85S11954 ADM-F
By: Schofield, White, Laubenberg, et al. H.B. No. 47
Substitute the following for H.B. No. 47:
By: Swanson C.S.H.B. No. 47
A BILL TO BE ENTITLED
AN ACT
relating to the prevention of fraud in the conduct of early voting
by mail; creating criminal offenses; increasing criminal
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 66.058, Election Code, is amended by
amending Subsection (a) and adding Subsection (i) 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].
(i) Notwithstanding Section 66.002, for purposes of this
section, "precinct election records" includes all ballot envelopes
and carrier envelopes returned by a voter voting under Chapter 86 or
Chapter 107.
SECTION 2. Section 84.003(b), Election Code, is amended to
read as follows:
(b) A person who acts as a witness for an applicant for an
early voting ballot application commits an offense if the person
knowingly fails to comply with Section 1.011. A person who [in the
presence of the applicant] otherwise assists an applicant in
completing an early voting ballot application commits an offense if
the person knowingly fails to comply with Section 1.011(d) in the
same manner as a witness.
SECTION 3. Section 84.004(e), Election Code, is amended to
read as follows:
(e) An offense under this section is a Class A [B]
misdemeanor.
SECTION 4. Section 84.0041, Election Code, is amended to
read as follows:
Sec. 84.0041. FRAUDULENT USE OF [PROVIDING FALSE
INFORMATION ON] APPLICATION FOR BALLOT BY MAIL. (a) A person
commits an offense if the person:
(1) knowingly provides false information on an
application for [an early voting] ballot by mail;
(2) intentionally causes false information to be
provided on an application for ballot by mail;
(3) knowingly submits an application for ballot by
mail without the knowledge and authorization of the voter; or
(4) knowingly alters or provides information on a
voter's application for ballot by mail without the voter's request.
(b) Except as provided by Subsection (c), an [An] offense
under this section is a state jail felony [unless the person is the
applicant, is related to the applicant within the second degree by
affinity or the third degree by consanguinity, as determined under
Subchapter B, Chapter 573, Government Code, or is registered to
vote at the same address as the applicant, in which event the
offense is a Class A misdemeanor].
(c) An offense under this section is increased to the next
higher category of offense if it is shown on the trial of an offense
under this section that:
(1) the defendant was previously convicted of an
offense under this code;
(2) the offense involved a voter 65 years of age or
older; or
(3) the defendant committed another offense under this
section in the same election.
SECTION 5. Section 86.004(a), Election Code, as effective
September 1, 2017, is amended to read as follows:
(a) Except as provided by Subsection (b) or (c), the
balloting materials for voting by mail shall be mailed to a voter
entitled to vote by mail not later than the seventh calendar day
after the later of the date the clerk accepts the voter's
application for a ballot to be voted by mail or the date the ballots
become available for mailing, except that if that mailing date is
earlier than the 45th day before election day, the balloting
materials shall be mailed not later than the 30th [38th] day before
election day.
SECTION 6. The heading to Section 86.0051, Election Code,
is amended to read as follows:
Sec. 86.0051. UNLAWFUL MAIL BALLOT ACTIVITY [CARRIER
ENVELOPE ACTION] BY PERSON OTHER THAN VOTER[; OFFENSES].
SECTION 7. Sections 86.0051(b), (d), and (e), Election
Code, are amended to read as follows:
(b) A person other than the voter who deposits the carrier
envelope in the mail or with a common or contract carrier, or who
obtains the carrier envelope for that purpose, must provide the
information required to be provided on the certificate [person's
signature, printed name, and residence address] on the reverse side
of the envelope.
(d) An offense under this section is a Class A [B]
misdemeanor, unless the person is convicted of an offense under
Section 64.036 for providing unlawful assistance to the same voter
in connection with the same ballot, in which event the offense is a
[state jail] felony of the third degree. An offense under this
section is increased to the next higher category of offense if it is
shown on the trial of an offense under this section that:
(1) the defendant was previously convicted of an
offense under this code;
(2) the offense involved a voter 65 years of age or
older; or
(3) the defendant committed another offense under this
section in the same election.
(e) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both
[Subsections (a) and (c) do not apply if the person is related to
the applicant within the second degree by affinity or the third
degree by consanguinity, as determined under Subchapter B, Chapter
573, Government Code, or is registered to vote at the same address
as the applicant].
