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By: Wolens H.B. No. 54
A BILL TO BE ENTITLED
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 and 1.018 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.
SECTION 3. Section 64.036, Election Code, is amended by
amending Subsections (a) and (d) and adding Subsections (e) and (f)
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) Except as provided by Subsection (e), an [An] offense
under this section is a Class B misdemeanor.
(e) An offense under this section committed in regard to a
voter casting an early voting ballot by mail is a Class A
misdemeanor unless the person also commits an offense under Section
86.010(e) in regard to the carrier envelope for that ballot, in
which event the offense under this section is a state jail felony.
(f) An offense under this section may be prosecuted under
this section or Section 83.081, as appropriate.
SECTION 4. Chapter 83, Election Code, is amended by adding
Subchapter D to read as follows:
SUBCHAPTER D. VOLUNTEER DEPUTY EARLY VOTING ASSISTANTS
Sec. 83.071. APPOINTMENT; TERM. (a) To maximize the
efficient conduct of early voting by mail, the early voting clerk
shall appoint as deputy early voting assistants persons who
volunteer to serve.
(b) In this code, "volunteer deputy early voting assistant"
means a deputy early voting assistant appointed under this
subchapter.
(c) Volunteer deputy early voting assistants serve for
terms expiring December 31 of even-numbered years.
Sec. 83.072. PROHIBITION ON REFUSING TO APPOINT. An early
voting clerk may not refuse to appoint as a volunteer deputy early
voting assistant a person who complies with Section 83.073.
Sec. 83.073. REQUEST FOR APPOINTMENT. (a) A person
desiring to serve as a volunteer deputy early voting assistant for a
particular political subdivision must request appointment by the
early voting clerk in person, by telephone, by telephonic facsimile
machine, or by mail.
(b) The early voting clerk shall mail the person a form for
requesting appointment, including an appropriate oath, and a set of
the rules applicable to the powers and duties of volunteer deputy
early voting assistants.
(c) To be appointed, the person must be a qualified voter of
the particular political subdivision and must deliver in person to
the early voting clerk or a designated deputy early voting clerk the
signed and completed oath and request form, including the person's
name, residence address, telephone number, voter registration
number, driver's license or personal identification card number,
and affirmation of an understanding of the applicable rules and
intention to comply with them.
(d) Before appointment, the person must present in person to
the early voting clerk or a designated deputy early voting clerk the
person's driver's license or personal identification card issued to
the person by the Department of Public Safety.
Sec. 83.074. CERTIFICATE OF APPOINTMENT. (a) If a person is
to be appointed a volunteer deputy early voting assistant, the
early voting clerk shall prepare a certificate of appointment in
duplicate containing:
(1) the date of appointment;
(2) the statement: "I, __________, Early Voting
Clerk for (name of political subdivision), do hereby appoint
__________ as a volunteer deputy early voting assistant for
(name of political subdivision).";
(3) the person's residence address;
(4) the person's voter registration number;
(5) a statement that the term of the appointment
expires December 31 of an even-numbered year; and
(6) the person's identification number as a volunteer
deputy early voting assistant, which must be the person's driver's
license or personal identification card number.
(b) The early voting clerk shall sign the certificate and
issue the original to the appointee, who shall sign it on receipt.
(c) A volunteer deputy early voting assistant shall present
the certificate as identification to an early voting applicant or
voter when collecting or receiving an application or carrier
envelope.
(d) A certificate of appointment creates a presumption that
the person is a volunteer deputy early voting assistant.
Sec. 83.075. ACTIVE APPOINTMENT FILE. The early voting
clerk shall maintain a file containing the duplicate certificates
of appointment of the volunteer deputy early voting assistants
whose appointments are effective.
Sec. 83.076. INACTIVE APPOINTMENT FILE. (a) The early
voting clerk shall maintain a file containing the duplicate
certificates of appointment of the volunteer deputy early voting
assistants whose appointments have been terminated.
(b) Each certificate and notice of termination shall be
retained on file for two years after the date of termination.
Sec. 83.077. TERMINATION OF APPOINTMENT. (a) An
appointment as a volunteer deputy early voting assistant is
terminated on:
(1) the expiration of the volunteer deputy's term of
appointment; or
(2) the final conviction of the volunteer deputy for
an election-related offense.
