Affirmed and Opinion filed July 23 , 202 4.

In The 

## Fourteenth Court of Appeals

NO. 14

- 23

- 00668

- CV

BENJAMIN J. CORBIN AND CINDY NICOLE KROTH , Appellant s

V.

THE COMMONS OF LAKE HOUSTON PROPERTY OWNERS ASSOCIATION, INC

. , Appellee

On Appeal from the 127 th District Court Harris County, Texas Trial Court Cause No. 2022

- 70631

O P I N I O N

Does the 2021 en actment of Property Code section 202.023 preclude a property owner s ’ asso ciation from e nforcing a restrictive covenant which prohibits
the construction of fencing or other structures in a recreational easemen t that
burdens a portion of each lot within the property owners ’ association ? Tex. Prop. Code Ann. § 202.023 ( “ Security Measures ” )

. In a matter of first impression for this court, we conclude that alt hough the re servation of the recreational easement
remains valid
, the property owners ’ association is prohibited by statute from2 enforcing a restr i ctive coven ant which preven t s a property owner from building or installing security measures, such as a perim eter fence , in the recreational easem ent
at issue

.
T he trial court denied the application o f appellants B en jamin J . Corbin and Cindy Nicol e K roth (th e home owners ) for a w rit of temporary injunction seeking

to bar app ellee T he Commons of Lake Houston P roper ty Owners Association, Inc. (the Association) from approving fencing request s that encroach on a recreational

easement reserved by the A s sociation on ea ch tract o f land within the A ssociation

. In this interlocutory appeal, the homeowner s raise two issues a rgu ing the trial co urt erred in (1) denying their application for temporary injunction and (2) interpreting and apply ing Property Code section 202. 023. Tex. Prop. Code Ann. § 202.023

. We
affirm the trial court ’ s o rder

.
I. B ACKGROU ND

The homeowners own rea l pr operty in Harris County
, subject to a mandatory
property owners ’ association known as T he Commons of L ake Houston
, Inc

. 1 , 2
The Association i s governed by a De cl a ration of Coven ants , Conditions and Restrictions (the Declaration) that create s an d reserv e s a n easement “for any purposes of the associat i on including, but not limited to, greenbelt, hiki ng, biking,

1 A property owners ’ association is a designated representat ive of the owners of property in a subdivision and may be referred to as a “ homeowners association, ” “ community association, ” “ civic as sociati o n, ” “ civic club, ” “ as sociation, ” “ committee, ” or similar term contained in the restrictions. Tex. Prop. Code Ann. § 204.004 (a )

. 2 A property owners ’ association “ must be nonprofit and may be incorporated as a Texas nonprofit corporation

. ” Tex. Prop. Co de Ann. § 204.004(b) . The record reflects that the Association is incorporated as Texas nonprofit co rporation under the name “ T he Commons of Lake Houston P roper ty Owners Association, Inc. ” Howev er, t he Declaration refers to the Association as “ The Commons of Lake Houston, Ltd. ” B ecause it is not challenged or objected to b y any party, we will consider the Decla ration in the record to be an oper ative document for the Association.3 horse trails, Co mmon [Area]s, drainage and service of u t ilities.” Each lot or tract is
burdene d by this recreational easement on the ba ck 20 feet o f the lot. The Declaration also contains a p rovi sion that prohibits any “ structure, planting, or
other materia l ” from being placed in the recreational easement or i n terfer ing with

“ passage along such common or private road Easements or w hich would interfe r e

w ith maintenance thereof. ” The Declaration fur ther provides the Association is

c harged with maintaining the common

- area easements including the recreational

easement.

U nt i l 2021, the Association prohibit ed the construction of fencing or oth er improvements w it hin the easement through its rest rictive covenants

. In 2021, the legislature enacted Property Code section 202.023 which states that “a property owners’ association may not adop t or enforce a restrictive covenant that prevents a
propert y owner from b uild ing or installi ng security meas ures, inclu din g but not
li mited to a security camera, motion detector, or perimeter fence.” Tex. Prop. Code Ann. § 202.023 (b)

. After section 202.023 went into effect
, the Association began approving requests for pe rimet er fen ces that encr oac hed on t he easement.
In 2022, the homeowners f iled suit against the Association asserting b reach of contract, breach of the declaration, promissory estoppel, negligence, and aiding and abetting

. The homeowners also sought t emporary a n d perm anen t injunc tion s di recting the Association to deny all applications t hat encroach on the easement.

