By: Taylor of Galveston (Senate Sponsor - Duncan) H.B. No. 2817
(In the Senate - Received from the House May 11, 2011;
May 11, 2011, read first time and referred to Committee on State
Affairs; May 19, 2011, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
May 19, 2011, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 2817 By: Duncan
A BILL TO BE ENTITLED
AN ACT
relating to certain election practices and procedures.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 4.004(a), Election Code, is amended to
read as follows:
(a) The notice of a general or special election must state:
(1) the nature and date of the election;
(2) except as provided by Subsection (c), the location
of each polling place[, including each early voting polling place];
(3) the hours that the polls will be open; and
(4) any other information required by other law.
SECTION 2. Section 18.064, Election Code, is amended to
read as follows:
Sec. 18.064. SANCTION FOR NONCOMPLIANCE. If a registrar
fails to substantially comply with Section 15.083, 16.032,
[18.042,] or 18.061 or with rules adopted by the secretary of state
implementing the statewide computerized voter registration list,
the registrar is not entitled to receive state funds for financing
voter registration in the county.
SECTION 3. Section 18.065(a), Election Code, is amended to
read as follows:
(a) The secretary of state shall monitor each registrar for
substantial compliance with Sections 15.083, 16.032, [18.042,] and
18.061 and with rules implementing the statewide computerized voter
registration list.
SECTION 4. Subchapter C, Chapter 18, Election Code, is
amended by adding Section 18.068 to read as follows:
Sec. 18.068. VOTING HISTORY. Not later than the 30th day
after the date of the primary, runoff primary, or general election
or any special election ordered by the governor, the registrar
shall electronically submit to the secretary of state the record of
each voter participating in the election.
SECTION 5. Section 19.002(d), Election Code, is amended to
read as follows:
(d) The comptroller may not issue a warrant if on June 1 of
the year in which the warrant is to be issued the most recent notice
received by the comptroller from the secretary of state under
Section 18.065 indicates that the registrar is not in substantial
compliance with Section 15.083, 16.032, [18.042,] or 18.065 or with
rules implementing the registration service program.
SECTION 6. Section 31.006, Election Code, is amended to
read as follows:
Sec. 31.006. REFERRAL OF COMPLAINT TO ATTORNEY GENERAL.
(a) If, after receiving a complaint alleging criminal conduct in
connection with an election, the secretary of state determines that
there is reasonable cause to suspect that the alleged criminal
conduct occurred, the secretary shall promptly refer the complaint
to the attorney general. The secretary shall deliver to the
attorney general all pertinent documents in the secretary's
possession.
(b) The documents submitted to the attorney general under
Subsection (a) are not considered public information until the
attorney general has completed the investigation or has made a
determination that the complaint referred does not warrant an
investigation.
SECTION 7. Section 31.092(b), Election Code, is amended to
read as follows:
(b) The county election officer may contract with the county
executive committee of a political party holding a primary election
in the county to perform election services, as provided by this
subchapter, in the party's general primary election or runoff
primary election, or both. [To be binding, a contract under this
subsection must be approved in writing by the secretary of state,
and the execution of a contract is not completed until written
approval is obtained.]
SECTION 8. Section 31.093(a), Election Code, is amended to
read as follows:
(a) If requested to do so by a political subdivision or
political party, the county elections administrator shall enter
into a contract to furnish the election services requested, in
accordance with a cost schedule agreed on by the contracting
parties. [If the contracting parties are unable to reach an
agreement, on referral by either party, the secretary of state
shall either prescribe terms that the administrator must accept or
instruct the administrator to decline to enter into a contract with
the requesting party.]
