Section 259.002 of the Texas Election Code limits the ability of community associations to restrict signage within their communities.[1] Essentially, the Election Code says that community associations may not enforce or adopt a restrictive covenant that prohibits a property owner from displaying on his or her property one or more signs advertising a candidate or measure for an election during the time period beginning 90 days prior to the election to which the sign relates, and ending 10 days after the election date. However, the Election Code continues on to list a number of exceptions to this rule. For example, a community association can require that the political sign be ground-mounted, restrict sizes to require signs be no larger than four feet by six feet, limit quantities to one sign for each candidate or measure, and prohibit signs that contain language, graphics, or any display that would “offensive to the ordinary person.”
Does this mean every community association can start telling people to take down non-compliant signs? Not necessarily. The Election Code simply sets forth parameters for the adoption of a policy or restrictive covenant governing political signage. It does not, by itself, create any automatic or default rules that bind owners within community associations. This means that a community association must have a policy or restrictive covenant prohibiting signs on file with the county before issuing any violations relating to signage.
Further, before telling a homeowner to take down a non-compliant political sign, community association boards should ask this question: “Are we enforcing these rules uniformly?” This does not just mean enforcing the rules with respect to signs for all political parties or viewpoints (although that is important as well), it means enforcing the rules with respect to all non-compliant signs. This might include signs for security companies, “for sale” signs, and signs showing support for a school or sports team. Stated another way, community associations should not cherry-pick certain signs for enforcement while letting others go unchallenged.
Keep in mind Texas Election Code Section 259.002 specifically references political signs. It does not reference political flags or banners. So, does it cover political flags and banners? Technically, from a common usage of the terms, we believe that a flag or banner is not considered a sign. Regardless, if you are having issues with political flags and banners, we recommend you consult with your attorney to discuss your options on how to best address them.
In the event that litigation ensues, a community association could find itself exposed to a judgment for damages in favor of a homeowner if the community association is found to have (1) enforced the provisions of the Election Code without a recorded policy or restrictive covenant in place; (2) enforced a policy or restrictive covenant that violates the Election Code; or (3) enforced an otherwise enforceable policy or restrictive covenant in an arbitrary, capricious, or discriminatory manner.
In summary, community associations wishing to restrict signage, banners and flags must have a policy or restrictive covenant prohibiting such items with the knowledge that Section 259.002 of the Election Code provides some protection for political signs. You should work with your attorney to have any additional rules/policies that comply with the Election Code in place and on file with the county before proceeding with enforcement, and any such enforcement should be uniform across all types of non-compliant signs. Otherwise, the enforcement action may be subject to legal challenge. Community associations with questions about policies or specific signs should consult an attorney and proceed accordingly.
[1] The relevant statutory language used to be located in Chapter 202 of the Texas Property Code, but was moved as part of the 2019 legislative session.
