Can a Texas city require architectural control committee approval before issuing a building permit without violating HB 2439's building-materials law?

Plain-English summary

Horseshoe Bay has subdivisions with restrictive covenants that require an architectural control committee to approve construction plans, including elevations, landscaping, and exterior materials. The City wanted to add a building-permit step: an applicant whose property is in a covenant-restricted subdivision could submit plans to the City only after the architectural control committee had approved them as compliant with the covenants. Through the Burnet County Attorney, the City asked the Attorney General whether that ordinance would run afoul of a 2019 state law limiting government regulation of building materials.

That law is House Bill 2439, which added section 3000.002(a)(1) to the Government Code. It says, "notwithstanding any other law," a governmental entity may not adopt or enforce a rule, ordinance, building code, or other regulation that directly or indirectly prohibits or limits the use or installation of a building product or material in a residential or commercial building if that product is approved for use by a national model code published within the last three code cycles. The AG noted that "notwithstanding any other law" is an unambiguous conflict-of-laws signal, so section 3000.002 prevails over conflicting law to the extent of the conflict.

Applying that to Horseshoe Bay's ordinance, the AG drew a careful line. The ordinance text does not itself regulate any particular building product, so on its face it does not conflict with section 3000.002(a)(1). But the ordinance's whole purpose is to enforce the architectural control committee's rules, and those rules could restrict building products and materials. If a committee prohibits or limits a material that a national model code approves, then by conditioning a permit on that committee's approval, the City would be indirectly prohibiting the same material, which conflicts with the statute. Whether that happens in any given case depends on the specific committee and what it requires. The AG also flagged that a private architectural control committee is not a "governmental entity," so the statute does not restrict what the committee itself can require.

The City also asked a separate question about its power to enforce restrictive covenants. The AG explained that chapter 212, subchapter F of the Local Government Code lets only certain municipalities sue to enforce plat restrictions, those with a population of 1.5 million or more, or those without zoning ordinances, that pass an enforcement ordinance. Horseshoe Bay has fewer than 1.5 million people and does have zoning ordinances, so subchapter F does not apply and the City cannot sue under that specific grant. But as a home-rule city, which looks to the Legislature only for limits on its authority rather than grants of it, the City may still possess authority to enforce other types of covenants by other means, as long as the law does not prohibit enforcing the covenants at issue. The bottom line: section 3000.002(a)(1) bars the City from enforcing covenants that restrict code-approved building materials, but the City may be able to enforce other kinds of covenants.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. House Bill 2439's provisions, the cited Local Government Code and Property Code sections, and the City's ordinances can be amended, so verify current law before relying on any specific rule mentioned here.

What the opinion meant for those who asked

The opinion gave the City and its attorney a framework rather than a yes-or-no stamp on the proposed ordinance. For city officials weighing the architectural-committee permit requirement, the takeaway was that the ordinance was not facially invalid, but it carried a built-in risk: if it ended up enforcing a committee's restriction on a building material that a recent national model code allows, it would indirectly violate section 3000.002(a)(1), and whether that occurred turned on the facts of each committee. For homeowners associations and the architectural control committees themselves, the opinion clarified that the materials-preemption statute restrained the City, not the private committee, so the committee's own contractual authority was untouched. On the broader enforcement question, the opinion told the City that it could not rely on chapter 212, subchapter F to sue, given its size and zoning, but that its home-rule status might supply authority to enforce other covenants, subject to the building-materials limit.

Common questions

Q: What does House Bill 2439 / section 3000.002 do?
A: It bars a governmental entity from adopting or enforcing a rule that directly or indirectly limits the use of a building product or material approved by a national model code published within the last three code cycles.

Q: Is a permit ordinance requiring architectural committee approval automatically illegal under that law?
A: No. The AG concluded that on its face such an ordinance does not regulate building materials. The problem arises only if the committee's rules restrict code-approved materials, in which case conditioning the permit on the committee's approval would indirectly violate the statute. It is a fact-specific question.