SECTION 9. Section 32.002(c), Election Code, is amended to
read as follows:
(c) The presiding judge and alternate presiding judge must
be affiliated or aligned with different political parties, subject
to this subsection. Before July of each year in a county to which
Subsection (a)(1) applies or before August of each year in a county
to which Subsection (a)(2) applies, the county chair of a political
party whose candidate for governor received the highest or second
highest number of votes in the county in the most recent
gubernatorial general election shall submit in writing to the
commissioners court a list of names of persons in order of
preference for each precinct who are eligible for appointment as an
election judge. The county chair may supplement the list of names
of persons until the 20th day before a general election or the 15th
day before a special election in case an appointed election judge
becomes unable to serve. The commissioners court shall appoint the
first person meeting the applicable eligibility requirements from
the list submitted in compliance with this subsection by the party
with the highest number of votes in the precinct as the presiding
judge and the first person meeting the applicable eligibility
requirements from the list submitted in compliance with this
subsection by the party with the second highest number of votes in
the precinct as the alternate presiding judge. If the candidates
for governor of two political parties received the same number of
votes in the precinct, the first person meeting the applicable
eligibility requirements from the list submitted by the party whose
candidate for governor received the highest number of votes in the
county shall be appointed as the presiding judge and the first
person meeting the applicable eligibility requirements from the
list submitted by the party whose candidate for governor received
the second highest number of votes in the county shall be appointed
as the alternate presiding judge. The commissioners court may
reject the list if the persons whose names are submitted on the list
are determined not to meet the applicable eligibility requirements.
SECTION 10. Section 33.006(b), Election Code, is amended to
read as follows:
(b) A certificate of appointment must:
(1) be in writing and signed by the appointing
authority or, for an appointment for a write-in candidate under
Section 33.004, by each of the voters making the appointment;
(2) indicate the capacity in which the appointing
authority is acting;
(3) state the name, residence address, and voter
registration number of the appointee and be signed by the
appointee;
(4) identify the election and the precinct polling
place or other location at which the appointee is to serve;
(5) in an election on a measure, identify the measure
if more than one is to be voted on and state which side of the
measure the appointee represents; and
(6) contain an affidavit executed by the appointee
stating that the appointee will not have possession of a device
capable [any mechanical or electronic means] of recording images or
sound or that the appointee will disable or deactivate the device
while serving as a watcher.
SECTION 11. Section 33.051(c), Election Code, is amended to
read as follows:
(c) A watcher may not be accepted for service if the watcher
has possession of a device capable [any mechanical or electronic
means] of recording images or sound unless the watcher agrees to
disable or deactivate the device. The presiding judge may inquire
whether a watcher has possession of any prohibited recording device
before accepting the watcher for service.
SECTION 12. Section 66.058, Election Code, is amended by
amending Subsection (a) and adding Subsection (h) to read as
follows:
(a) Except as otherwise provided by this code, the precinct
election records shall be preserved by the authority to whom they
are distributed:
(1) in an election involving a federal office, for at
least 22 months after election day in accordance with federal law;
or
(2) in an election not involving a federal office, for
at least six months after election day.
(h) For the preservation of precinct election records in an
election involving a federal office, the secretary of state shall
instruct the affected authorities on the actions necessary to
comply with federal law and otherwise implement this section.
SECTION 13. Section 84.007(b), Election Code, is amended to
read as follows:
(b) An application must be submitted to the early voting
clerk by:
(1) mail;
(2) common or contract carrier; or
(3) a means of sending an electronic copy prescribed
by the secretary of state [telephonic facsimile machine, if the
applicant is absent from the county and if a machine is available in
the clerk's office].
SECTION 14. Section 85.004, Election Code, is amended to
read as follows:
Sec. 85.004. PUBLIC NOTICE OF MAIN POLLING PLACE LOCATION.
The election order and the election notice must state the location
of the main [each] early voting polling place.
SECTION 15. Sections 85.032(b), (d), and (f), Election
Code, are amended to read as follows:
(b) The ballot box in which voters deposit their marked
early voting ballots must have two locks, each with a different key,
and must be designed and constructed so that the box can be sealed
to detect any unauthorized opening of the box and that the ballot
slot can be sealed to prevent any unauthorized deposit in the box.
The seals for the boxes must be serially numbered for each election.
The procedures prescribed by Sections 127.064, 127.065, 127.066,
and 127.068 governing the use of sealed ballot boxes in electronic
voting system elections apply to the use of sealed ballot boxes
under this title to the extent those procedures can be made
applicable[, with references to the central counting station being
applied to the early voting ballot board]. The secretary of state
shall prescribe any procedures necessary to implement the use of
sealed ballot boxes in early voting.
