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Municipal Regulation of Group Homes in Texas

Municipal Regulation of Group Homes in Texas

What is the current state of the law on municipal regulation of group homes in Texas? More specifically, which ordinances regulating group homes in a residential area have been upheld as enforceable? And, perhaps as important a question: which ones have not been upheld or called into question?

The short answer is: If the “group home” qualifies as a “community home” under Chapter 123 of the Texas Human Resources Code, the use of the home cannot be restricted by the City or by private deed restriction. If the residence does not qualify as a community home, the City may be able to restrict or prohibit the use of the residence as a “group home,” but would need to craft its ordinance carefully to avoid violating any state or federal laws.

The long answer calls for a fuller examination of state and federal law. There is no single state or federal definition of “group home,” but Texas law contemplates at least 24 different types of dwellings that may house several unrelated persons. What many people refer to as “group homes” are legally defined as Community Homes for Persons with Disabilities, authorized by Texas Human Resources Code Chapter 123.

A residential property that qualifies as a Community Home under Chapter 123 is protected by federal and state law against virtually any restriction against its use, including city ordinances and private deed restrictions.

Federal Law — Discrimination

The Fair Housing Amendments of 1988 (“FHAA”), 42 USCA Section 3604, provides that no city or county may enact or maintain an ordinance, development regulation, zoning regulation, or official control, policy, or administrative practice that treats a residential structure occupied by persons with handicaps differently than a similar residential structure occupied by a family or other unrelated individuals.

The FHAA defines “handicap” as

• a physical or mental impairment which substantially limits one or more of such person’s major life activities; or
• a record of having such impairment; or
• being regarded as having such impairment,
but such term does not include current, illegal use of or addiction to a controlled substance.

The FHAA intended to “prohibit the application of special requirements through land use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community.” H.R. Rep. No. 711, 100th Cong. 2d Sess., reprinted in U.S.C. C.A.N. 2173, 2185 (1988).

Under the FHAA, governments must provide a “reasonable accommodation” for the handicapped to afford them equal housing opportunities, and discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. Section 3604(f)(3)(B).

  • is the plaintiff “handicapped?”
    • if no, no FHAA protection
    • if yes, is the government action discriminatory?
      • was there a refusal to make “reasonable accommodations?”
      • did it serve a legitimate government interest?
      • was it rationally related to goals of health, safety, and community welfare?

State Law — Use By Right

Texas Human Resources Code Section 123.003 prohibits “Zoning And Restriction Discrimination Against Community Homes,” providing that a residence that qualifies as a Community Home is a “use by right that is authorized in any district zoned as residential.” Contrary city ordinances are preempted; also, any “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.”

In addition, Texas Property Code Section 202.003(b) defines a “family home” as a residence that qualifies under the Community Homes for Disabled Persons Location Act and provides that a “dedicatory instrument or restrictive covenant may not be construed to prevent the use of property as a family home.” Note that there is no date restriction in this statutory provision.

What is a Community Home?

  • 123.002 — A Community Home is a home for a “person with a disability,” or more specifically:
    an orthopedic, visual, speech, or hearing impairment; or

    • Alzheimer’s disease; or
    • pre-senile dementia; or
    • cerebral palsy; or
    • epilepsy; or
    • muscular dystrophy; or
    • multiple sclerosis; or
    • cancer; or
    • heart disease; or
    • diabetes; or
    • an intellectual disability; or
    • autism; or
    • mental illness.
  • 123.004 — to qualify as a Community Home under this chapter, the home must be:
    • a community-based residential home operated by:
      • the Texas Department of Aging and Disability Services; or
      • a community center that provides services to persons with disabilities; or
      • a non-profit corporation; or
      • an entity certified by Texas Department of Aging and Disability Services as a provider under the ICF-IID medical assistance program;
      • or an “assisted living facility” licensed under Health and Safety Code Chapter 247.002 (with an exterior structure compatible with surrounding residential dwellings), which:
        • furnishes food and shelter to four or more unrelated persons
        • provides personal care services or administration of medication by licensed or authorized person
        • may provide assistance with or supervision of administration of medication
        • may provide skilled nursing services for limited purposes
  • 123.005 — Community Home must provide: food, shelter, personal guidance, care, habilitation, and supervision to persons with disabilities who reside in the home
  • 123.006 — Community Home must not house more than six persons with disabilities and two supervisors at the same time, regardless of relationship
  • 123.007 — Community Home must “meet all applicable licensing requirements”
  • 123.008 — A Community Home may not be established within one-half mile of an existing community home.
  • 123.009 — The number of vehicles kept at the Community Home may not exceed the number of bedrooms in the home.

What Can The City Do?

  • A City ordinance may define a group home (or community home, or assisted living facility, or residential treatment facility) in one of several different ways. Broad categories could include:
    • how many unrelated people live there
    • who lives there (persons with disabilities, foster children, seniors, etc.)
    • who operates the facility
    • what services are provided
    • under which statutory provision(s) it qualifies (or does not qualify)
  • However, the City Council and the City Attorney must determine whether group home is:
    • allowed by operation of law
    • allowed under the terms of the ordinance
    • allowed if it meets certain other conditions
    • not allowed under any theory

The City can do very little to regulate or restrict a residence that qualifies as a Community Home; however, the City could certainly adopt an ordinance restricting, or prohibiting, a residence that does not qualify as a Community Home. For example, if the residence housed more than six residents and two supervisors at the same time, it would violate the requirements for a Community Home. See City of Friendswood v. Registered Nurse Care Home, 965 S.W.2d 705 (Tex. App. — Houston [1st Dist.] 1998, no pet.).

Of course, there are many other types of residential dwellings that may qualify as group homes:

  • Human Resources Code Section 42.002 includes distinct definitions for “child-care facility,” “general residential operation,” “foster group home,” “foster home,” “day-care center,” “group day-care home,” “family home” (not the same as the definition from the Property Code), “agency foster group home,” “agency foster home,” “residential child-care facility,” “before-school or after-school program,” and “school-age program.” All of those facilities are required to be licensed by the State, which raises preemption issues that are beyond the scope of this memo.
  • The Texas Health and Safety Code licenses and regulates, among others, “continuing care facilities,” “assisted living facilities” (see above), “special care facilities,” and “boarding home facilities.”
    • Continuing Care Facilities
    • Assisted Living Facilities (see above)
    • Special Care Facilities — includes
      • “special care residential facility”
      • “residential AIDS hospice”
    • Boarding Home Facilities — Health and Safety Code Section 260.001
      Three or more persons with disabilities or elderly persons who are unrelated to owner by blood or marriage
      260.004-005 — A county or municipality may require a person to obtain a permit to operate a boarding home facility within city’s jurisdiction, establish procedures, collect fees, impose fines
  • The Texas Government Code, Chapters 508 and 509, provides for “community residential facilities,” “halfway houses,” and “community corrections facilities,” which are beyond the scope of this memo
  • [ Etc. ]

The City Council and City Attorney would need to work together to craft an ordinance that clearly defined and narrowly tailored the restrictions and did not violate any federal or state statutes.

Additional References:

City of Arlington definitions of Group Living Facilities” from 2008

Meehl v. Wise, 285 S.W.3d 561 (Tex. App. — Houston [14th Dist.] 2009, no pet.)

2011 TML paper

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

Drew Shirley is a Houston attorney with experience in tort and business litigation and business and real estate transactions. Shirley graduated cum laude from Duke University, then received two advanced degrees – a master’s in journalism and a law degree – from the University of Texas at Austin. He joined the Randle Law Office in 2015.

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