By: Fallon H.B. No. 4131

A BILL TO BE ENTITLED

AN ACT

relating to assisting voters and other voting processes and procedures; creating criminal offenses; increasing criminal penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. S ection 61.033, Election Code, is amended to read as follows:

Sec. 61.033. ELIGIBILITY TO SERVE AS INTERPRETER. To be eligible to serve as an interpreter for the purpose of communicating with an election officer, a person must be a registered voter in this state [of the county in which the voter needing the interpreter resides].

SECTION 2. Section 63.012, Election Code, is amended to read as follows:

Sec. 63.012. UNLAWFULLY ACCEPTING OR REFUSING TO ACCEPT VOTER. (a) An election officer commits an offense if the officer knowingly:

(1) permits an ineligible voter to vote other than as provided by Section 63.011; [or]

(2) permits an unlawful vote or ineligible ballot to be cast in a manner that will be counted; or

(3) refuses to accept a person for voting whose acceptance is required by this code.

(b) An offense under this section is a Class A [B] misdemeanor.

SECTION 3. Subchapter B, Chapter 64, Election Code, is amended by adding Section 64.030 to read as follows:

Sec. 64.030. DEFINITION. In this subchapter, "compensation" means any monetary payment, goods, services, benefits, employment, political favors, acts of official discretion, or other form of consideration offered to another person in exchange for assisting voters.

SECTION 4. Section 64.031, Election Code, is amended to read as follows:

Sec. 64.031. ELIGIBILITY FOR ASSISTANCE. (a) A voter is eligible to receive assistance in marking the ballot, as provided by this subchapter, if the voter cannot prepare the ballot because of:

(1) a physical disability that renders the voter unable to mark the ballot [write] or see the ballot; or

(2) an inability to read the language in which the ballot is written.

(b) An election officer commits an offense if the election officer knowingly allows a voter who is ineligible for assistance under Subsection (a) to receive assistance.

(c) An offense under Subsection (b) is a Class A misdemeanor.

SECTION 5. Section 64.032, Election Code, is amended by amending Subsections (c) and (d) and adding Subsection (c-1) to read as follows:

(c) On the voter's request, the voter may be assisted by any person selected by the voter other than:

(1) the voter's employer;

(2) [,] an agent of the voter's employer;

(3) [, or] an officer or agent of a labor union to which the voter belongs;

(4) a candidate for office;

(5) a person previously convicted of an election-related offense;

(6) a person who is not an election judge or clerk and who receives or is offered or promised compensation for assisting voters; or

(c-1) Notwithstanding Subsection (c), on the voter's request, a voter may be assisted by a person who:

(1) 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

(2) physically lives in the same residence as the voter.

(d) If assistance is provided by a person of the voter's choice, an election officer shall enter the person's name and address on the poll list beside the voter's name and shall require the assistant to complete a voter assistance affidavit under Section 64.034.

SECTION 6. Section 64.034, Election Code, is amended to read as follows:

Sec. 64.034. VOTER ASSISTANCE AFFIDAVIT REQUIRED [OATH]. (a) Before a [A] person other than an election officer provides [selected to provide] assistance to a voter, the person must complete, sign, and submit a voter assistance affidavit that includes:

(1) the assisting person's legal name, residence address, and date of birth;

(2) the nature of the relationship of the person to the voter;

(3) an affirmation that the person has never been convicted of an election-related offense;

(4) an affirmation that the person has not been compensated in any way or offered or promised any type of compensation, political favor, or official act of discretion to assist voters;

(5) an affirmation that the person did not approach the voter and offer assistance; and

(6) [must take] the following oath[, administered by an election officer at the polling place, before providing assistance]:

"I swear (or affirm) under penalty of law that all of the above information and affirmations are true and accurate, and that I will not suggest, by word, sign, or gesture, how the voter should vote; I will confine my assistance to answering the voter's questions, to stating propositions on the ballot, and to naming candidates and, if listed, their political parties; I will prepare the voter's ballot only as the voter specifically directs; and I am not the voter's employer, an agent of the voter's employer, [or] an officer or agent of a labor union to which the voter belongs, or a candidate for office. I understand it is a criminal offense to provide false information or to in any way influence the independent choice of the voter."

(b) Before allowing a person other than an election officer to assist a voter, an election officer must review the voter assistance affidavit form and confirm that the form is complete and the assisting person is eligible to assist the voter under Section 64.032, based on the answers provided.

(c) An election officer commits an offense if the officer knowingly fails to comply with any part of Subsection (b). An offense under this subsection is a Class A misdemeanor.

(d) A person commits an offense if the person knowingly provides false information under this section. An offense under this subsection is a state jail felony.