(b) The early voting clerk may terminate the appointment of
a volunteer deputy early voting assistant on a determination by the
clerk that the volunteer deputy:
(1) failed to adequately perform a duty under this
subchapter;
(2) failed to comply with Section 15.021 within 30
days after the date the volunteer deputy has knowledge of the change
in registration information; or
(3) failed to comply with a procedure prescribed by
the secretary of state to ensure the accountability of the carrier
envelopes.
(c) A person whose appointment is terminated under
Subsection (a)(2) may not be reappointed as a volunteer deputy
early voting assistant.
(d) Immediately on the termination of an appointment for a
ground other than Subsection (a)(1), the early voting clerk shall
deliver written notice of the termination to the volunteer deputy
early voting assistant by mail to the most recent residence address
listed on the volunteer deputy's certificate of appointment or a
notice submitted by the volunteer deputy under Section 15.021.
(e) A notice of termination must state the reason for the
termination and direct the person:
(1) to stop activity as a volunteer deputy early
voting assistant immediately; and
(2) to deliver the certificate of appointment, receipt
forms, and receipts, applications, and carrier envelopes in the
volunteer deputy's possession to the early voting clerk not later
than the second day after the date the deputy receives the
termination notice.
Sec. 83.078. COMPENSATION; BOND. (a) A person may not
receive compensation from a political subdivision or a political
campaign for service as a volunteer deputy early voting assistant.
(b) A volunteer deputy early voting assistant is not
required to give a bond in connection with the deputy's service.
Sec. 83.079. POWERS GENERALLY. A volunteer deputy early
voting assistant may, throughout the political subdivision for
which the volunteer deputy is appointed, collect or receive from
applicants for submission in person or by mail to the early voting
clerk signed applications for a ballot to be voted by mail and from
voters for delivery in person to the early voting clerk signed
carrier envelopes, as provided by this subchapter.
Sec. 83.080. REVIEW OF APPLICATION OR CARRIER ENVELOPE. (a)
On receipt of an early voting ballot application or carrier
envelope, a volunteer deputy early voting assistant shall review it
for completeness in the applicant's or voter's presence.
(b) The volunteer deputy early voting assistant shall
return the application or carrier envelope to the applicant or
voter for completion and resubmission if the application or carrier
envelope does not contain all the required information and the
required signature.
Sec. 83.081. ISSUANCE OF RECEIPT. (a) On receipt of a
completed carrier envelope, a volunteer deputy early voting
assistant shall prepare a receipt in duplicate on a form furnished
by the early voting clerk.
(b) The receipt must contain:
(1) the name of the voter;
(2) the date the completed carrier envelope is
submitted to the volunteer deputy early voting assistant; and
(3) the volunteer deputy's identification number.
(c) The volunteer deputy early voting assistant shall sign
the receipt in the voter's presence and shall give the original to
the voter.
(d) The volunteer deputy early voting assistant shall
deliver the duplicate receipt to the early voting clerk. The early
voting clerk shall retain the receipt on file with the voter's
application.
(e) A volunteer deputy early voting assistant commits an
offense if the deputy knowingly fails to comply with this section.
An offense under this section is a Class A misdemeanor. An offense
under this section may be prosecuted under this section or Section
64.036, as appropriate.
(f) The secretary of state may prescribe a procedure that is
an alternative to the procedure prescribed by this section that
will ensure the accountability of the carrier envelopes.
Sec. 83.082. SUBMISSION OR DELIVERY OF APPLICATION OR
CARRIER ENVELOPE. (a) A volunteer deputy early voting assistant
shall submit to the early voting clerk in person or by mail each
completed early voting ballot application received by the volunteer
deputy from an applicant.
(b) A volunteer deputy early voting assistant shall deliver
to the early voting clerk in person each completed carrier envelope
received by the volunteer deputy from a voter.
(c) An application or carrier envelope shall be submitted or
delivered not later than 24 hours after the time the application or
carrier envelope is received by the volunteer deputy early voting
assistant unless an earlier submission or delivery is necessary to
ensure timely receipt and processing by the early voting clerk.
Sec. 83.083. FAILURE TO SUBMIT OR DELIVER APPLICATION OR
CARRIER ENVELOPE. (a) A volunteer deputy early voting assistant
commits an offense if the volunteer deputy knowingly fails to
comply with Section 83.082.
