debra-j-meehl-and-mark-meehl-individually-and-as-officers-and-agents-of ( 2009 )

Reversed and Remanded and Majority and Concurring Opinions filed April 7, 2009

Reversed and Remanded and Majority and Concurring Opinions filed April 7, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-00592-CV

_______________

DEBRA J. MEEHL, MARK MEEHL, INDIVIDUALLY AND AS OFFICERS AND AGENTS OF THE MAUREEN J. MEEHL BIPOLAR/BPD FOUNDATION, INC., AND THE MAUREEN J. MEEHL BIPOLAR/BPD FOUNDATION, INC., AN ARIZONA NOT FOR PROFIT CORPORATION A/K/A THE AMEEHL FOUNDATION@ Appellants

V.

ALFRED M. WISE, JR., KATHERINE D. WISE, JOHN P. HUNDL, DONNA G. HUNDL, WILMER CONNER, MARGIE ANN ALEXANDER, JOHN T. HORN, MARTHA G. HORN, JOHN T. HORN, JR., CHRISTOPHER BLAKE BROADWAY, PAULA LEE BROADWAY, JAMES ZIMMER, MILDRED ZIMMER, ROBERT GALILEY, PATRICIA GALILEY, BILLY G. PHILLIPS, BONNIE KAY PHILLIPS, FRANK HLAVINKA, BARBARA HLAVINKA, HOMERO CARDENAS, JANIE CARDENAS, BILLIE A. PIRTLE, RICHARD ALLEN, JOYCE ALLEN, GEORGE E. HURST, THELMA HURST, GARY FRUIDENBERG, A.J. LOWERY, JR., RONALD KORCZYNSKI, KATHY KORCZNYSKI, MATTHEW MOUTON, AND ANNETTE MOUTON, Appellees

On Appeal from the 239th District Court

Brazoria County, Texas

Trial Court Cause No. 37460

C O N C U R R I N G    O P I N I O N

Although I agree with the result reached by the majority, I respectfully disagree with its construction of section 123.003(b) to provide Athat as of September 1, 1985, private covenants restricting the use of property as a community home are not enforceable.@ Ante, at 9.  In addition, I disagree with the reasoning that A[a]lthough section 123.003(b) does not apply to bar enforcement of the restrictive covenant in this case, we must reconcile this section with the conflicting language of section 202.003(b) of the Texas Property Code.@  Id.

In 1985, the Legislature passed the Community Homes for Disabled Persons Act and provided that A[a] restriction, reservation, exception, or other provision in an instrument created or amended on or after September 1, 1985, that relates to the transfer, sale, lease, or use of property may not prohibit the use of the property as a community home.@  Tex. Hum. Res. Code Ann. ' 123.003 (Vernon 2001).  The restrictive covenant at issue in this case was not Acreated or amended on or after September 1, 1985,@ and on its face, it does not Aprohibit the use of the property as a community home.@  Thus, this statute does not apply to the restrictive covenant at issue.

In 1987, the Legislature added section 202.003 to the Property Code.  This section provides that A[a] dedicatory instrument or restrictive covenant may not be construed to prevent the use of property as a family home [now referred to as a community home].@  Tex. Prop. Code Ann. ' 202.003(b) (Vernon 2007). The covenant at issue in this case restricts the use of the property to a Asingle family residence,@ but the Neighbors are attempting to enforce it to prevent the use of the property as a community home.  Unlike section 123.003(b) of the Human Resource Code, section 202.003 of the Property Code does apply, and it prevents the court from construing the covenant in the manner the Neighbors suggest.

There is no tension between the two statutes.  The 1985 statute, enacted contemporaneously with the Community Homes for Disabled Persons Act, states in effect that private parties may not Aopt out@ of newly-enacted Act by creating or amending a restrictive covenant to prohibit the use of the property as a community home.  It directs parties to refrain from drafting or amending a restrictive covenant in a particular way, and it is understandably prospective in its application because one could not draft a covenant Aopting out@ of the Community Homes for Disabled Persons Act before there was such an Act.

In contrast, the 1987 statute is directed at the behavior of courts.  It does not address the way in which covenants written, but instead targets the way in which they are construed.  In effect, it prevents courts from construing a covenant, regardless of its language or date of enactment, to prohibit the use of the property as a community home. 

I therefore would conclude that section 202.003(b) of the Property Code applies and section 123.003(b) of the Human Resource Code does not; I also would not reconcile the two provisions because I do not believe they conflict.  In all other respects, however, I join in the majority=s analysis as well as its disposition of the issues.

/s/        Eva M. Guzman

Justice

Panel consists of Chief Justice Hedges and Justices Guzman and Brown (Hedges, C.J., majority).