1-1 By: Seidlits (Senate Sponsor - Carriker) H.B. No. 2468
1-2 (In the Senate - Received from the House May 7, 1993;
1-3 May 10, 1993, read first time and referred to Subcommittee on
1-4 Elections and Ethics; May 21, 1993, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 4, Nays
1-6 0; May 21, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Carriker x
1-10 Harris of Dallas x
1-11 Ellis x
1-12 Henderson x
1-13 Luna x
1-14 Parker x
1-15 Wentworth x
1-16 COMMITTEE SUBSTITUTE FOR H.B. No. 2468 By: Carriker
1-17 A BILL TO BE ENTITLED
1-18 AN ACT
1-19 relating to certain procedures regarding election contests and
1-20 recounts.
1-21 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-22 SECTION 1. Section 213.0111(a), Election Code, is amended to
1-23 read as follows:
1-24 (a) On receipt of an affidavit executed by any recount
1-25 committee member alleging that legal votes were not counted or
1-26 illegal votes were counted during the initial recount, the recount
1-27 coordinator may order a new recount of the disputed ballots. For a
1-28 county or precinct office in a primary election, the county
1-29 chairman may order the new recount only on the approval of the
1-30 state chairman.
1-31 SECTION 2. Section 213.033(a), Election Code, is amended to
1-32 read as follows:
1-33 (a) As soon as practicable after completion of a <If the>
1-34 recount that changes the number of votes received for a particular
1-35 candidate or for or against a measure, the canvassing authority
1-36 shall conduct a canvass for the office or measure involved using
1-37 the recount committee's report in the recount supervisor's
1-38 possession, instead of the original precinct election returns, for
1-39 each precinct in which a recount was conducted. An original <If
1-40 a canvass involving the office or measure is completed before the
1-41 recount begins, the previous> canvass for the office or measure is
1-42 void, and the new canvass is the official canvass for the election
1-43 on that office or measure. If no change occurs in the recount in
1-44 the number of votes received for a candidate or for or against a
1-45 measure, the official result of the election is determined from the
1-46 original canvass.
1-47 SECTION 3. Section 213.057, Election Code, is amended to
1-48 read as follows:
1-49 Sec. 213.057. Canvass Following Recount. As soon as
1-50 practicable after completion of a recount that changes the number
1-51 of votes received for a particular candidate or for or against a
1-52 measure <result of an election>, the final canvassing authority
1-53 shall conduct a canvass for the office or measure involved using
1-54 the recount supervisor's report, instead of the original county
1-55 election returns, for each county in which a recount was conducted.
1-56 An original <If the final canvass involving the office or measure
1-57 is completed before the recount begins, the previous> final canvass
1-58 for the office or measure is void, and the new final canvass is the
1-59 official final canvass for the election on that office or measure.
1-60 If no change occurs in the recount in the number of votes received
1-61 for a candidate or for or against a measure, the official result of
1-62 the election is determined from the original final canvass.
1-63 SECTION 4. Section 213.058(a), Election Code, is amended to
1-64 read as follows:
1-65 (a) Unless a person entitled to notice under Section 213.056
1-66 makes an objection to the recount coordinator before the canvass
1-67 resulting from a recount <that changed the result of the election>,
1-68 the final canvassing authority may use results reported to the
2-1 recount coordinator by telephone or telegraph under Section 213.054
2-2 as the basis for its canvass following an expedited recount if the
2-3 orderly conduct of a runoff election would be disrupted by delaying
2-4 the canvass until the recount supervisors' written reports are
2-5 received.
2-6 SECTION 5. Section 221.015, Election Code, is amended to
2-7 read as follows:
2-8 Sec. 221.015. Right to Occupy Office Involved in Contest.
2-9 (a) If the official result of a contested election shows that the
2-10 contestee won, on qualifying as provided by law the contestee is
2-11 entitled to occupy the office after the beginning of the term for
2-12 which the election was held, pending the determination of the
2-13 contest <rightful holder of the office>.
2-14 <(b)> If the final judgment does not change the official
2-15 result, the <of a contested election, a> contestee <occupying the
2-16 office under Subsection (a)> is entitled to continue in office
2-17 without again qualifying for the office<. If the judgment declares
2-18 the election void and the occupant is elected at the new election,
2-19 the occupant must again qualify for the office as if no contest had
2-20 occurred>.
2-21 (b) <(c)> If a final judgment declaring the contestant
2-22 elected is rendered after the beginning of the term for which the
2-23 contested election was held, on qualifying as provided by law the
2-24 contestant shall assume office as soon as practicable after the
2-25 judgment becomes final.
