Affirmed and Opinion filed July 23, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00668-CV

BENJAMIN J. CORBIN AND CINDY NICOLE KROTH, Appellants

V.

THE COMMONS OF LAKE HOUSTON PROPERTY OWNERS 

ASSOCIATION, INC., Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2022-70631

O P I N I O N

Does the 2021 enactment of Property Code section 202.023 preclude a

property owners’ association from enforcing a restrictive covenant which prohibits

the construction of fencing or other structures in a recreational easement 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 although the reservation of the recreational easement 

remains valid, the property owners’ association is prohibited by statute from 
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enforcing a restrictive covenant which prevents a property owner from building or 

installing security measures, such as a perimeter fence, in the recreational easement 

at issue.

The trial court denied the application of appellants Benjamin J. Corbin and 

Cindy Nicole Kroth (the homeowners) for a writ of temporary injunction seeking

to bar appellee The Commons of Lake Houston Property Owners Association, Inc.

(the Association) from approving fencing requests that encroach on a recreational

easement reserved by the Association on each tract of land within the Association.

In this interlocutory appeal, the homeowners raise two issues arguing the trial court 

erred in (1) denying their application for temporary injunction and (2) interpreting 

and applying Property Code section 202.023. Tex. Prop. Code Ann. § 202.023. We

affirm the trial court’s order.

I. BACKGROUND

The homeowners own real property in Harris County, subject to a mandatory 

property owners’ association known as The Commons of Lake Houston, Inc.

1, 2

The Association is governed by a Declaration of Covenants, Conditions and 

Restrictions (the Declaration) that creates and reserves an easement “for any 

purposes of the association including, but not limited to, greenbelt, hiking, biking, 

1 A property owners’ association is a designated representative of the owners of property 

in a subdivision and may be referred to as a “homeowners association,” “community 

association,” “civic association,” “civic club,” “association,” “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. Code Ann. § 204.004(b). The record reflects that the 

Association is incorporated as Texas nonprofit corporation under the name “The Commons of 

Lake Houston Property Owners Association, Inc.” However, the Declaration refers to the 

Association as “The Commons of Lake Houston, Ltd.” Because it is not challenged or objected 

to by any party, we will consider the Declaration in the record to be an operative document for 

the Association.
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horse trails, Common [Area]s, drainage and service of utilities.” Each lot or tract is 

burdened by this recreational easement on the back 20 feet of the lot. The 

Declaration also contains a provision that prohibits any “structure, planting, or 

other material” from being placed in the recreational easement or interfering with

“passage along such common or private road Easements or which would interfere 

with maintenance thereof.” The Declaration further provides the Association is 

charged with maintaining the common-area easements including the recreational 

easement.

Until 2021, the Association prohibited the construction of fencing or other 

improvements within the easement through its restrictive covenants. In 2021, the 

legislature enacted Property Code section 202.023 which states that “a property 

owners’ association may not adopt or enforce a restrictive covenant that prevents a 

property owner from building or installing security measures, including but not 

limited 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 perimeter fences that encroached on the easement.

In 2022, the homeowners filed suit against the Association asserting breach 

of contract, breach of the declaration, promissory estoppel, negligence, and aiding 

and abetting. The homeowners also sought temporary and permanent injunctions

directing the Association to deny all applications that encroach on the easement.

In 2023, the trial court signed an order denying the homeowners’ application

for a writ of temporary injunction. The trial court’s order stated:

Tex. Prop. Code § 202.023, relating to security measures, prevents the 

Defendant from enforcing those provisions of the Amended, Restated 

and Consolidated Declaration of Covenants, Conditions and 

Restrictions for The Commons of Lake Houston Sections I, II, III, IV, 

V, VI, VII, VIII, X and XI recorded under Harris County Clerk’s File 

No. Y503501 (“the deed restrictions”) that would prevent the 
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installation of perimeter fences within the common area easements, 

and therefore Plaintiffs’ Application for the above-referenced 

injunctive relief should be DENIED.

The homeowners appeal from this order denying their application for writ of 

temporary injunction.

3

II. ANALYSIS

A. Standing

Before addressing the merits of the case, we first consider the trial court’s 

jurisdiction, as well as our own.4 “Subject matter jurisdiction is essential to the 

authority of a court to decide a case.” Texas Ass’n of Bus. v. Texas Air Control Bd., 

852 S.W.2d 440, 443 (Tex. 1993). “Because standing is required for subject-matter 

jurisdiction, it can be—and if in doubt, must be—raised by a court on its own at 

any time.” Finance Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 580 (Tex. 

2013). We review a question of standing de novo. Texas Dep’t of Transp. v. City of

Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004).