Q: Does the statute restrict the architectural control committee itself?
A: No. The committee is a private organization acting under contractual covenants, not a governmental entity, so section 3000.002(a)(1) does not limit what the committee can require.

Q: Can the City sue to enforce restrictive covenants?
A: Not under chapter 212, subchapter F of the Local Government Code, which applies only to municipalities of 1.5 million or more, or those without zoning. Horseshoe Bay has zoning and fewer people, so that grant does not apply. As a home-rule city, it may have authority to enforce other covenants by other means, except those limiting code-approved building materials.

Background and statutory framework

The opinion threads a private-contract subject (restrictive covenants) through a state preemption statute. Restrictive covenants are private contractual arrangements, generally enforced by the parties, those in privity, or other owners in the subdivision (Ski Masters of Tex., LLC v. Heinemeyer; Property Code section 202.004(b)), though the Legislature has granted some local officials limited enforcement authority (Local Government Code section 212.153(a); Property Code section 203.003(a); Water Code section 54.237(b); and Young v. City of Houston on the public-purpose point). House Bill 2439 (Act of May 23, 2019, 86th Leg., R.S., ch. 1289) added Government Code chapter 3000, whose section 3000.002(a)(1) preempts governmental rules limiting code-approved building materials, with "governmental entity" defined by reference to section 2007.002(1)(B). The AG read the "notwithstanding any other law" clause as a conflict-of-laws provision under Molinet v. Kimbrell, then turned to the enforcement-standing question, where Local Government Code subchapter F (sections 212.151 through 212.158) applies only to the municipalities described in section 212.151. There the AG relied on BCCA App. Grp., Inc. v. City of Houston and section 51.072(b) for the home-rule principle that cities look to the Legislature only for limits on their authority.

Citations and references

Statutory provisions:

• Tex. Gov't Code ch. 3000 (regulation of building products and materials)
• Tex. Loc. Gov't Code §§ 212.151-.158 (municipal enforcement of plat restrictions); § 51.072 (home-rule)
• Tex. Prop. Code §§ 202.004, 203.003, 204.011 (restrictive covenants; architectural control committees)

Cases:

• Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d 662 (Tex. App.-San Antonio 2008, no pet.)
• Young v. City of Houston, 756 S.W.2d 813 (Tex. App.-Houston [1st Dist.] 1988, writ denied)
• Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011)
• BCCA App. Grp., Inc. v. City of Houston, 496 S.W.3d 1 (Tex. 2016)

Legislation:

• Act of May 23, 2019, 86th Leg., R.S., ch. 1289 (House Bill 2439)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0333
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0333.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 14, 2020

The Honorable Eduardo Arredondo
Burnet County Attorney
220 South Pierce Street
Burnet, Texas 78611

Opinion No. KP-0333

Re: Whether a city ordinance requiring compliance with certain restrictive covenants before granting a building permit violates chapter 3000 of the Government Code (RQ-0340-KP)

Dear Mr. Arredondo:

On behalf of the City of Horseshoe Bay (the "City"), you ask whether a municipality may enact an ordinance that conditions receipt of a building permit on compliance with certain restrictive covenants where applicable.¹ You explain that "[n]umerous subdivisions exist in the City that have restrictive covenants that require construction plans (including elevations, landscaping and exterior materials) to be approved by an architectural control committee." Request Letter at 1; see also TEX. PROP. CODE § 204.011(a) (recognizing architectural control committees). You further explain that the City would like to adopt the following ordinance:

Building Permit Application Requirements: An applicant seeking a building permit for a project located on property subject to restrictive covenants that require architectural control committee approval, may only submit plans to the City that have been submitted to and approved by the applicable architectural control committee stating that the plans comply with the restrictive covenants for the subdivision where the property is located.

Request Letter at 2. You question whether this proposed ordinance would, if adopted, conflict with recent legislation limiting certain governmental actions concerning residential and commercial real estate. Id.

Before addressing your question, we consider the methods for enforcing restrictive covenants. Restrictive covenants are contractual arrangements between private parties. Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d 662, 668 (Tex. App.-San Antonio 2008, no pet.). They are generally enforced by the contracting parties, those in direct privity of estate with the contracting parties, or, in some instances, property owners in the same subdivision and subject to the same restrictive covenants. See id.; see also TEX. PROP. CODE § 202.004(b) (authorizing a property owners' association to initiate, defend, or intervene in litigation to enforce a restrictive covenant). However, the Legislature also granted some local officials express authority to enforce restrictive covenants in certain instances. See, e.g., TEX. LOC. GOV'T CODE § 212.153(a) (authorizing certain municipalities to enforce a restriction "contained or incorporated by reference in a properly recorded plan, plat, or other instrument that affects a subdivision located inside the boundaries of the municipality"); TEX. PROP. CODE § 203.003(a) (authorizing county attorneys to sue to enforce a restrictive covenant "contained or incorporated by reference in a properly recorded plan, plat, replat, or other instrument affecting a real property subdivision located in the county"); TEX. WATER CODE § 54.237(b) (authorizing a municipal utility district to enforce restrictive covenants in certain circumstances); see also Young v. City of Houston, 756 S.W.2d 813, 815 (Tex. App.-Houston [1st Dist.] 1988, writ denied) (concluding that city's enforcement of private deed restrictions served a public purpose and, thus, did not violate state constitutional prohibition against grant of public money or other thing of value in aid of individuals enforcing private contract).

Against this background, we review the recent legislation about which you ask. The Eighty-sixth Legislature enacted House Bill 2439 to limit certain governmental regulation over residential and commercial real estate.² You ask about Government Code subsection 3000.002(a)(1), adopted through House Bill 2439, which prohibits entities from restricting the use or installation of building products or materials that are approved for use by a recent national model code:

Notwithstanding any other law . . ., a governmental entity³ may not adopt or enforce a rule, charter provision, ordinance, order, building code, or other regulation that . . . prohibits or limits, directly or indirectly, the use or installation of a building product or material in the construction, renovation, maintenance, or other alteration of a residential or commercial building if the building product or material is approved for use by a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building . . . .

TEX. GOV'T CODE § 3000.002(a)(1) (footnote added); see Request Letter at 1. When the Legislature uses the phrase "notwithstanding any other law," courts treat such language as an unambiguous conflict-of-laws provision. See Molinet v. Kimbrell, 356 S.W.3d 407, 413-14 (Tex. 2011). Thus, insofar as subsection 3000.002 conflicts with other law, it will prevail to the extent of the conflict.

The language of the proposed ordinance you provide does not itself adopt a regulation concerning the use or installation of specific building products or materials. Thus, on its face, the proposed ordinance does not appear to conflict with subsection 3000.002(a)(1). However, the purpose of the proposed ordinance appears to be to ensure compliance with rules imposed by an architectural control committee, which could in turn address building products and materials. To the extent that an architectural control committee prohibits or limits the use of certain building products or materials approved for use by a national model code, the proposed ordinance would result in the City indirectly prohibiting use of those same products or materials, in conflict with subsection 3000.002(a)(1). Whether the proposed ordinance would violate subsection 3000.002(a)(1) in a particular instance will depend on the underlying facts surrounding the architectural review committee at issue and the requirements it imposes related to building products and materials.⁴

Apart from the question of section 3000.002's application to the proposed ordinance, you also ask more generally whether the City may enforce restrictive covenants under Local Government Code section 212.151 "if (i) the City does not have a population of 1.5 million, and (ii) the City does have zoning ordinances." Request Letter at 2. Chapter 212, subchapter F, of the Local Government Code addresses municipal enforcement of land use restrictions in plats and other instruments. See TEX. LOC. GOV'T CODE §§ 212.151-.158. That subchapter provides express authority for certain municipalities to sue "to enjoin or abate a violation of a restriction contained or incorporated by reference in a properly recorded plan, plat, or other instrument that affects a subdivision located inside the boundaries of the municipality." Id. § 212.153(a). In essence, it establishes standing for municipalities to sue to enforce restrictive covenants when such standing would not otherwise exist. However, section 212.151 limits the applicability of the subchapter:

This subchapter applies only to a municipality with a population of 1.5 million or more that passes an ordinance that requires uniform application and enforcement of this subchapter with regard to all property and residents or to a municipality that does not have zoning ordinances and passes an ordinance that requires uniform application and enforcement of this subchapter with regard to all property and residents.

