SRC-JEC H.B. 54 78(R)   BILL ANALYSIS


Senate Research Center   H.B. 54
By: Wolens (Shapiro)
State Affairs
5/10/2003
Engrossed


DIGEST AND PURPOSE 

H.B. 54 clarifies procedures for early voting by mail and implements
provisions to prevent voting fraud.  The bill provides criminal penalties
for violation of voting fraud provisions. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the secretary of state in
SECTION 14 (Section 86.013, Election Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 1.012, Election Code, by adding Subsection (d),
to define "election record." 

SECTION 2.  Amends Chapter 1, Election Code, by adding Sections 1.017,
1.018, and 1.019, as follows: 

Sec. 1.017.  INELIGIBILITY NO DEFENSE TO PROSECUTION.  Provides that it is
no defense to prosecution under this code that a person who receives an
official ballot is ineligible to vote in the election for which the ballot
is received. 

Sec. 1.018.  APPLICABILITY OF PENAL CODE.  Provides that, in addition to
Section 1.03 (Effect of Code), Penal Code, and to other titles of the
Penal Code that may apply to this code, Title 4 (Inchoate Offenses), Penal
Code, applies to offenses prescribed by this code. 

Sec. 1.019.  REQUIRED EVIDENCE OR TESTIMONY.  (a)  Authorizes a party to
an offense under this code to be required to furnish evidence or testimony
about the offense. 

(b)  Prohibits evidence or testimony required to be furnished under this
section, or information directly or indirectly derived from that evidence
or testimony, from being used against the party providing the evidence or
testimony in a criminal case except for a prosecution of aggravated
perjury or contempt. 

SECTION 3.  Amends Section 64.012(a), Election Code, to provide that a
person commits an offense if the person knowingly marks or attempts to
mark another person's ballot without the consent of that person. 

SECTION 4.  Amends Subchapter B, Chapter 64, Election Code, by adding
Section 64.0321, as follows: 

Sec. 64.0321.  DEFINITION.  Provides that for purposes of this subchapter
and Sections 85.035 and 86.010, assisting a voter includes the following
conduct by a person other than the voter that occurs while the person is
in the presence of the voter's ballot or carrier envelope:  reading the
ballot to the voter; directing the voter to read the ballot; marking the
voter's ballot; or directing the voter to mark the ballot. 

SECTION 5.   Amends Sections 64.036(a) and (d), Election Code, as follows:
 
(a)  Provides that a person commits an offense if the person knowingly
while assisting a voter prepares the voter's ballot without direction from
the voter or provides assistance to a voter who has not requested
assistance or selected the person to assist the voter. 

(d)  Provides that an offense under this section is a Class A, rather than
B, misdemeanor. 

SECTION 6.  Amends Section 81.005, Election Code, as follows:

Sec. 81.005.  COMMON OR CONTRACT CARRIER.  (a)  Prohibits a common or
contract carrier from being used to perform an act in accordance with this
title unless the carrier meets certain conditions, including routinely
using certain receipts and complying with laws requiring the carrier to
file an assumed name with each county in which the carrier receives or
delivers parcels or with the secretary of state, as appropriate. 

(b)  Prohibits a common or contract carrier from being used to perform an
act in accordance with this title if the carrier transports property as an
incidental activity of a nontransportation business activity regardless of
whether the carrier imposes a separate charge for the transportation. 

SECTION 7.   Amends Section 84.003, Election Code, as follows:

Sec. 84.003.  New heading:  SIGNING APPLICATION BY WITNESS; ASSISTING
APPLICANT.  (a)  Created from existing text. 

(b)  Provides that 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. Provides that 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. 

(c)  Provides that an offense under this section is a Class A misdemeanor.

(d)  Provides that Subsection (b) does 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 (Relationships by
Consanguinity or by Affinity), Chapter 573, Government Code, or is
registered to vote at the same address as the applicant. 

SECTION 8.  Amends the heading to Section 84.004, Election Code, to read
as follows: 

Sec. 84.004.  UNLAWFULLY WITNESSING APPLICATION FOR MORE THAN ONE
APPLICANT. 

SECTION 9.  Amends Section 84.0041(b), Election Code, as follows:

(b)  Provides that 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. 

SECTION 10.  Amends Section 84.011(a), Election Code, to require the
officially prescribed application form for an early voting ballot to
include spaces for entering the signature, printed name, and residence
address of any person assisting the applicant.  Makes conforming changes. 

SECTION 11.  Amends Chapter 86, Election Code, by adding Section 86.0051,
as follows: 

Sec. 86.0051.  CARRIER ENVELOPE ACTION BY PERSON OTHER THAN VOTER;
OFFENSES.  (a)  Provides that a person commits an offense if the person
acts as a witness for a voter in signing the certificate on the carrier
envelope and knowingly fails to comply with Section 1.011. 

(b)  Requires a person other than the voter who deposits the carrier
envelope in the mail or with a common or contract carrier to provide the
person's signature, printed name, and residence address on the reverse
side of the envelope. 

(c)  Provides that a person commits an offense if the person knowingly
violates Subsection (b).  Provides that it is not a defense to an offense
under this subsection that the voter voluntarily gave another person
possession of the voter's carrier envelope. 
 
(d)  Provides that an offense under this section is a Class 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. 

(e)  Provides that 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 12.   Amends Section 86.006, Election Code, by amending
Subsections (a), (d), and (e) and adding Subsections (f), (g), and (h), as
follows: 

(a)  Authorizes the carrier envelope to be delivered in another envelope
and to be transported and delivered only by mail or by common or contract
carrier. 

(d)  Requires each carrier envelope that is delivered by a common or
contract carrier to be accompanied by an individual delivery receipt for
that particular carrier envelope that indicates the name and residence
address of the individual who actually delivered the envelope to the
carrier.  Deletes an exception in the event a carrier does not routinely
issue a receipt.  Makes a nonsubstantive change. 

(e)  Prohibits carrier envelopes from being collected and stored at
another location for subsequent delivery to the early voting clerk.
Requires the secretary of state to prescribe appropriate procedures to
implement this subsection and to provide accountability for the delivery
of the carrier envelopes from the voting place to the early voting clerk. 

(f)  Provides that a person commits an offense if the person knowingly
possesses an official ballot or official carrier envelope provided under
this code to another.  Provides that, unless the person possessed the
ballot or carrier envelope with intent to defraud the voter or the
election authority, it is an affirmative defense to prosecution under this
subsection that the person, on the date of the offense, met certain
criteria. 

(g)  Provides that an offense under Subsection (f) is:

(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. 

(h)  Redesignated from existing Subsection (e).

SECTION 13.  Amends Section 86.010, Election Code, by amending Subsection
(c) and adding Subsections (e), (f), (g), and (h), as follows: 

(c)  Requires the person assisting the voter to sign a written oath
prescribed by Section 64.034 that is part of the certificate on the
official carrier envelope. 

(e)  Requires a person who assists a voter to prepare a ballot to be voted
by mail to enter the person's signature, printed name, and residence
address on the official carrier envelope of the voter. 

(f)  Provides that a person commits an offense if the person knowingly
fails to provide the information on the official carrier envelope as
required by Subsection (e). 

(g)  Provides that 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)  Provides that Subsection (f) does 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 14.  Amends Section 86.013, Election Code, by amending Subsections
(b), (d), and (f) and adding Subsection (g), as follows: 

(b)  Requires spaces to appear on the reverse side of the official carrier
envelope for indicating the identity and date of the election, and
entering the signature, printed name, and residence address of a person
other than the voter who deposits the carrier envelope in the mail or with
a common or contract carrier. 

(d)  Requires certain textual material, as prescribed by the secretary of
state, to be printed on the reverse side of the official carrier envelope
or on a separate sheet accompanying the carrier envelope when it is
provided. 

(f)  Requires the oath of a person assisting a voter to be included on the
official carrier envelope as part of the certificate prescribed by
Subsection (c). 

(g)  Requires the secretary of state by rule to require that a notice
informing voters of the telephone number established under Section 31.0055
and the purpose of the telephone number be printed on the official carrier
envelope, or an insert enclosed with the balloting materials for voting by
mail sent to the voter. 

SECTION 15.  Amends Section 87.121(f), Election Code, to provide that
information on the roster for a person to whom an early voting mail ballot
has been sent is not available for public inspection, except to the voter
seeking to verify that the information pertaining to the voter is
accurate, until the first business day after election day.  Deletes text
outlining time guidelines for public inspection of the information. 

SECTION 16.  Amends Section 87.121, Election Code, by adding Subsection
(h), to require that information on the roster for a person who votes an
early voting ballot by mail be made available for public inspection not
later than the day following the day the early voting clerk receives a
ballot voted by mail. 

SECTION 17.  Amends Chapter 276, Election Code, by adding Section 276.010,
as follows: 
 
Sec. 276.010.  UNLAWFUL BUYING AND SELLING OF BALLOTING MATERIALS. (a)
Provides that a person commits an offense if the person buys, offers to
buy, sells, or offers to sell an official ballot, official ballot
envelope, official carrier envelope, signed application for an early
voting mail ballot, or any other original election record. 

(b)  Provides that this section does not apply to a person who executes a
written contract for the procurement of election supplies necessary to
conduct an election under Section 51.003. 

(c)  Provides that an offense under this section is a state jail felony
unless a voter sells a ballot, ballot envelope, or carrier envelope that
has been provided to the voter by government, in which event the offense
is a Class B misdemeanor. 

SECTION 18.  Amends Section 31.03(e), Penal Code, to provide that, except
as provided by Subsection (f), an offense under this section is a state
jail felony if the property stolen is an official ballot or official
carrier envelope for an election. 

SECTION 19.  Amends Section 37.01(2), Penal Code, to redefine
"governmental record" to include an official ballot or other election
record. 

SECTION 20.  Prohibits a district or county attorney, in the enforcement
of the provisions of this Act, for the purpose of intimidating a group of
voters, from prosecuting a person on account of the person's race,
ethnicity, or age.  Authorizes a violation of this section to be
prosecuted under Section 36.03 (Coercion of Public Servant or Voter) or
39.03 (Official Oppression), Penal Code. 

SECTION 21.  Makes application of this Act prospective.

SECTION 22.  Effective date:  September 1, 2003.