(d) Each custodian shall retain possession of the key
entrusted to the custodian until it is delivered to the presiding
judge of the central counting station [early voting ballot board
under Subchapter B, Chapter 87].
(f) The secretary of state shall prescribe procedures
providing for the security of the voted early voting ballots from
the last day of voting by personal appearance at a polling place
until the day the ballots are counted. [The procedures must include
security measures covering the transfer of the ballots between the
early voting clerk and the early voting ballot board.]
SECTION 16. Section 87.021, Election Code, is amended to
read as follows:
Sec. 87.021. BALLOTS AND OTHER MATERIALS DELIVERED TO
BOARD. The early voting clerk shall deliver to the early voting
ballot board:
(1) in an election in which regular paper ballots are
used for early voting by personal appearance, each ballot box, in
accordance with Section 85.032(b), containing the early voting
ballots voted by personal appearance and the clerk's key to each
box;
(2) the jacket envelopes containing the early voting
ballots voted by mail, regardless of the ballot type or voting
system used;
(3) the poll lists prepared in connection with early
voting by personal appearance;
(4) the list of registered voters used in conducting
early voting; and
(5) a ballot transmittal form that includes a
statement of the number of early voting ballots voted by mail,
regardless of the ballot type or voting system used, that are
delivered to the early voting ballot board, and in an election in
which regular paper ballots are used for early voting by personal
appearance, the number of names appearing on the poll lists
prepared in connection with early voting by personal appearance.
SECTION 17. Subchapter B, Chapter 87, Election Code, is
amended by adding Section 87.0211 to read as follows:
Sec. 87.0211. ELECTRONIC DELIVERY OF MATERIALS RECORDED
ELECTRONICALLY. If ballot materials and ballot applications are
recorded electronically as provided by Section 87.126, the early
voting clerk may deliver those materials to the early voting ballot
board through electronic means.
SECTION 18. Section 87.0221(a), Election Code, is amended
to read as follows:
(a) In an election in which regular paper ballots are used
for early voting by personal appearance or by mail, the materials
may be delivered to the board between the end of the period for
early voting by personal appearance and the closing of the polls on
election day, or as soon after closing as practicable, at the time
or times specified by the presiding judge of the board.
SECTION 19. Section 87.023(a), Election Code, is amended to
read as follows:
(a) In an election in which early voting ballots are to be
counted by automatic tabulating equipment at a central counting
station, the ballots voted by mail to be automatically counted may
be delivered to the board between the end of the period for early
voting by personal appearance and the closing of the polls on
election day, or as soon after closing as practicable, at intervals
specified by the presiding judge of the board.
SECTION 20. Section 87.027, Election Code, is amended by
adding Subsection (m) to read as follows:
(m) If ballot materials or ballot applications are recorded
electronically as provided by Section 87.126, the signature
verification committee may use an electronic copy of a carrier
envelope certificate or the voter's ballot application in making
the comparison under Subsection (i).
SECTION 21. Subchapter G, Chapter 87, Election Code, is
amended by adding Section 87.126 to read as follows:
Sec. 87.126. ELECTRONIC RECORDING OF BALLOT MATERIALS AND
APPLICATIONS. (a) The early voting clerk may electronically
record applications for a ballot to be voted by mail, jacket
envelopes, carrier envelopes, and ballots.
(b) The secretary of state may adopt rules providing
requirements for the electronic image quality and storage of the
electronic images of the documents described by Subsection (a).
SECTION 22. Section 101.013, Election Code, is amended to
read as follows:
Sec. 101.013. DESIGNATION OF SECRETARY OF STATE. (a) The
secretary of state is designated as the state office to provide
information regarding voter registration procedures and absentee
ballot procedures, including procedures related to the federal
write-in absentee ballot, to be used by persons eligible to vote
under the federal Uniformed and Overseas Citizens Absentee Voting
Act (42 U.S.C. Section 1973ff et seq.), as amended.
(b) The secretary of state is designated as the state
coordinator between military and overseas voters and county
election officials. A county election official shall:
(1) cooperate with the secretary of state to ensure
that military and overseas voters timely receive accurate balloting
materials that a voter is able to cast in time for the election; and
(2) otherwise comply with the federal Military and
Overseas Voter Empowerment Act (Pub. L. No. 111-84, Div. A, Title V,
Subt. H).
(c) The secretary of state may adopt rules as necessary to
implement this section.
SECTION 23. Section 112.002(a), Election Code, is amended
to read as follows:
(a) After changing residence to another county, a person is
eligible to vote a limited ballot by personal appearance during the
early voting period or by mail if:
(1) the person would have been eligible to vote in the
county of former residence on election day if still residing in that
county;
(2) the person is registered to vote in the county of
former residence at the time the person:
(A) offers to vote in the county of new
residence; or
(B) submitted a voter registration application
in the county of new residence; and
(3) a voter registration for the person in the county
of new residence is not effective on or before election day.
SECTION 24. Section 127.007, Election Code, is amended to
read as follows:
Sec. 127.007. PLAN FOR COUNTING STATION OPERATION. (a) The
manager shall establish and implement a written plan for the
orderly operation of the central counting station.
(b) The plan required under this section must address the
process for comparing the number of voters who signed the
combination form with the number of votes cast for the entire
election.
SECTION 25. Section 127.201, Election Code, is amended by
adding Subsection (g) to read as follows:
(g) This section does not apply to the tabulation of
electronic voting system results for a voting system that uses
direct recording electronic voting machines.
SECTION 26. Section 129.023(c), Election Code, is amended
to read as follows:
(c) The general custodian of election records shall adopt
procedures for testing that:
(1) direct the testing board to cast votes;
(2) verify that each contest position, as well as each
precinct and ballot style, on the ballot can be voted and is
accurately counted [for each precinct and ballot style];
(3) include overvotes and undervotes for each race, if
applicable to the system being tested;
(4) include straight-party votes and crossover votes;
(5) include write-in votes, when applicable to the
election;
(6) include provisional votes, if applicable to the
system being tested;
(7) calculate the expected results from the test
ballots;
(8) ensure that each voting machine has any public
counter reset to zero and presented to the testing board for
verification before testing;
(9) require that, for each feature of the system that
allows disabled voters to cast a ballot, at least one vote be cast
and verified by a two-person testing board team using that feature;
and
(10) require that, when all votes are cast, the
general custodian of election records and the testing board observe
the tabulation of all ballots and compare the actual results to the
expected results.
SECTION 27. Section 141.040, Election Code, is amended to
read as follows:
Sec. 141.040. NOTICE OF DEADLINES. (a) The authority with
whom [Not later than the 30th day before the first day on which a
candidate may file] an application for a place on the ballot under
this subchapter[, the authority with whom the application] must be
filed shall post notice of the dates of the filing period in a
public place in a building in which the authority has an office not
later than the 30th day before:
(1) the first day on which a candidate may file the
application; or
(2) the last day on which a candidate may file the
application, if this code does not designate a first day on which
the candidate may file the application.
(b) This section does not apply to an office filled at the
general election for state and county officers.
SECTION 28. Section 145.001, Election Code, is amended by
amending Subsection (b) and adding Subsection (d-1) to read as
follows:
(b) A [To be effective, a] withdrawal request must:
(1) be in writing and be signed and acknowledged by the
candidate; and
(2) be timely filed with the appropriate authority or
an agent of an authority only as expressly provided by this code.
(d-1) A withdrawal that is not filed in compliance with
Subsection (b) has no legal effect and is not considered filed.
SECTION 29. Section 145.005, Election Code, is amended to
read as follows:
Sec. 145.005. EFFECT OF VOTES CAST FOR DECEASED, WITHDRAWN,
OR INELIGIBLE CANDIDATE. (a) If the name of a deceased, withdrawn,
or ineligible candidate appears on the ballot under this chapter,
the votes cast for the candidate shall be counted and entered on the
official election returns in the same manner as for the other
candidates.
(b) If the deceased, withdrawn, or ineligible candidate
receives the vote required for election, the resulting vacancy
shall be filled in the regular manner.
(c) If the deceased, withdrawn, or ineligible candidate and
another candidate tie for the most votes in an election in which a
plurality vote is sufficient for election, the other candidate is
considered to be elected. If more than one other candidate is tied
with the deceased, withdrawn, or ineligible candidate, the winner
of the election shall be determined by resolving the tie between the
other candidates in the regular manner for resolving a tie vote in
the election.
(d) In a race in which a runoff is required, if the deceased,
withdrawn, or ineligible candidate received the vote that would
entitle the candidate to a place on the runoff election ballot or
tied for that number of votes, the candidates in the runoff shall be
determined in the regular manner but without regard to the votes
received by the deceased, withdrawn, or ineligible candidate.
SECTION 30. Sections 145.092(a) and (d), Election Code, are
amended to read as follows:
(a) Except as otherwise provided by this section, a
candidate may not withdraw from an election after 5 p.m. of the
third day after the deadline for filing the candidate's application
for a place on the ballot [second day before the beginning of early
voting by personal appearance].
(d) A candidate in a runoff election [following a main
election subject to Subsection (b)] may not withdraw from the
election after 5 p.m. of the third day after the date of the main
election.
SECTION 31. Section 145.094(a), Election Code, is amended
to read as follows:
(a) The name of a candidate shall be omitted from the ballot
if the candidate:
(1) dies before the second day before the date of the
deadline for filing the candidate's application for a place on the
ballot;
(2) withdraws or is declared ineligible within the
time prescribed by Section 145.092(a) [before 5 p.m. of the second
day before the beginning of early voting by personal appearance],
in an election subject to that section [Section 145.092(a)];
(3) withdraws or is declared ineligible within the
time prescribed by Section 145.092(b) [before 5 p.m. of the 53rd day
before election day], in an election subject to that section
[Section 145.092(b)]; or
(4) withdraws or is declared ineligible within the
time prescribed by Section 145.092(f) [before 5 p.m. of the 67th day
before election day], in an election subject to that section
[Section 145.092(f)].
SECTION 32. Section 172.052(a), Election Code, is amended
to read as follows:
(a) A candidate for nomination may not withdraw from the
general primary election after the first day after the deadline for
filing the candidate's application for a place on the general
primary election ballot [62nd day before general primary election
day].
SECTION 33. Section 172.057, Election Code, is amended to
read as follows:
Sec. 172.057. WITHDRAWN, DECEASED, OR INELIGIBLE
CANDIDATE'S NAME OMITTED FROM GENERAL PRIMARY BALLOT. A
candidate's name shall be omitted from the general primary election
ballot if the candidate withdraws, dies, or is declared ineligible
within the time prescribed by Section 172.052(a) [on or before the
62nd day before general primary election day].
SECTION 34. Sections 174.022(a), (b), and (c), Election
Code, are amended to read as follows:
(a) The precinct conventions may [shall] be held in the
regular county election precincts on:
(1) general primary election day; and
(2) a date determined by the county executive
committee that occurs not later than the fifth day after the date of
the general primary election [in the regular county election
precincts].
(b) Consistent with Subsection (c), not [Not] later than the
date of the regular drawing for position on the general primary
election ballot, the county executive committee shall set the hour
and place for convening each precinct convention for the precincts
served by the committee. If the county executive committee fails to
do so, the county chair shall set, consistent with Subsection (c),
the hour and place.
(c) If precinct conventions are held on general primary
election day, the [The] hour set for convening the conventions may
not be earlier than 7 p.m. or later than 9 p.m., but a
[Notwithstanding the hour set for convening, the] convention may
not convene until the last voter has voted at the precinct polling
place. If precinct conventions are held on a day other than general
primary election day, the county executive committee shall set the
hour for convening or a time frame in which the conventions must
convene.
SECTION 35. Section 174.023, Election Code, is amended to
read as follows:
Sec. 174.023. NOTICE OF DATE, HOUR, AND PLACE. (a) The
county chair shall post a notice of the date, hour, and place for
convening each precinct convention on the bulletin board used for
posting notice of meetings of the commissioners court. The notice
must remain posted continuously for the 10 days immediately
preceding the date of the convention.
(b) Not later than the 10th day before the date of the
precinct conventions, the county chair shall deliver to the county
clerk written notice of the date, hour, and place for convening each
precinct convention.
(c) If the county chair fails to post or deliver notice in
accordance with this section, another member of the county
executive committee may post or deliver the notice.
SECTION 36. Section 213.013(i), Election Code, is amended
to read as follows:
(i) No device capable [mechanical or electronic means] of
recording images or sound is [are] allowed inside the room in which
the recount is conducted, or in any hallway or corridor in the
building in which the recount is conducted within 30 feet of the
entrance to the room, while the recount is in progress unless the
person entitled to be present at the recount agrees to disable or
deactivate the device. However, on request of a person entitled to
appoint watchers to serve at the recount, the recount committee
chair shall permit the person to photocopy under the chair's
supervision any ballot, including any supporting materials,
challenged by the person or person's watcher. The person must pay a
reasonable charge for making the copies and, if no photocopying
equipment is available, may supply that equipment at the person's
expense. The person shall provide a copy on request to another
person entitled to appoint watchers to serve at the recount.
SECTION 37. Section 216.002, Election Code, is amended to
read as follows:
Sec. 216.002. CONDUCT OF AUTOMATIC RECOUNT GENERALLY.
Except as otherwise provided by this chapter, this title, including
the notice requirement of Section 213.009, applies to a recount
conducted under this chapter with appropriate modifications as
prescribed by the secretary of state.
SECTION 38. Section 232.008(c), Election Code, is amended
to read as follows:
(c) A contestant must file the petition not later than the
10th day after the date the official result is determined in a
contest of:
(1) a primary or runoff primary election; or
(2) a general or special election for which a runoff is
necessary according to the official result or will be necessary if
the contestant prevails.
SECTION 39. Section 253.167, Election Code, is amended to
read as follows:
Sec. 253.167. CERTIFICATION OF POPULATION; NOTICE OF
CONTRIBUTION AND EXPENDITURE LIMITS. (a) For purposes of this
subchapter only, not later than June 1 of each odd-numbered year,
the commission [secretary of state] shall:
(1) make [deliver to the commission] a written
certification of the population of each judicial district for which
a candidate for judge or justice must file a campaign treasurer
appointment with the commission; and
(2) deliver to the county clerk of each county a
written certification of the county's population, if the county:
(A) comprises an entire judicial district under
Chapter 26, Government Code; or
(B) has a statutory county court or statutory
probate court, other than a multicounty statutory county court
created under Subchapter D, Chapter 25, Government Code.
(b) Following [On receipt of the] certification of
population under Subsection (a), the commission or county clerk, as
appropriate, shall make available to each candidate for an office
covered by this subchapter written notice of the contribution and
expenditure limits applicable to the office the candidate seeks.
SECTION 40. Section 501.001, Election Code, is amended by
adding Subdivision (4) to read as follows:
(4) "Political subdivision" includes a justice
precinct.
SECTION 41. Section 501.023(a), Election Code, is amended
to read as follows:
(a) If 10 or more qualified voters of any county, justice
precinct, or municipality file a written application and provide
proof of publication of notice in a newspaper of general
circulation in that political subdivision, the county clerk of the
county shall issue to the applicants a petition to be circulated
among the qualified voters of the political subdivision for the
signatures of those qualified voters who desire that a local option
election be called for the purpose of determining whether the sale
of alcoholic beverages of one or more of the various types and
alcoholic contents shall be prohibited or legalized in the
political subdivision. The notice must include:
(1) the individual or entity that is applying for the
petition to gather signatures for a local option liquor election;
(2) the type of local option liquor election;
(3) the name of the political subdivision in which the
petition will be circulated; and
(4) the name and title of the person with whom the
application will be filed.
SECTION 42. Section 501.108(a), Election Code, is amended
to read as follows:
(a) If a county is not required to pay the initial expense,
regardless of any authority to receive reimbursement, of a local
option election under Section 501.107, the county clerk shall
require the applicants for a petition for a local option election to
make a deposit before the issuance of the petition.
SECTION 43. Sections 18.041, 18.042, and 145.092(c),
Election Code, are repealed.
SECTION 44. This Act takes effect September 1, 2011.
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