Id. § 212.151. You explain that the City does not have a population of 1.5 million and that it has adopted zoning ordinances.⁵ Request Letter at 2; see also HORSESHOE BAY, TEX., CODE OF ORDINANCES ch. 14, §§ 14.02.001-14.02.541 (2020) (collectively "Zoning Ordinance").⁶ Accordingly, subchapter F does not apply to the City, and the City may not file suit to enforce restrictive covenants on private property under the specific grant of authority in chapter 212, subchapter F.

However, the City is a home-rule city.⁷ "Home-rule cities possess the power of self-government and look to the Legislature not for grants of authority, but only for limitations on their authority." BCCA App. Grp., Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex. 2016); see also TEX. LOC. GOV'T CODE § 51.072(b) ("The grant of powers to the municipality by this code does not prevent, by implication or otherwise, the municipality from exercising the authority incident to local self-government."). Thus, the City may possess authority to enforce restrictive covenants through other means, as long as the law does not prohibit enforcement of the types of covenants at issue. Accordingly, subsection 3000.002(a)(1) of the Government Code prohibits a City from enforcing restrictive covenants related to the use of certain building products or materials, but the City may possess authority to enforce other types of covenants.

¹ See Letter from Honorable Eduardo Arredondo, Burnet Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Mar. 20, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0340KP.pdf.

² See Act of May 23, 2019, 86th Leg., R.S., ch. 1289, 2019 Tex. Gen. Laws 3805, 3805-08.

³ "Governmental entity" is defined to include, among others, "a political subdivision of this state." TEX. GOV'T CODE § 2007.002(1)(B); see also id. § 3000.001 (defining "governmental entity" for purposes of chapter 3000 by reference to section 2007.002 of the Government Code).

⁴ Our conclusion does not limit the authority of an architectural control committee itself to enforce limitations on the use or installation of a building product or material. Subsection 3000.002(a)(1) restricts actions of a "governmental entity." TEX. GOV'T CODE § 3000.002(a)(1). It does not address or restrict actions taken by a private organization, such as an architectural control committee, with authority deriving from private contractual agreements between property owners.

⁵ The City of Horseshoe Bay had a population of 3418 according to the 2010 census. See U.S. CENSUS BUREAU, TEXAS: 2010, Population and Housing Unit Counts 96, 138 (Sept. 2012), https:www.census.gov/prod/cen2010/cph-2-45.pdf.

⁶ See https://franklinlegal.net/franklin/Z2.Browser2 html?showset=horseshoebayset.

⁷ See https://www.horseshoe-bay-tx.gov/466/How-the-City-Works.

S U M M A R Y

Subsection 3000.002(a)(1) of the Government Code prohibits a governmental entity from adopting or enforcing a rule that prohibits or limits, directly or indirectly, the use or installation of a building product or material in the construction of a residential or commercial building if the building product or material is approved for use by a national model code published within the last three code cycles.

An ordinance that conditions receipt of a building permit on architectural control committee approval could conflict with subsection 3000.002(a)(1) to the extent that the architectural control committee prohibits or limits the use of certain building products or materials approved for use by a national model code.

Chapter 212, subchapter F of the Local Government Code does not apply to the City of Horseshoe Bay, and the City may not file suit to enforce restrictive covenants under the specific grant of authority in that subchapter. However, as a home-rule municipality, the City may possess authority to enforce restrictive covenants through other means, as long as the law does not prohibit enforcement of the types of covenants at issue.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee