The Court Never Said Whether the Bees Could Stay

The Thirteenth Court of Appeals, which sits in Corpus Christi and Edinburg, handed down its answer on Oct. 22 in a case that began with a letter in a Conroe mailbox. Tyra Swanson, a retired Army veteran who had kept hives on her lot beside Spillway Park for about five years, wanted a court to declare that her bees did not violate the subdivision's deed restrictions. The justices declined to reach that question, affirmed the dismissal of her lawsuit, and left a $2,500 attorney's fee order against her in place.

What the opinion actually decides is narrower and, for anyone who fields stinging insect complaints, more useful.

The Lake Forest Falls deed restriction compliance committee wrote to Swanson about a "possible" violation of the covenant governing animals and pets. According to reporting by KHOU 11, the letter noted that her bee boxes sat near a pavilion where families gather and eat, suggested moving them to the other side of her house or off the property, asked for a response within ten days and warned that a fine could follow. It also raised a concern about chickens wandering toward the park. An attorney for the association told the station that bees near Spillway Park had stung association members and board members. It has not been established that Swanson's colonies were the bees responsible.

She sued before the association acted, seeking declarations that the hives complied and that the restriction had been equitably abandoned as applied to bees, plus an injunction and fees. A district court dismissed under Rule 91a and awarded the association its fees. The appeals court affirmed on ripeness, and the reasoning turned on Swanson's own pleading: her petition stated that the letter did not accuse her of a violation and merely requested that she move the hives. The court treated that as a judicial admission, which meant there was no live controversy for a declaratory judgment to resolve.

The court also declined the framing that bees are an agricultural commodity rather than animals, reasoning that the association's concern was nuisance and proximity to a pavilion, not taxonomy. The hives have not moved, and Spillway Park has been closed during the dispute.

The instructive part is the sequence Texas law imposes before an association can fine anyone. Under Section 209.006 of the Property Code, an association must send written notice by certified mail before it charges an owner, suspends common area access, or sues. The notice has to describe the violation, state any amount due, tell the owner they may request a hearing on or before the 30th day after mailing, and — where the violation is curable and does not threaten public health or safety — give a reasonable period to fix it. Section 209.007 supplies the hearing.

That public health and safety carve-out is where insect complaints get interesting. An association that frames a hive next to a pavilion as a safety matter is arguing, in effect, that the cure period does not apply. Proving the claim is a separate problem, which is why the association's own account rests on stings by unidentified bees.

The other statute in play is the pest control code itself. Section 1951.056 of the Occupations Code exempts a person acting as a beekeeper who is registered with the chief apiary inspector, uses no pesticides or electrical devices beyond a conventional smoker, and collects, removes or destroys honey bees. Such a person, the section says, is not engaged in the business of structural pest control. Anyone else removing a colony for hire in Texas is working inside the licensed system the Department of Agriculture administers.

The state's guidance for backyard hives is voluntary and specific. The Texas Apiary Inspection Service's best management practices recommend no more than three colonies on a quarter acre or less, six on a quarter to a half acre, ten on a half acre to an acre, fifteen up to two and a half acres, twenty-five up to five acres, fifty up to ten acres, and a hundred above that, with double those numbers allowed for no more than 60 days as swarm control. Where hives sit within 200 feet of a developed portion of a property, it calls for a solid fence, wall or dense vegetative barrier that starts at the ground, stands at least six feet tall and forces bees to rise over people rather than cross at head height. It asks for a water source near the apiary so bees stop visiting neighbors' pools, and it tells beekeepers to talk to the people next door before tempers do the talking.

None of it binds a subdivision. Deed restrictions and enforcement do that.

The document also speaks directly to the pest control trade: notify nearby applicators before a treatment, keep apiary sites away from drift, and report suspected pesticide kills to the Department of Agriculture's pesticide program at 1-800-TELL-TDA. American foulbrood suspicions go to the apiary inspection service at (979) 845-9713.

Both sides now know what the next step costs. To make a fine stand, the association has to make a formal finding and walk through notice, cure and hearing. If the bees stay, the neighbors keep a closed park. The court resolved none of it, and was never going to.