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H.B. No. 54
AN ACT
relating to certain early voting by mail procedures and to the
prevention of voting fraud generally; providing criminal
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1.012, Election Code, is amended by
adding Subsection (d) to read as follows:
(d) In this code, "election record" includes:
(1) anything distributed or received by government
under this code;
(2) anything required by law to be kept by others for
information of government under this code; or
(3) a certificate, application, notice, report, or
other document or paper issued or received by government under this
code.
SECTION 2. Chapter 1, Election Code, is amended by adding
Sections 1.017, 1.018, and 1.019 to read as follows:
Sec. 1.017. INELIGIBILITY NO DEFENSE TO PROSECUTION. 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. In addition to
Section 1.03, Penal Code, and to other titles of the Penal Code that
may apply to this code, Title 4, Penal Code, applies to offenses
prescribed by this code.
Sec. 1.019. REQUIRED EVIDENCE OR TESTIMONY. (a) A party to
an offense under this code may be required to furnish evidence or
testimony about the offense.
(b) Evidence or testimony required to be furnished under
this section, or information directly or indirectly derived from
that evidence or testimony, may not be used against the party
providing the evidence or testimony in a criminal case except for a
prosecution of aggravated perjury or contempt.
SECTION 3. Section 64.012(a), Election Code, is amended to
read as follows:
(a) A person commits an offense if the person:
(1) votes or attempts to vote in an election in which
the person knows the person is not eligible to vote;
(2) knowingly votes or attempts to vote more than once
in an election; [or]
(3) knowingly impersonates another person and votes or
attempts to vote as the impersonated person; or
(4) knowingly marks or attempts to mark another
person's ballot without the consent of that person.
SECTION 4. Subchapter B, Chapter 64, Election Code, is
amended by adding Section 64.0321 to read as follows:
Sec. 64.0321. DEFINITION. 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:
(1) reading the ballot to the voter;
(2) directing the voter to read the ballot;
(3) marking the voter's ballot; or
(4) directing the voter to mark the ballot.
SECTION 5. Sections 64.036(a) and (d), Election Code, are
amended to read as follows:
(a) A person commits an offense if the person knowingly:
(1) provides assistance to a voter who is not eligible
for assistance;
(2) while assisting a voter prepares the voter's
ballot in a way other than the way the voter directs or without
direction from the voter; [or]
(3) while assisting a voter suggests by word, sign, or
gesture how the voter should vote; or
(4) provides assistance to a voter who has not
requested assistance or selected the person to assist the voter.
(d) An offense under this section is a Class A [B]
misdemeanor.
SECTION 6. Section 81.005, Election Code, is amended to
read as follows:
Sec. 81.005. COMMON OR CONTRACT CARRIER. (a) A common or
contract carrier may not be used to perform an act in accordance
with this title unless the carrier:
(1) is a bona fide, for profit carrier, the primary
business of which is transporting or delivering property for
compensation and the business practices of which are reasonable and
prudent according to the usual standards for the business in which
it is engaged;
(2) routinely uses receipts that:
(A) permit the carrier to retrieve a receipt or
information contained in a receipt;
(B) provide space for the name and residence
address of a person who delivers a parcel to the carrier; and
(C) provide space for the date, time, and address
at which parcels are received by the carrier; and
(3) complies 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) A common or contract carrier may not be 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. Section 84.003, Election Code, is amended to
read as follows:
Sec. 84.003. SIGNING APPLICATION BY WITNESS; ASSISTING
APPLICANT. (a) An early voting ballot application signed for the
applicant by a witness other than the early voting clerk or a deputy
must indicate the witness's relationship to the applicant or, if
unrelated, indicate that fact.
(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.
(c) An offense under this section is a Class A misdemeanor.
(d) 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, Chapter
573, Government Code, or is registered to vote at the same address
as the applicant.
SECTION 8. The heading to Section 84.004, Election Code, is
amended to read as follows:
Sec. 84.004. UNLAWFULLY WITNESSING APPLICATION FOR MORE
THAN ONE APPLICANT.
SECTION 9. Section 84.0041(b), Election Code, is amended to
read as follows:
(b) 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. Section 84.011(a), Election Code, is amended to
read as follows:
(a) The officially prescribed application form for an early
voting ballot must include:
(1) immediately preceding the signature space the
statement: "I certify that the information given in this
application is true, and I understand that giving false information
in this application is a crime.";
(2) a statement informing the applicant of the
offenses [offense] prescribed by Sections 84.003 and [Section]
84.004;
(3) spaces for entering an applicant's voter
registration number and county election precinct of registration,
with a statement informing the applicant that failure to furnish
that information does not invalidate the application; and
(4) on an application for a ballot to be voted by mail:
(A) a space for an applicant applying on the
ground of absence from the county of residence to indicate the date
on or after which the applicant can receive mail at the address
outside the county;
(B) a space for indicating the fact that an
applicant whose application is signed by a witness cannot make the
applicant's mark and a space for indicating the relationship or
lack of relationship of the witness to the applicant;
(C) a space for entering an applicant's telephone
number, with a statement informing the applicant that failure to
furnish that information does not invalidate the application;
(D) a space or box for an applicant applying on
the ground of age or disability to indicate that the address to
which the ballot is to be mailed is the address of a facility or
relative described by Section 84.002(a)(3), if applicable;
(E) a space or box for an applicant applying on
the ground of confinement in jail to indicate that the address to
which the ballot is to be mailed is the address of a relative
described by Section 84.002(a)(4), if applicable;
(F) spaces [a space] for entering the signature,
printed name, and residence address of any person assisting the
applicant;
(G) a statement informing the applicant of the
condition prescribed by Section 81.005; and
(H) a statement informing the applicant of the
requirement prescribed by Section 86.003(c).