(e) A person commits an offense if the person knowingly fails to submit a completed affidavit under this section. An offense under this subsection is a Class A misdemeanor.

(f) An offense under this section is increased to the next higher category of offense if it is shown on the trial of an offense under this section that:

(1) the defendant was previously convicted of an offense under this code;

(2) the offense involved a voter 65 years of age or older; or

(3) the defendant committed another offense under this section in the same election.

(g) The secretary of state shall prescribe a form to implement this section.

SECTION 7. Section 64.036, Election Code, is amended to read as follows:

Sec. 64.036. UNLAWFULLY ASSISTING OR INFLUENCING A VOTER [UNLAWFUL ASSISTANCE]. (a) A person commits an offense if the person knowingly:

(1) provides or offers to provide 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;

(3) while assisting a voter suggests by word, sign, or gesture how the voter should vote; or

(4) provides or offers to provide assistance to a voter who has not first requested assistance or selected the person to assist the voter.

(b) A person commits an offense if the person knowingly assists a voter in violation of Section 64.032 [64.032(c)].

(c) An election officer commits an offense if the officer knowingly permits a person to provide assistance:

(1) to a voter in violation of this section [who is not eligible for assistance]; or

(2) in violation of Section 64.032 [64.032(c)].

(d) An offense under this section is a state jail felony, unless the offense is committed under Subsection (c), in which case it is a Class A misdemeanor.

(e) An offense under this section is increased to the next higher category of offense if it is shown on the trial of an offense under this section that:

(1) the defendant was previously convicted of an offense under this code;

(2) the offense involved a voter 65 years of age or older; or

(3) the defendant committed another offense under this section in the same election.

SECTION 8. Section 84.004(e), Election Code, is amended to read as follows:

(e) An offense under this section is a Class A [B] misdemeanor.

SECTION 9. Section 84.0041, Election Code, is amended to read as follows:

Sec. 84.0041. FRAUDULENT USE OF [PROVIDING FALSE INFORMATION ON] APPLICATION FOR BALLOT BY MAIL. (a) A person commits an offense if the person knowingly provides or causes false information to be provided on an application for an early voting ballot by mail.

(a-1) A person other than the voter commits an offense if the person knowingly alters a voter's application for ballot by mail or causes an application to be altered, without the voter's express consent. This offense does not apply to an early voting clerk or deputy early voting clerk who receives and marks an application for administrative purposes only.

(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].

(c) An offense under this section is increased to the next higher category of offense if it is shown on the trial of an offense under this section that:

(1) the defendant was previously convicted of an offense under this code;

(2) the offense involved a voter 65 years of age or older; or

(3) the defendant committed another offense under this section in the same election.

SECTION 10. Chapter 86, Election Code, is amended by adding Section 86.0061 to read as follows:

Sec. 86.0061. UNLAWFUL POSSESSION OF BALLOT. (a) A person commits an offense if the person knowingly possesses an official ballot or official carrier envelope provided under this code to another person. Unless the person possessed the ballot or carrier envelope with intent to defraud the voter or the election authority, this subsection does not apply to a person who, on the date of the possession:

(1) was 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) was registered to vote at and physically living in the same residence as the voter;

(3) possessed the ballot or carrier envelope solely for the temporary purpose of assisting a voter who was eligible for assistance under Section 64.031, did not commit an offense under Section 64.036, and fully complied with the requirements of Section 86.010;

(4) was a deputy voter registrar who:

(A) possessed a sealed carrier envelope for the sole purpose of depositing the carrier envelope in the mail;

(B) met the qualifications of an assistant under Section 64.032; and

(C) truthfully completed the affidavit required of an assistant on the certificate of the carrier envelope;

(5) was an early voting clerk, deputy early voting clerk, or other election officer;

(6) was an officer of the court, agent of law enforcement, or other individual authorized by a court who possessed a ballot or carrier envelope for the purpose of an election contest, criminal investigation, or proceeding in connection with an election; or

(7) was an employee of the United States Postal Service working in the normal course of the employee's authorized duties.

(b) An offense under Subsection (a) is a state jail felony.

(c) An offense under this section is increased to the next higher category of offense if it is shown on the trial of an offense under this section that:

(1) the defendant was previously convicted of an offense under this code;

(2) the offense involved an individual 65 years of age or older;

(3) the defendant committed another offense under this section in the same election; or

(4) the defendant possessed the ballot or carrier envelope without the express consent of the voter.

