect a portion of the subdivision zoned for or containing a commercial structure, an industrial structure, an apartment complex or a condominium. It took effect June 15, 2021.

Can the board amend the bylaws to override the declaration?

No. Subsection (i) says a bylaw "may not be amended to conflict with the declaration."

Does this apply to condominiums?

Chapter 209 does not apply to a condominium as defined by Section 81.002 or 82.003 (§ 209.003(d)), and (d-1) separately excludes amendments affecting condominium portions of a subdivision. Condominium declarations are governed by Chapter 82 and the declaration.

Where This Comes From

We read the current text of § 209.0041 as compiled in the 2025 Texas Statutes (Justia mirror of the Texas Property Code), including its amendment history notes. The official statute site is at statutes.capitol.texas.gov. We did not read the notice and ballot provisions that sit in neighboring sections.

How APM Helps

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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.