Fall 2024 marks the closing stretch of another highly contentious election season. From local officials and issues such as school board members and bonds, to the U.S. Presidential decision, all different types of signs have appeared or will be appearing throughout communities over the next few weeks. For board members and managers, it is important to know how election signs can be regulated in community associations according to state law.

Section 259.002 of the Texas Election Code limits the ability of community associations to restrict signage within their communities. 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/her property one (1) or more signs advertising a candidate or measure for an election during the time period beginning ninety (90) days prior to the election to which the sign relates, and ending ten (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 (4) feet by six (6) feet, limit quantities to one (1) 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 unregulated.

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 there is an argument to be made that a flag or banner is likely not considered a sign; however, this may come down to a case-by-case basis. 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.  Community associations should contact their attorneys 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 signage. Otherwise, the enforcement action may be subject to legal challenge. Community associations with questions about policies or specific signs should consult with their legal counsel and proceed accordingly.