In 2023 , the trial court signed an or der denying the homeowners’ application
for a writ of temporary i njunction. The trial court’s order st ated :

Tex. Pr op. Code § 202.023, relating to sec urity measures, prevents the Defendant from enforci ng those provis ions of the Amen ded, Restate d and Consolidated De claratio n of Covenants, Conditions and Restrictions for The Commons of Lake Houston Sections I, II, III , I V, V , VI, VII, VIII, X and XI record ed under Harris County Clerk ’ s File No. Y503501 ( “ t he deed restric tions ” ) that wou ld prevent t he4 installation of pe rimeter fences within the common area easements, and therefore Plaintiffs ’ Application for th e above

- re fer enc ed injunctive relief should be D ENIED. The homeowners appeal from this order denying their application for writ of
temporary injunction

. 3

II. A NALYSIS

A. Standing
Before addressing the merits of the case, we first consider the trial court ’ s jurisd icti on, as wel l as our own. 4 “ Subject matter jurisdiction is essential to the authority of a court to decide a case. ” Tex as Ass ’ n of Bus. v. Tex as Air Control Bd.
, 852 S.W.2d 440, 443 (Tex. 1993)

. “ Because standing is required for subject

- matter jurisdicti on , it can be

— an d if in doubt, must be

— raised by a court on its own at any time. ” Fin ance Comm ’ n of Tex. v. Norwood , 418 S.W.3d 566, 580 (Tex.
2013 )

. We review a question of standing de novo. Tex as Dep ’ t of T ransp. v. Ci ty of
Sunset Valle y , 146 S.W. 3d 637, 646 (Tex. 200 4)

.
T he homeowners allege that the Declara tion expressly autho rized the m to
enforce the restrictive covenant creati ng an easement : Declarant, the Association, or any Ow ner will have th e r ight to enforce, by any pro cee ding at law or in equity, all restrict ion s, conditions, covenants, and reservations now or hereafter imposed by the provisions of this Declaration, Declar ant and the Association shall have the right t o enfor ce, by proceedin g a t law or in equity all

rese rva tions, liens, ass essments and charges imp osed by the Declaration. Declar ation, art

. XI, section 1. T he D eclaration therefore gives the homeowners the

3 “ A person may appeal from an interlocutory order of a distri ct court

. . . [ tha t ] grants or refuses a temporary injunction[.] ” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(4).

4 The homeowners ’ st anding was not challenged in the trial court, nor was it raised the parties ’ appellate briefs. At this court ’ s request, the par ties did sub mit briefing on s t anding.5 lega l authority to ac t

. Although the recreational ease ment is reserved for “ any purposes of the asso cia tion, ” the homeowners are me mber s of the A ss ociation and the Declaration specif ically provides that al l the covenants, conditions
, and
easements created in the De clar ation “ shall in ure to the be nefit of each Owner
thereof. ” See Tex. Prop. Code Ann. § 204 .00 4 (members hip of associatio n co nsists
of ow ners of property within subdivision subject to property owners ’ association) ;
Houston Laureate Assoc s

. , L td. v. Russel l , 504 S.W.3d 550, 557 (Tex. App.

— Houston [ 14th Dist.] 2016 , no pet.) ( property owners had sta ndi ng to enfo rce easement be caus e agreeme nt creat ing easeme nt specifically conveyed ease ment for
benefit of residential property owner s and their land ). Therefore , we conclude that
the homeown ers ha ve standi ng to brin g the underlying lawsuit and th is appeal.

B. Temp orary injun ction

The tr ial court ’s or der states the trial court denied the temporary

- injunction applicat ion because the homeowners had not shown a probable right to the relief sought. T he trial court analyzed the statute and determine d that t he r elief sought b y the homeowners was p rohibited b y law. Therefore, we consider issues one and two together because the t rial court ’ s analysis of the statute determined its decision to deny the applica tion for temporary injunction.

1. Standard of review
The purpose of a temporary injunct ion i s to preserve th e status quo of the litigation ’ s subject matter pendin g a trial on the merits. Walling v. Metcalfe, 8 63
S.W.2d 56 , 57 (Tex. 1993)

. To obtain a temp ora ry injunction , the applicant must plead and prove three specific elements : (1) a caus e of actio n against t he defendant; (2) a probable right to the relief sough t; and (3) a probable, imminent, and irreparabl e injury in the interim. Butnaru v. Ford Motor Co

. , 84 S.W.3d 198, 204 (Tex. 2002)

. An injury is irreparable if the injured par ty cann ot be adeq uately6 comp ensated in damages o r if the damages cannot be measure d b y any certain pecuniary standa rd. Canteen Co rp. v. Repub lic of Tex. Props., Inc. , 773 S.W. 2d 398, 401 (Tex. App.