SECTION 8. Sections 86.006(f), (g), and (g-1), Election
Code, are amended to read as follows:
(f) A person commits an offense if the person knowingly
possesses an official ballot or official carrier envelope provided
under this code to another. Unless the person possessed the ballot
or carrier envelope with intent to defraud the voter or the election
authority, this subsection does not apply to a person who, on the
date of the offense, was:
(1) related to the voter within the second degree by
affinity or the third degree by consanguinity, as determined under
Subchapter B, Chapter 573, Government Code;
(2) physically living in [registered to vote at] the
same dwelling [address] as the voter;
(3) an early voting clerk or a deputy early voting
clerk;
(4) a person who possesses a ballot or [the] carrier
envelope solely for the purpose of lawfully assisting a voter who
was eligible for assistance under Section 86.010 and complied fully
with:
(A) Section 86.010; and
(B) Section 86.0051, if assistance was provided
only in order to deposit the envelope in the mail or with a common or
contract carrier [and who provides the information required by
Section 86.0051(b) in accordance with that section];
(5) an employee of the United States Postal Service
working in the normal course of the employee's authorized duties;
or
(6) a common or contract carrier working in the normal
course of the carrier's authorized duties if the official ballot is
sealed in an official carrier envelope that is accompanied by an
individual delivery receipt for that particular carrier envelope.
(g) An offense under Subsection (f) is a Class A misdemeanor
unless the defendant possessed the ballot or carrier envelope
without the request of the voter, in which case it is a felony of the
third degree. If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both [:
[(1) a Class B misdemeanor if the person possesses at
least one but fewer than 10 ballots or carrier envelopes unless the
person possesses the ballots or carrier envelopes without the
consent of the voters, in which event the offense is a state jail
felony;
[(2) a Class A misdemeanor if the person possesses at
least 10 but fewer than 20 ballots or carrier envelopes unless the
person possesses the ballots or carrier envelopes without the
consent of the voters, in which event the offense is a felony of the
third degree; or
[(3) a state jail felony if the person possesses 20 or
more ballots or carrier envelopes unless the person possesses the
ballots or carrier envelopes without the consent of the voters, in
which event the offense is a felony of the second degree].
(g-1) An offense under Subsection (g) is increased to the
next higher category of offense if it is shown on the trial of an
offense under this section that:
(1) the defendant was previously convicted of an
offense under this code;
(2) the offense involved an individual 65 years of age
or older; or
(3) the defendant committed another offense under this
section in the same election [When ballots or carrier envelopes are
obtained in violation of this section pursuant to one scheme or
continuing course of conduct, whether from the same or several
sources, the conduct may be considered as one offense and the number
of ballots or carrier envelopes aggregated in determining the grade
of the offense].
SECTION 9. The heading to Section 86.010, Election Code, is
amended to read as follows:
Sec. 86.010. UNLAWFULLY ASSISTING VOTER VOTING BALLOT BY
MAIL.
SECTION 10. Section 86.010, Election Code, is amended by
amending Subsections (b), (d), (g), and (h) and adding Subsections
(i) and (j) to read as follows:
(b) Assistance rendered under this section is limited to
that authorized by this code at a polling place, except that a voter
with a disability who is physically unable to deposit the ballot and
carrier envelope in the mail may also select a person as provided by
Section 64.032(c) to assist the voter by depositing a sealed
carrier envelope in the mail.
(d) If a voter is assisted in violation of this section
[Subsection (a) or (b)], the voter's ballot may not be counted.
(g) An offense under this section is a [Class A misdemeanor
unless the person is convicted of an offense under Section 64.036
for providing unlawful assistance to the same voter, in which event
the offense is a] state jail felony.
(h) Subsection (f) does not apply if the person is related
to the voter [applicant] within the second degree by affinity or the
third degree by consanguinity, as determined under Subchapter B,
Chapter 573, Government Code, or was physically living in [is
registered to vote at] the same dwelling [address] as the voter at
the time of the event [applicant].
(i) An offense under this section is increased to the next
higher category of offense if it is shown on the trial of an offense
under this section that:
(1) the defendant was previously convicted of an
offense under this code;
(2) the offense involved a voter 65 years of age or
older; or
(3) the defendant committed another offense under this
section in the same election.