2-26 (c) A contestee occupying the office <(d) An officeholder
2-27 under Subsection (a)> is entitled to the emoluments of the office
2-28 that accrue during the period of occupancy. A contestant who gains
2-29 the office is not entitled to emoluments for any period before the
2-30 contestant assumes office.
2-31 (d) If the final judgment declares the election void, the
2-32 vacancy is created as of the later of the date of the judgment or
2-33 the first day of the term for which the contested election was
2-34 held. A person who occupies the office pending the outcome of the
2-35 new election, either as a constitutional holdover from the prior
2-36 term or through other law, is entitled to receive the emoluments of
2-37 office until the successor qualifies for the office after the new
2-38 election.
2-39 (e) The person elected at the new election must qualify for
2-40 the office as if no contest had occurred <This section applies to
2-41 a person appointed to fill a vacancy in the contested office>.
2-42 SECTION 6. Section 241.003, Election Code, is amended by
2-43 amending Subsection (b) and adding Subsection (d) to read as
2-44 follows:
2-45 (b) The contestant must file the petition with the secretary
2-46 of state not later than the seventh <10th> day after the date the
2-47 official result of the contested election is determined. The
2-48 contestant must deliver a copy of the petition to the contestee by
2-49 the same deadline.
2-50 (d) Section 1.006 does not apply to this section.
2-51 SECTION 7. Section 241.004, Election Code, is amended by
2-52 amending Subsection (b) and adding Subsection (c) to read as
2-53 follows:
2-54 (b) The contestee must file the answer with the secretary of
2-55 state not later than the seventh <10th> day after the date the
2-56 contestee receives the copy of the petition. The contestee must
2-57 deliver a copy of the answer to the contestant by the same
2-58 deadline.
2-59 (c) Section 1.006 does not apply to this section.
2-60 SECTION 8. Section 241.006(b), Election Code, is amended to
2-61 read as follows:
2-62 (b) The secretary of state shall deliver a petition to the
2-63 president of the senate or the speaker of the house of
2-64 representatives, as appropriate, as soon as possible but not later
2-65 than the <third> day after the date the petition is received. The
2-66 secretary shall deliver an answer to the appropriate presiding
2-67 officer as soon as possible but not later than the <third> day
2-68 after the date of its receipt.
2-69 SECTION 9. Chapter 241, Election Code, is amended by
2-70 amending Sections 241.009 and 241.011 and by adding Sections
3-1 241.0061 and 241.0091 to read as follows:
3-2 Sec. 241.0061. SECURITY FOR COSTS. (a) Not later than the
3-3 third day after the date the contestee's answer is received by the
3-4 presiding officer of the house having jurisdiction, the contestant
3-5 must file with the secretary of the senate or chief clerk of the
3-6 house of representatives, as appropriate:
3-7 (1) a cost bond payable to the appropriate house and
3-8 to the contestee in the amount of $5,000, having sufficient
3-9 sureties approved by the presiding officer, and conditioned that
3-10 the contestant will pay all costs of the contest assessed against
3-11 him;
3-12 (2) a cash deposit in lieu of bond; or
3-13 (3) an affidavit of inability to pay costs.
3-14 (b) Security for costs must be filed under Subsection (a),
3-15 and an affidavit of inability to pay costs may be contested, in the
3-16 manner generally applicable to a civil suit in the district court,
3-17 subject to any changes imposed by the master or by rules of the
3-18 house having jurisdiction.
3-19 Sec. 241.009. Master of Discovery. (a) As soon as
3-20 practicable <At any time> after receiving the contestee's answer,
3-21 the presiding officer of the house having jurisdiction shall <may>
3-22 appoint a master of discovery to supervise discovery proceedings
3-23 and the taking of depositions, to issue any necessary process, to
3-24 receive and report evidence, and to perform any other duties
3-25 assigned by the presiding officer or by the committee to which the
3-26 contest is referred.
3-27 (b) <If an appointment has not already been made, the
3-28 presiding officer shall appoint a master on request of the
3-29 committee to which the contest is referred or of any party to the
3-30 contest.>
3-31 <(c)> The master must be a member of the house in which the
3-32 contest is pending.
3-33 (c) <(d)> The presiding officer or the committee may limit
3-34 the master's authority in the same manner as a civil court in
3-35 appointing a master in chancery.
3-36 (d) <(e)> The master acts under the direction of the
3-37 presiding officer before the case is referred to a committee and
3-38 acts under the direction of the committee after the referral.