SECTION 11. Section 84.032, Election Code, is amended by
adding Subsection (e) to read as follows:
(e) A request for cancellation in a manner other than as
authorized by this section, including a request by letter, has no
effect.
SECTION 12. Section 86.004, Election Code, is amended to
read as follows:
Sec. 86.004. TIME FOR PROVIDING BALLOT TO VOTER. 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 [voters as
soon as practicable after] the ballots become available for
mailing, except that if that mailing date is [but not] earlier than
the 45th day before election day, the balloting materials shall be
mailed not later than the 38th day before election day.
SECTION 13. Chapter 86, Election Code, is amended by adding
Section 86.0051 to read as follows:
Sec. 86.0051. CARRIER ENVELOPE ACTION BY PERSON OTHER THAN
VOTER; OFFENSES. (a) 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) A person other than the voter who deposits the carrier
envelope in the mail or with a common or contract carrier must
provide the person's signature, printed name, and residence address
on the reverse side of the envelope.
(c) A person commits an offense if the person knowingly
violates Subsection (b). 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) 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) 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 14. Section 86.006, Election Code, is amended by
amending Subsections (a), (d), and (e) and adding Subsections (f),
(g), and (h) to read as follows:
(a) A marked ballot voted under this chapter must be
returned to the early voting clerk in the official carrier
envelope. The carrier envelope may be delivered in another
envelope and must be transported and delivered only by mail or by
common or contract carrier.
(d) Each carrier envelope that is delivered by a common or
contract carrier must 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 and the date, hour, and address at which
the carrier envelope was received by the carrier [unless the
carrier does not routinely issue a receipt, in which case the
secretary of state shall prescribe appropriate procedures for
accounting for the delivery]. A delivery of carrier envelopes is
prohibited by a common or contract carrier if the delivery
originates from the address of:
(1) an office [the headquarters] of a political party
or a candidate in the election;
(2) a candidate in the election unless the address is
the residence of the early voter;
(3) a specific-purpose or general-purpose political
committee involved in the election; or
(4) an entity that requested that the election be
held, unless the delivery is a forwarding to the early voting clerk.
(e) Carrier envelopes may not be collected and stored at
another location for subsequent delivery to the early voting clerk.
The secretary of state shall 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) 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, it is an affirmative defense to prosecution under this
subsection that the person, 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) registered to vote at the same address as the
voter;
(3) an early voting clerk or a deputy early voting
clerk;
(4) a person who possesses the carrier envelope 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:
(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) A ballot returned in violation of this section may not
be counted. If the early voting clerk determines that the ballot
was returned in violation of this section, the clerk shall make a
notation on the carrier envelope and treat it as a ballot not timely
returned in accordance with Section 86.011(c). If the ballot is
returned before the end of the period for early voting by personal
appearance, the early voting clerk shall promptly mail or otherwise
deliver to the voter a written notice informing the voter that:
(1) the voter's ballot will not be counted because of a
violation of this code; and
(2) the voter may vote if otherwise eligible at an
early voting polling place or the election day precinct polling
place on presentation of the notice.
SECTION 15. Section 86.010, Election Code, is amended by
amending Subsection (c) and adding Subsections (e), (f), (g), and
(h) to read as follows:
(c) The person assisting the voter must sign a written oath
prescribed by Section 64.034 that is part of the certificate on the
official carrier envelope.
(e) A person who assists a voter to prepare a ballot to be
voted by mail shall enter the person's signature, printed name, and
residence address on the official carrier envelope of the voter.
(f) 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) 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 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 16. Section 86.013, Election Code, is amended by
amending Subsections (b), (d), and (f) and adding Subsection (g) to
read as follows:
(b) Spaces [for indicating the identity and date of the
election] must appear on the reverse side of the official carrier
envelope for:
(1) indicating the identity and date of the election;
and
(2) 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) The following textual material, as prescribed by the
secretary of state, must be printed on the reverse side of the
official carrier envelope or on a separate sheet accompanying the
carrier envelope when it is provided:
(1) the prohibition prescribed by Section 86.006(b);
(2) the conditions for delivery by common or contract
carrier prescribed by Sections 81.005 and 86.006; [and]
(3) the requirements for the legal execution and
delivery of the carrier envelope;
(4) the prohibition prescribed by Section 86.006(e);
and
(5) the offenses prescribed by Sections 86.006(f) and
86.010(f).