— Dallas 1989, no writ).
Whether to grant or deny a tempora ry injun ction is w ithin the t rial court ’ s sound discretion. Butnaru , 84 S.W.3d at 2 04

. We review an order denying a temporary inju nction for a buse of discretion. Id

.
2. Easement and restrictive covenant at issue

T h e D eclara tion create d bot h an e asement an d a restrictive c oven ant relating to fencing on th e ba ck of each lot in the property owne r ’s associati on.

“ Unlike a possessory interest in land, an easement is a nonpossessory interest that authorizes its holder to use the property for only particular purposes

. ”
Marcus Cab le Assoc s

. , L.P. v. Krohn , 90 S.W.3d 697, 700 (Tex. 2002) (citing
Res tatement (Third) of Prop .: Servitudes § 1.2 (1 ) ( Am. L aw Inst. 2000) ). An

easement does n ot convey tit le to property. Steph en F. Austin State Univ. v. Flynn
, 228 S .W.3d 65 3, 658 (T ex. 2007 ). Her e, th e Dec laration reserved a n eas ement , a nonpossessory right to use, for a ll members of the Ass ociation on the back 20 fee t
of each lot for recreational purposes

.
I n contrast, a “re strictive covenant” as d efined by statute is “ any covenant,
conditi on, o r restricti on conta ined in a dedicatory instrument, wh ether mandatory, prohibitive, pe rmissive, or administrative

. ” Tex. Prop. Code Ann. § 202.001(4)

. 5
The restrictive cov enant in the Declaration preserved access to the recreational

eas ement by prohibit ing a ny “ struc ture, planting, or other materia l ” from being

5 T he Declaration at issue is a dedicatory instrument as defined by stat ute. See Tex. Prop

. Code Ann. § 202.001 (“‘Dedicatory instrument’ means each document governing the establishment, maintenance, or operation o f a residential sub division . . . . The term includes a declaration or similar instr ument subjecting real propert y to . . . restric tive covenants, bylaws, or similar instruments governing the administration or operation of a property owners’ association”).7 placed in the recreational easement or i n terfer ing with “ passage along such

common or private road Easemen ts or which would interfere with maintenance
thereof. ” 6
The supreme co urt h as aff irmed the legi slature ’ s intent that restrict ive

coven ants not proscribed by stat ute should be “l iberally con strued to give effect to its purpose and intent.” Teal Trading & Dev., LP v. Champee Springs Ranches
Pr op. Owners Ass ’ n , 593 S.W.3d 324, 339 ( Tex. 2020) (quo ting Tex. Prop . Code
Ann. § 202.003(a) )

. However , the leg islature has e nacted statutory restrictions or limitations on the ability of property owner ’ s associations to create a nd enforce
certain restr ictive cove nan ts. S ee Teal Trading & Dev. , 593 S.W.3d at 339 ; s ee
gener all y Tex. Prop . Code Ann. §§ 201.001

– 216.014. Therefore, we consider now
whether section 202

. 023 has proscribed the enforcement of the restrictive co venant
that prevents the placement of fencing in the re creational easem ent

.
3. The st atu te
Prope rty Code secti on 202.023 states that “a property owners’ association
may not adop t or enforce a restrictive covenant that prevents a propert y owner from b uilding or installi ng security meas ures, inclu din g but not li mited to a security came ra, motion detect or, or perimet er fence.” Tex. Prop. Code Ann. § 202.023 (b)

. 7 The stat ute does not prohibit a property owners’ association from regul ating the type of fencing that a property owner m ay install. Te x. Prop. Cod e

6 Whil e the re serv ation of the easement itself is not a ffected by section 202.023
, access to the easement
, throug h enforcement o f the restrict ive c oven ant that restricts the use of all lots within the Asso ciation
, may be affected

. 7 Although it does not bea r on our stat ut or y const ruction analysis , we note that section 202.023 was enacted to address reports that some property owners’ associations were pr ev enti ng homeowners from installing security measures such as fen ces, motion de tectors , and securit y
camera s. See S enate C om m. on Bus. & Indu stry, Bill Analysis, Tex. C.S.H.B. 3571, 87th Leg., R.S. (2021). T he bill anal ysis state s that the purpose of the l eg islation was to ensure that homeowners can adequately protect their homes. Id