(b) An offense under this section is a Class A misdemeanor.
Sec. 83.084. PURPORTEDLY ACTING AS VOLUNTEER DEPUTY EARLY
VOTING ASSISTANT. (a) A person commits an offense if the person
purports to act as a volunteer deputy early voting assistant when
the person does not have an effective appointment as a volunteer
deputy early voting assistant.
(b) An offense under this section is a Class A misdemeanor.
Sec. 83.085. ADDITIONAL PROCEDURES. The secretary of state
by rule shall prescribe any additional procedures necessary for the
orderly and proper administration of this subchapter. The system
for the appointment, powers, duties, and accountability of
volunteer deputy early voting assistants must be designed to
maximize the efficient conduct of early voting by mail and to
minimize the potential for illegal activity in connection with
early voting by mail.
SECTION 5. 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
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
unless 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, in which
event the offense is a Class C misdemeanor.
SECTION 6. 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 7. 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 8. Section 84.007, Election Code, is amended by
amending Subsection (b) and adding Subsection (e) to read as
follows:
(b) An application must be submitted to the early voting
clerk [by]:
(1) by mail;
(2) by common or contract carrier; [or]
(3) by telephonic facsimile machine, if the applicant
is absent from the county and if a machine is available in the
clerk's office; or
(4) in person by a volunteer deputy early voting
assistant.
(e) Except as provided by Section 84.009, an application may
be collected or received from an applicant for submission only by a
person 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, a person registered to
vote at the same address as the applicant, an early voting clerk, a
deputy early voting clerk, or a volunteer deputy early voting
assistant.
SECTION 9. 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);
(I) a statement informing the applicant of the
limitation prescribed by Section 84.007(e); and
(J) a space for entering the name and
identification number of the volunteer deputy early voting
assistant, if applicable.
SECTION 10. Section 86.006, Election Code, is amended by
amending Subsections (a), (d), and (e) and adding Subsections (f),
(g), (h), and (i) 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 delivered:
(1) by mail;
(2) [or] by common or contract carrier; or
(3) in person by a volunteer deputy early voting
assistant.
(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 that
payment for its delivery was made by the voter and that indicates
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. Carrier
envelopes covered by Subsection (c) may be accompanied by a single
delivery receipt indicating that payment for their delivery was
made by one of those voters. A delivery of carrier envelopes is
prohibited by a common or contract carrier if the delivery
originates from the address of:
(1) 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) Except as provided by this section, a carrier envelope
may be collected or received from a voter for delivery only by a
person 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, a person registered to vote at the
same address as the voter, or a volunteer deputy early voting
assistant. A volunteer deputy early voting assistant may not
deliver a carrier envelope by mail or by common or contract carrier.
(g) 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, a deputy early voting
clerk, or a volunteer deputy early voting assistant;
(4) an employee of the United States Postal Service
working in the normal course of the employee's authorized duties;
or
(5) 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
that indicates that payment for its delivery was made by the voter.
(h) An offense under Subsection (g) is:
(1) a Class C 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.
(i) [(e)] 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 11. Section 86.010, Election Code, is amended by
adding Subsection (e) to read as follows:
(e) A person assisting a voter in preparing a ballot to be
voted by mail commits an offense if the person knowingly fails to
enter the person's signature, printed name, and residence address
on the certificate on the carrier envelope in the spaces provided.
An offense under this subsection is a Class B misdemeanor unless the
person is 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, or is registered to
vote at the same address as the voter, in which event the offense is
a Class C misdemeanor.
SECTION 12. Sections 86.013(b), (d), and (f), Election
Code, are amended 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 indicating:
(1) the identity and date of the election; and
(2) the name and identification number of the
volunteer deputy early voting assistant, if applicable.
(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, including requirements relating
to volunteer deputy early voting assistants;
(4) the prohibition prescribed by Section 86.006(e);
(5) the limitations prescribed by Section 86.006(f);
and
(6) the offenses prescribed by Sections 64.036(e),
86.006(g), and 86.010(e).
(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).
SECTION 13. 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 14. 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) It is an exception to the application of this section
that the sale is part of a contract to which one party is a
government.
(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 15. 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 16. 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 17. This Act takes effect September 1, 2003.