The homeowners allege that the Declaration expressly authorized them to 

enforce the restrictive covenant creating an easement:

Declarant, the Association, or any Owner will have the right to 

enforce, by any proceeding at law or in equity, all restrictions, 

conditions, covenants, and reservations now or hereafter imposed by 

the provisions of this Declaration, Declarant and the Association shall 

have the right to enforce, by proceeding at law or in equity all 

reservations, liens, assessments and charges imposed by the 

Declaration.

Declaration, art. XI, section 1. The Declaration therefore gives the homeowners the 

3 “A person may appeal from an interlocutory order of a district court . . . [that] grants or 

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

4 The homeowners’ standing was not challenged in the trial court, nor was it raised the 

parties’ appellate briefs. At this court’s request, the parties did submit briefing on standing.
5

legal authority to act. Although the recreational easement is reserved for “any 

purposes of the association,” the homeowners are members of the Association and 

the Declaration specifically provides that all the covenants, conditions, and 

easements created in the Declaration “shall inure to the benefit of each Owner 

thereof.” See Tex. Prop. Code Ann. § 204.004 (membership of association consists 

of owners of property within subdivision subject to property owners’ association); 

Houston Laureate Assocs., Ltd. v. Russell, 504 S.W.3d 550, 557 (Tex. App.—

Houston [14th Dist.] 2016, no pet.) (property owners had standing to enforce 

easement because agreement creating easement specifically conveyed easement for 

benefit of residential property owners and their land). Therefore, we conclude that 

the homeowners have standing to bring the underlying lawsuit and this appeal.

B. Temporary injunction

The trial court’s order states the trial court denied the temporary-injunction 

application because the homeowners had not shown a probable right to the relief 

sought. The trial court analyzed the statute and determined that the relief sought by 

the homeowners was prohibited by law. Therefore, we consider issues one and two

together because the trial court’s analysis of the statute determined its decision to 

deny the application for temporary injunction.

1. Standard of review

The purpose of a temporary injunction is to preserve the status quo of the 

litigation’s subject matter pending a trial on the merits. Walling v. Metcalfe, 863 

S.W.2d 56, 57 (Tex. 1993). To obtain a temporary injunction, the applicant must 

plead and prove three specific elements: (1) a cause of action against the 

defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, 

and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 

204 (Tex. 2002). An injury is irreparable if the injured party cannot be adequately 
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compensated in damages or if the damages cannot be measured by any certain 

pecuniary standard. Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 

398, 401 (Tex. App.—Dallas 1989, no writ).

Whether to grant or deny a temporary injunction is within the trial court’s 

sound discretion. Butnaru, 84 S.W.3d at 204. We review an order denying a 

temporary injunction for abuse of discretion. Id.

2. Easement and restrictive covenant at issue

The Declaration created both an easement and a restrictive covenant relating

to fencing on the back of each lot in the property owner’s association.

“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 Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002) (citing 

Restatement (Third) of Prop.: Servitudes § 1.2(1) (Am. Law Inst. 2000)). An 

easement does not convey title to property. Stephen F. Austin State Univ. v. Flynn, 

228 S.W.3d 653, 658 (Tex. 2007). Here, the Declaration reserved an easement, a

nonpossessory right to use, for all members of the Association on the back 20 feet 

of each lot for recreational purposes.

In contrast, a “restrictive covenant” as defined by statute is “any covenant, 

condition, or restriction contained in a dedicatory instrument, whether mandatory,

prohibitive, permissive, or administrative.” Tex. Prop. Code Ann. § 202.001(4).

5

The restrictive covenant in the Declaration preserved access to the recreational

easement by prohibiting any “structure, planting, or other material” from being 

5 The Declaration at issue is a dedicatory instrument as defined by statute. See Tex. Prop. 

Code Ann. § 202.001 (“‘Dedicatory instrument’ means each document governing the 

establishment, maintenance, or operation of a residential subdivision . . . . The term includes a 

declaration or similar instrument subjecting real property to . . . restrictive covenants, bylaws, or 

similar instruments governing the administration or operation of a property owners’ 

association”).
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placed in the recreational easement or interfering with “passage along such 

common or private road Easements or which would interfere with maintenance 

thereof.”6

The supreme court has affirmed the legislature’s intent that restrictive 

covenants not proscribed by statute should be “liberally construed to give effect to 

its purpose and intent.” Teal Trading & Dev., LP v. Champee Springs Ranches 

Prop. Owners Ass’n, 593 S.W.3d 324, 339 (Tex. 2020) (quoting Tex. Prop. Code

Ann. § 202.003(a)). However, the legislature has enacted statutory restrictions or 

limitations on the ability of property owner’s associations to create and enforce

certain restrictive covenants. See Teal Trading & Dev., 593 S.W.3d at 339; see 

generally Tex. Prop. Code Ann. §§ 201.001–216.014. Therefore, we consider now 

whether section 202.023 has proscribed the enforcement of the restrictive covenant 

that prevents the placement of fencing in the recreational easement.