(j) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 11. Section 87.027(i), Election Code, is amended to
read as follows:
(i) The signature verification committee shall compare the
signature on each carrier envelope certificate, except those signed
for a voter by a witness, with the signature on the voter's ballot
application to determine whether the signatures are those of the
same person. The committee may also compare the signatures with
any two or more signatures of the voter made within the preceding
six years and on file with the general custodian of election records
or voter registrar [the signature on the voter's registration
application] to confirm that the signatures are those of the same
person and may [but may not] use the signatures [registration
application signature] to determine that the signatures are not
those of the same person. Except as provided by Subsection (l), a
determination under this subsection that the signatures are not
those of the same person must be made by a majority vote of the
committee's membership. The committee shall place the jacket
envelopes, carrier envelopes, and applications of voters whose
signatures are not those of the same person in separate containers
from those of voters whose signatures are those of the same
person. The committee chair shall deliver the sorted materials to
the early voting ballot board at the time specified by the board's
presiding judge.
SECTION 12. Section 87.041(e), Election Code, is amended to
read as follows:
(e) In making the determination under Subsection (b)(2),
the board may also compare the signatures with any two or more
signatures of the voter made within the preceding six years and on
file with the general custodian of election records or voter
registrar to determine if [confirm that] the signatures are those
of the same person [but may not use the signatures to determine that
the signatures are not those of the same person].
SECTION 13. The heading to Section 107.004, Election Code,
as effective September 1, 2017, is amended to read as follows:
Sec. 107.004. EARLY VOTING AT RESIDENTIAL CARE FACILITY
[REQUIRED].
SECTION 14. Section 107.004(a), Election Code, as effective
September 1, 2017, is amended to read as follows:
(a) A voter residing in a residential care facility who has
applied to vote early by mail on the grounds of age or disability
and who requested that the ballot be sent to the address of the
facility:
(1)[,] must vote as provided by this chapter if five or
more applications for ballots to be voted by mail were made by
residents of the same facility who requested that the ballots be
sent to the facility; and
(2) may vote as provided by this chapter, at the
discretion of the early voting clerk, if fewer than five
applications for ballots to be voted by mail were made by residents
of the same facility who requested that the ballots be sent to the
facility.
SECTION 15. Section 107.005(a), Election Code, as effective
September 1, 2017, is amended to read as follows:
(a) Additional election judges shall be selected to serve at
a residential care facility in the same manner as election officers
[judges] are selected to serve at a polling place for early voting
by personal appearance [under Chapter 32]. For the general
election for state and county officers, the election judges shall
be selected in the manner provided for election officers under
Section 85.009. The county chair of a political party shall
indicate on the list of names of persons whether a person is willing
to serve as an election judge under this chapter.
SECTION 16. Section 107.006, Election Code, as effective
September 1, 2017, is amended by amending Subsection (c) and adding
Subsections (d), (e), and (f) to read as follows:
(c) If [An election judge may enter the private room of] a
voter [who] requests that balloting materials be brought to the
voter, both election judges may concurrently enter the private room
of the voter.
(d) During the hours voting is conducted at a residential
care facility, all laws under this code concerning electioneering
apply to the facility.
(e) A person who is not a resident of the residential care
facility may not be present at the facility during the hours voting
is being conducted at the facility, unless the person is:
(1) conducting the election under this chapter;
(2) an employee of the facility or otherwise attending
to the business of the facility; or
(3) related to a resident of the facility within the
second degree by affinity or the third degree by consanguinity, as
determined under Subchapter B, Chapter 573, Government Code, and is
not attempting to electioneer or influence a voter.
(f) A person described by Subsection (e)(3) may be chosen to
assist a voter in accordance with Section 64.032(c).
SECTION 17. Sections 107.007(b), (d), and (f), Election
Code, as effective September 1, 2017, are amended to read as
follows:
(b) Not later than 5 p.m. on the sixth business day before
election day, the early voting clerk [election judges] shall, with
the input of the administrator of the residential care facility,
designate one or more times for voting to be conducted. Voting may
be conducted not earlier than the 38th [29th] day before election
day and not later than the fourth day preceding election day.
(d) The early voting clerk shall maintain a public list of
all residential care facilities in the clerk's jurisdiction at
which voting is conducted under this chapter. The list must be
available on the website of the authority conducting the election
or posted at the location where public notices are posted in the
county courthouse or authority public building, as applicable, and
for each facility state:
(1) the name of the facility;
(2) the address of the facility; and
(3) the dates and times for voting at the facility[;
and
[(4) the names of the election judges for the
facility].
