|Concurring Opinion by Justice Guzman
Although I agree with the result reached by the majority, I respectfully
disagree with its construction of section 123.003(b) to provide “that 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 “created or amended on or after September 1, 1985,” and on its face,
it does not “prohibit 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 “single 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 “opt 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 “opting 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
Panel consists of Chief Justice Hedges and Justices Guzman and Brown
(Hedges, C.J., majority).