(f) The oath of a person assisting a voter must be included
on the official carrier envelope as part of the certificate
prescribed by Subsection (c).
(g) The secretary of state by rule shall 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:
(1) the official carrier envelope; or
(2) an insert enclosed with the balloting materials
for voting by mail sent to the voter.
SECTION 17. Section 87.121(f), Election Code, is amended to
read as follows:
(f) 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[:
[(1) 72 hours after the time a ballot is mailed to the
voter; or
[(2) 48 hours after the time a ballot is mailed to the
voter if the mailing occurs on the fourth day before] election day.
SECTION 18. Section 87.121, Election Code, is amended by
adding Subsection (h) to read as follows:
(h) Information on the roster for a person who votes an
early voting ballot by mail shall 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 19. Chapter 276, Election Code, is amended by
adding Section 276.010 to read as follows:
Sec. 276.010. UNLAWFUL BUYING AND SELLING OF BALLOTING
MATERIALS. (a) 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) 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) 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 20. Section 31.03(e), Penal Code, is amended to
read as follows:
(e) Except as provided by Subsection (f), an offense under
this section is:
(1) a Class C misdemeanor if the value of the property
stolen is less than:
(A) $50; or
(B) $20 and the defendant obtained the property
by issuing or passing a check or similar sight order in a manner
described by Section 31.06;
(2) a Class B misdemeanor if:
(A) the value of the property stolen is:
(i) $50 or more but less than $500; or
(ii) $20 or more but less than $500 and the
defendant obtained the property by issuing or passing a check or
similar sight order in a manner described by Section 31.06; or
(B) the value of the property stolen is less
than:
(i) $50 and the defendant has previously
been convicted of any grade of theft; or
(ii) $20, the defendant has previously been
convicted of any grade of theft, and the defendant obtained the
property by issuing or passing a check or similar sight order in a
manner described by Section 31.06;
(3) a Class A misdemeanor if the value of the property
stolen is $500 or more but less than $1,500;
(4) a state jail felony if:
(A) the value of the property stolen is $1,500 or
more but less than $20,000, or the property is less than 10 head of
cattle, horses, or exotic livestock or exotic fowl as defined by
Section 142.001, Agriculture Code, or any part thereof under the
value of $20,000, or less than 100 head of sheep, swine, or goats or
any part thereof under the value of $20,000;
(B) regardless of value, the property is stolen
from the person of another or from a human corpse or grave;
(C) the property stolen is a firearm, as defined
by Section 46.01; [or]
(D) the value of the property stolen is less than
$1,500 and the defendant has been previously convicted two or more
times of any grade of theft; or
(E) the property stolen is an official ballot or
official carrier envelope for an election;
(5) a felony of the third degree if the value of the
property stolen is $20,000 or more but less than $100,000, or the
property is:
(A) 10 or more head of cattle, horses, or exotic
livestock or exotic fowl as defined by Section 142.001, Agriculture
Code, stolen during a single transaction and having an aggregate
value of less than $100,000; or
(B) 100 or more head of sheep, swine, or goats
stolen during a single transaction and having an aggregate value of
less than $100,000;
(6) a felony of the second degree if the value of the
property stolen is $100,000 or more but less than $200,000; or
(7) a felony of the first degree if the value of the
property stolen is $200,000 or more.
SECTION 21. Section 37.01(2), Penal Code, is amended to
read as follows:
(2) "Governmental record" means:
(A) anything belonging to, received by, or kept
by government for information, including a court record;
(B) anything required by law to be kept by others
for information of government;
(C) a license, certificate, permit, seal, title,
letter of patent, or similar document issued by government, by
another state, or by the United States; [or]
(D) a standard proof of motor vehicle liability
insurance form described by Section 601.081, Transportation Code, a
certificate of an insurance company described by Section 601.083 of
that code, a document purporting to be such a form or certificate
that is not issued by an insurer authorized to write motor vehicle
liability insurance in this state, an electronic submission in a
form described by Section 502.153(i), Transportation Code, or an
evidence of financial responsibility described by Section 601.053
of that code; or
(E) an official ballot or other election record.
SECTION 22. In the enforcement of the provisions of this
Act, a district or county attorney may not, for the purpose of
intimidating a group of voters, prosecute a person on account of the
person's race, ethnicity, or age. A violation of this section may
be prosecuted under Section 36.03 or 39.03, Penal Code.
SECTION 23. The changes in law made by this Act apply only
to an election for which the action ordering the election is taken
on or after the effective date of this Act. An election for which
the action ordering the election is taken before the effective date
of this Act is governed by the law in effect on the date that action
is taken, and the former law is continued in effect for this
purpose.
SECTION 24. This Act takes effect September 1, 2003.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 54 was passed by the House on April 9,
2003, by a non-record vote; and that the House concurred in Senate
amendments to H.B. No. 54 on May 28, 2003, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 54 was passed by the Senate, with
amendments, on May 26, 2003, by a viva-voce vote.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor