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.