.8 Ann. § 2 02.023(c).
Construction of statutory la nguage is a qu est ion of law we revie w u sing the
de novo standa rd. Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 437 (Tex. 2009)

. When constr uing a statute, the court’s primary objective is t o give
effect to l egislat ive intent. Colorado C n ty. v. Sta ff , 510 S.W.3d 43 5, 4 44 (Tex. 2017)

. “T he plain me a ning of the text is the best expression of legislative intent unless a different meaning is appar ent from the con text or the plain meaning leads

to absurd or non sensical results.” Molinet v. Kimbrell , 356 S.W.3d 407, 41 1 ( Tex

. 2011)

. When in ter preting the l egislature ’ s words, however, we must never “rewrite the statute under the guise of interpreting it,” and it is not appropriate to rely on
document s beyond the s tatutory text for assistance in determining legislative in ten t

u n less the statut ory text is su s ceptible to more than one reasonable interpretation.
See In re Ford Motor Co. , 442 S.W.3d 265, 2 84 (Tex. 2014); Tex. Mut. Ins. Co. v. Ruttiger , 381 S.W.3d 430, 4 52 (Tex. 2012).

4. Application to the facts

The homeowners ar gue th at enforcement o f t h e reser ved recreation a l

easement and section 202.023 are compatible. They assert that the Association can enforce the easement in such a manne r that perimeter fences are approved only if they do not e ncroach on the r ecrea tional ea sem ent. In oppositi on, th e Association

argues the pl ai n l a nguage of t he statute prohibits the as sociation from denying or limiting the ability of property owners to install perimeter fen cing.

The question raised by the arguments of the par tie s i s how the t erm “per imeter fence” ap p lies. The statute d oes not contain a definition for the term “perimeter fenc e” or “ perimeter. ” Therefore, we look to the ordinary or common meaning. See Code Construction Act, T ex. Gov’t Code Ann. § 311.011 (words and ph rases const rue d acc ording to common usage). “ P e r imeter ” as applicable here is9 de fined as “ (1) the boundary of a closed

- plan e figure; (2) a line or strip bounding or protecting an area; and (3) outer limits

. ” Perimeter , Merriam

- Webster .com, h ttps://w ww. m erriam

- webster .c o m/ dictionary / perimete r (last visited July 18
, 202 4 )

. Therefo re, t he common usage of the term “perimeter fence” describes a f

enc e around the boundar y o r outer limits of a pr operty. This statutory construction analysis supports the arguments made by the A sso ciation.

O ther pro vis ions in Pro perty Code chapter 202 support this interpretation. In
section 20 2.012, the legisla ture proh ibit s a property owners’ ass oci ation fr om

re stricting the display of certain flags; however, the statute specifica lly provides
th at a “reasonable dedi ca tory instrum ent provision” may be enforced to comply with “applicable zoning ordinances, easeme nts, and setback s of record [.]” Tex.
Pr op. Code Ann. § 202.012. A lthough a property owners’ association may not prohibit th e display of ce rt ain religious items
, the legislat ure made an exception for
the enforcement of restrictive covenant s if the display o f a relig ious it em would violate any ea sement. T ex. P rop. Code Ann. § 202.018. Similarly, the statute s addressing enforceme nt of restricti ve covenants on swimm in g pools, stand

- by

gen erators , and solar devices contain significantly mo re exceptions a nd discussion
of w hen and h ow prop erty owners’ associa ti o ns may enforce restrictive covenants with respect to those items. See Tex. Prop. Code Ann

. § § 202.007, .010, .01 9, .022.
In sum mary , the language of section 202.023 refl ects a clear and unambiguous
intent to prohibit p roperty owners’ associations from re s tr icting the abi lity of
homeowners to fence the perimeter of their property

. 8

Because we a gr ee with the trial cou rt that th e hom eowners did not establish

a probable right to the relief sough t giv en the application of se ction 202.023, w e

8 To the extent that the r eal argument r a is ed by the home o wners is th at the language o f section 202.023 as enacted is too br oad , that is a n a rgument to make to the legislature, not the courts.10 conclude the trial co urt did n ot er r in denying the homeowner ’ s application for a writ of temp orary injunctio n

. We overrule issues one and two.

III. C ON CL USION

We affirm t he trial court ’ s order den ying the homeow ner s ’ appli cation for a writ of t e m p orary inju nction as chall enged on a ppeal.

/s/ Charles A. S pain Justi ce

P a n el c on sist s of Jus t i ce s Wise, Bourliot
, a n d Spain

.