(f) At any time during the year and regardless of whether
five or more voters at a residential care facility have requested
ballots to be voted by mail, the early voting clerk may post notice
of the dates on which voting will be conducted at the facility under
this chapter for each election. [If the early voting clerk posts
notice under this subsection, the names of the election judges and
the hours during which voting will be conducted must be posted at
least 48 hours before voting is conducted at the facility,
notwithstanding Subsection (c).]
SECTION 18. Section 107.009, Election Code, as effective
September 1, 2017, is amended to read as follows:
Sec. 107.009. VOTING BY ADDITIONAL QUALIFIED VOTERS. A
qualified voter who resides and is registered to vote at a
residential care facility where voting is conducted under this
chapter may, while voting is being conducted, communicate to an
election judge that the person has not completed an application for
a ballot to be voted by mail but would like to vote by mail. The
election judges shall provide the person with a ballot by mail
application. The voter may complete the application and return it
to the election judges, who shall deliver the application to the
early voting clerk on the same day. If the application is received
before the deadline to receive mail ballot applications, the early
voting clerk shall prepare and provide ballot materials for the
voter, and the judges shall return to the facility to provide the
voter with the ballot materials. [(a) The early voting clerk
shall produce a list of all additional qualified voters who reside
and are registered to vote at a residential care facility where
voting is conducted under this chapter.
[(b) The clerk shall supply the election judges for the
residential care facility with sufficient additional ballots and
voting materials to allow any additional qualified voter who
resides at the facility to vote under this chapter. During the
voting period, any registered voter who resides at the facility may
complete an application to request a mail ballot as if they were
voting by mail. An election judge for the facility shall serve as a
witness for any person who is unable to sign their name and may
witness multiple applications.
[(c) An election judge for the residential care facility
must accept a properly completed application for a ballot made
under this section, and shall provide a ballot to the voter. The
election judge shall make a notation on an application that it was
made under this section.
[(d) A voter who applies for a ballot under this section
shall vote in the manner provided by Section 107.008, except that
the voter's ballot must be stored with the voter's application, and
the voter's ballot may not be counted if the voter was not a
qualified voter for the election as demonstrated from the
information contained in the voter's application.
[(e) An election judge at the residential care facility may
assist and witness a ballot received by a voter who resides at the
facility and is not registered to vote at the facility while the
election judge is present at the facility.
[(f) The secretary of state may prescribe an application for
a voter to request a ballot under Subsection (b).]
SECTION 19. Section 107.012(b), Election Code, as effective
September 1, 2017, is amended to read as follows:
(b) A voter may receive assistance in the same manner as
provided by Subchapter B, Chapter 64. If the voter cannot
comprehend the language in which the ballot or balloting materials
are printed:
(1) an election judge may contact the early voting
clerk to request that a translator translate the ballot or
balloting materials over the phone; or
(2) the voter may use an interpreter in accordance
with Section 61.032, who may translate the ballot or balloting
materials in the presence of the election judges.
SECTION 20. Sections 107.014(b), (c), and (d), Election
Code, as effective September 1, 2017, are amended to read as
follows:
(b) Any registered voter who was required to vote at the
residential care facility under Section 107.004(a)(1) who did not
cast a ballot at the [residential care] facility and who did not
make a request under Section 107.009 may cast a ballot by[:
[(1)] voting in person on election day[; or
[(2) voting by mail].
(c) If one or more voters who requested a ballot by mail are
not present during the scheduled time for voting to be conducted at
the residential care facility, the election judges may request that
the early voting clerk, in accordance with Section 107.007(b),
arrange a suitable time for the judges to return to conduct voting
[An election judge shall leave a ballot package for a voter who:
[(1) requested a ballot to be voted by mail and was not
present during the scheduled time for early voting at the
residential care facility; and
[(2) is expected to return to the residential care
facility before the deadline for returning a ballot by mail].
(d) If a voter who requested a ballot to be voted by mail
under this chapter is temporarily located at another location,
including by hospitalization,[:
[(1)] the early voting clerk may mail the ballot to the
voter's temporary address, if known[; or
[(2) the election judge may personally deliver the
ballot package to the voter's temporary address, if known].
SECTION 21. Sections 107.003, 107.011, and 107.014(e),
Election Code, as effective September 1, 2017, are repealed.
SECTION 22. The changes in law made by this Act apply only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
governed by the law in effect when the offense was committed, and
the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
SECTION 23. This Act takes effect January 1, 2018.