3-39 (e) <(f)> The master's rulings are subject to review by the
3-40 committee to which the contest is referred unless otherwise
3-41 provided by rules of the house.
3-42 Sec. 241.0091. FRIVOLOUS PETITION. (a) The master may on
3-43 his own motion, or shall on the motion of the committee, determine
3-44 whether the contestant's petition is frivolous or otherwise does
3-45 not state the grounds necessary to maintain the contest.
3-46 (b) After making a determination under Subsection (a), the
3-47 master shall promptly deliver to the committee a report stating the
3-48 findings. The report to the committee may include any
3-49 recommendation the master considers appropriate.
3-50 Sec. 241.011. Referral of Contest to Committee; Hearing by
3-51 Committee. (a) As soon as practicable after receiving the
3-52 contestee's answer, the presiding officer of the house in which the
3-53 contest is pending shall refer the contest to a special committee,
3-54 a standing committee, or a committee of the whole, as provided by
3-55 rules of the house.
3-56 (b) The committee shall promptly set a time and place for
3-57 hearing the contest. After notice to the parties, the committee
3-58 shall investigate the issues raised by the contest, hearing all
3-59 legal evidence presented by the parties, except as provided by
3-60 Subsection (c).
3-61 (c) The committee may refuse to hear testimony or other
3-62 evidence presented in person by the parties if the master
3-63 determines under Section 241.0091 that the contestant's petition is
3-64 frivolous or otherwise groundless.
3-65 SECTION 10. Sections 242.002(b) and (c), Election Code, are
3-66 amended to read as follows:
3-67 (b) Two copies of the petition and answer must be filed with
3-68 the secretary of state. The secretary shall deliver one copy of
3-69 each document to the presiding officer of each house of the
3-70 legislature. Security for costs must be filed with the chief
4-1 clerk of the house of representatives. Any cost bond must be
4-2 payable to both houses.
4-3 (c) The presiding officers of the two houses of the
4-4 legislature shall act jointly in appointing a master of discovery
4-5 and in setting the amount of and approving the sureties on a cost
4-6 bond. The master may be a member of either house.
4-7 SECTION 11. Section 242.003, Election Code, is amended to
4-8 read as follows:
4-9 Sec. 242.003. Contest for Office of Governor or Lieutenant
4-10 Governor. (a) This section applies only to a contest for the
4-11 office of governor or lieutenant governor.
4-12 (b) For <Except as provided by Subsection (d), for> purposes
4-13 of a <conducting the> contest under this section, the date the
4-14 official result of the contested election is determined is the date
4-15 the governor completes the state canvass. The official result is
4-16 determined from the tabulation of the election returns prepared by
4-17 the secretary of state, except as provided by Subsection (d).
4-18 (c) The secretary of state shall deliver a certified copy of
4-19 the tabulation to each of the presiding officers <instead of a
4-20 certified statement of the votes cast as shown by the official
4-21 canvass>.
4-22 (d) The committee to which the contest is referred may treat
4-23 the tabulation as correct until the speaker of the house of
4-24 representatives opens and publishes the official election returns.
4-25 If a discrepancy exists between the tabulation and the speaker's
4-26 official count that might be material to a determination of the
4-27 contest, the committee shall investigate the discrepancy to
4-28 ascertain, if possible, the correct vote count.
4-29 <(e) The speaker may announce the result of the election as
4-30 shown by the election returns but may not declare the candidate
4-31 receiving the most votes, as shown by the returns, to be elected
4-32 unless the judgment in the contest warrants that action. No
4-33 candidate is entitled to take office until the outcome of the
4-34 contest is finally determined.>
4-35 SECTION 12. This Act takes effect September 1, 1993.
4-36 SECTION 13. The importance of this legislation and the
4-37 crowded condition of the calendars in both houses create an
4-38 emergency and an imperative public necessity that the
4-39 constitutional rule requiring bills to be read on three several
4-40 days in each house be suspended, and this rule is hereby suspended.
4-41 * * * * *
4-42 Austin,
4-43 Texas
4-44 May 21, 1993
4-45 Hon. Bob Bullock
4-46 President of the Senate
4-47 Sir:
4-48 We, your Subcommittee on Elections and Ethics to which was referred
4-49 H.B. No. 2468, have had the same under consideration, and I am
4-50 instructed to report it back to the Senate with the recommendation
4-51 that it do not pass, but that the Committee Substitute adopted in
4-52 lieu thereof do pass and be printed.
4-53 Carriker,
4-54 Chairman
4-55 * * * * *
4-56 WITNESSES
4-57 No witnesses appeared on H.B. No. 2468.