3. The statute

Property Code section 202.023 states that “a property owners’ association 

may not adopt or enforce a restrictive covenant that prevents a property owner 

from building or installing security measures, including but not limited to a

security camera, motion detector, or perimeter fence.” Tex. Prop. Code Ann. 

§ 202.023(b).

7 The statute does not prohibit a property owners’ association from 

regulating the type of fencing that a property owner may install. Tex. Prop. Code 

6 While the reservation of the easement itself is not affected by section 202.023, access to 

the easement, through enforcement of the restrictive covenant that restricts the use of all lots 

within the Association, may be affected.

7 Although it does not bear on our statutory construction analysis, we note that section 

202.023 was enacted to address reports that some property owners’ associations were preventing 

homeowners from installing security measures such as fences, motion detectors, and security 

cameras. See Senate Comm. on Bus. & Industry, Bill Analysis, Tex. C.S.H.B. 3571, 87th Leg., 

R.S. (2021). The bill analysis states that the purpose of the legislation was to ensure that 

homeowners can adequately protect their homes. Id.
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Ann. § 202.023(c).

Construction of statutory language is a question of law we review using the

de novo standard. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 

(Tex. 2009). When construing a statute, the court’s primary objective is to give 

effect to legislative intent. Colorado Cnty. v. Staff, 510 S.W.3d 435, 444 (Tex. 

2017). “The plain meaning of the text is the best expression of legislative intent 

unless a different meaning is apparent from the context or the plain meaning leads 

to absurd or nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.

2011). When interpreting the legislature’s words, however, we must never “rewrite 

the statute under the guise of interpreting it,” and it is not appropriate to rely on

documents beyond the statutory text for assistance in determining legislative intent 

unless the statutory text is susceptible to more than one reasonable interpretation.

See In re Ford Motor Co., 442 S.W.3d 265, 284 (Tex. 2014); Tex. Mut. Ins. Co. v. 

Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012).

4. Application to the facts

The homeowners argue that enforcement of the reserved recreational

easement and section 202.023 are compatible. They assert that the Association can

enforce the easement in such a manner that perimeter fences are approved only if 

they do not encroach on the recreational easement. In opposition, the Association

argues the plain language of the statute prohibits the association from denying or 

limiting the ability of property owners to install perimeter fencing.

The question raised by the arguments of the parties is how the term

“perimeter fence” applies. The statute does not contain a definition for the term 

“perimeter fence” or “perimeter.” Therefore, we look to the ordinary or common

meaning. See Code Construction Act, Tex. Gov’t Code Ann. § 311.011 (words and

phrases construed according to common usage). “Perimeter” as applicable here is
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defined as “(1) the boundary of a closed-plane figure; (2) a line or strip bounding 

or protecting an area; and (3) outer limits.” Perimeter, Merriam-Webster.com, 

https://www.merriam-webster.com/dictionary/perimeter (last visited July 18,

2024). Therefore, the common usage of the term “perimeter fence” describes a

fence around the boundary or outer limits of a property. This statutory construction 

analysis supports the arguments made by the Association.

Other provisions in Property Code chapter 202 support this interpretation. In 

section 202.012, the legislature prohibits a property owners’ association from

restricting the display of certain flags; however, the statute specifically provides 

that a “reasonable dedicatory instrument provision” may be enforced to comply 

with “applicable zoning ordinances, easements, and setbacks of record[.]” Tex.

Prop. Code Ann. § 202.012. Although a property owners’ association may not 

prohibit the display of certain religious items, the legislature made an exception for 

the enforcement of restrictive covenants if the display of a religious item would 

violate any easement. Tex. Prop. Code Ann. § 202.018. Similarly, the statutes

addressing enforcement of restrictive covenants on swimming pools, stand-by 

generators, and solar devices contain significantly more exceptions and discussion 

of when and how property owners’ associations may enforce restrictive covenants 

with respect to those items. See Tex. Prop. Code Ann. §§ 202.007, .010, .019, .022.

In summary, the language of section 202.023 reflects a clear and unambiguous 

intent to prohibit property owners’ associations from restricting the ability of 

homeowners to fence the perimeter of their property.

8

Because we agree with the trial court that the homeowners did not establish 

a probable right to the relief sought given the application of section 202.023, we 

8 To the extent that the real argument raised by the homeowners is that the language of 

section 202.023 as enacted is too broad, that is an argument to make to the legislature, not the 

courts.
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conclude the trial court did not err in denying the homeowner’s application for a 

writ of temporary injunction.

We overrule issues one and two.

III. CONCLUSION

We affirm the trial court’s order denying the homeowners’ application for a 

writ of temporary injunction as challenged on appeal.

/s/ Charles A. Spain

Justice

Panel consists of Justices Wise, Bourliot, and Spain.