(d) In the prosecution of an offense under this section:

(1) the prosecuting attorney is not required to negate the applicability of the provisions of Subsection (a)(1), (2), (3), or (4) in the charging instrument;

(2) the issue of the applicability of a provision of Subsection (a)(1), (2), (3), or (4) is not submitted to the jury unless evidence of that provision is admitted; and

(3) if the issue of the applicability of a provision of Subsection (a)(1), (2), (3), or (4) is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e) A ballot returned in violation of this section may not be counted.

SECTION 11. Section 86.010, Election Code, is amended to read as follows:

Sec. 86.010. UNLAWFULLY ASSISTING VOTER VOTING BALLOT BY MAIL. (a) A voter casting a ballot by mail who would be eligible under Section 64.031 to receive assistance at a polling place may select a person as provided by Section 64.032(c) to assist the voter in preparing the ballot.

(b) Assistance rendered under this section is limited to that authorized by this code at a polling place.

(c) The person assisting the voter must sign and complete a written affidavit [oath] prescribed by Section 64.034 that is part of the certificate on the official carrier envelope.

(d) If a voter is assisted in violation of this section [Subsection (a) or (b)], the voter's ballot may not be counted.

(e) Before accepting a ballot under this section, an early voting clerk must confirm the information provided under Subsection (c) following the procedure described by Section 64.034(b) [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 who assists a voter commits an offense if the person knowingly fails to provide the information on the official carrier envelope [as] required by Subsection (c) [(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 and physically lives in the same residence [address] as the applicant.

(i) An offense under this section is increased to the next higher category of offense if it is shown on the trial of an offense under this section that:

(1) the defendant was previously convicted of an offense under this code;

(2) the offense involved a voter 65 years of age or older; or

(3) the defendant committed another offense under this section in the same election.

SECTION 12. Section 86.0105, Election Code, is amended to read as follows:

Sec. 86.0105. PAID VOTE HARVESTING ACTIVITY [COMPENSATION FOR ASSISTING VOTERS PROHIBITED]. (a) A person commits an offense if the person:

(1) compensates or offers to compensate another person for collecting mail ballots or assisting voters [as provided by Section 86.010,] as part of any performance-based compensation scheme based on the number of ballots collected or voters assisted or in which another person is presented with a quota of ballots to be collected or voters to be assisted [as provided by Section 86.010];

(2) engages in another practice that causes another person's compensation from or employment status with the person to be dependent on the number of ballots collected or voters assisted [as provided by Section 86.010]; or

(3) [with knowledge that accepting compensation for such activity is illegal,] accepts compensation or an offer of compensation for an activity described by Subdivision (1) or (2).

(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor [punishable by:

[(1) confinement in jail for a term of not more than one year or less than 30 days; or

[(2) confinement described by Subdivision (1) and a fine not to exceed $4,000].

(c) An offense under this section is increased to the next higher category of offense [a state jail felony] if it is shown on the trial of an offense under this section that:

(1) the defendant was previously convicted of an offense under this code;

(2) the offense involved a voter 65 years of age or older; or

(3) the defendant committed another offense [two or more times] under this section in the same election.

(d) An officer, director, or other agent of an entity that commits an offense under this section is punishable for the offense.

(e) For purposes of this section, compensation means any form of monetary payment, goods, services, benefits, or promises or offers of employment, or any other form of consideration offered to another person in exchange for assisting voters.

SECTION 13. Section 86.013(d), Election Code, is amended to read as follows:

(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;

(3) the requirements for the legal execution and delivery of the carrier envelope, including the prohibition on compensation for depositing carrier envelopes containing ballots voted by other persons under Section 86.0105 [86.0052];

(4) the prohibition prescribed by Section 86.006(e); and

(5) the offenses prescribed by Sections 86.0061 [86.006(f)] and 86.010(f).

SECTION 14. Section 87.041, Election Code, is amended by amending Subsections (b) and (e) and adding Subsection (g) to read as follows:

(b) A ballot may be accepted only if:

(1) the carrier envelope certificate is properly executed in compliance with Sections 86.006 and 86.010;

(2) neither the voter's signature on the ballot application nor the signature on the carrier envelope certificate is determined to have been executed by a person other than the voter, unless signed by a witness;

(3) the voter's ballot application states a legal ground for early voting by mail;

(4) the voter is registered to vote, if registration is required by law;

(5) the address to which the ballot was mailed to the voter, as indicated by the application, was outside the voter's county of residence, if the ground for early voting is absence from the county of residence;

(6) for a voter to whom a statement of residence form was required to be sent under Section 86.002(a), the statement of residence is returned in the carrier envelope and indicates that the voter satisfies the residence requirements prescribed by Section 63.0011; and

(7) the address to which the ballot was mailed to the voter is an address that is otherwise required by Sections 84.002 and 86.003.

(e) In making the determination under Subsection (b)(2), the board may also compare the signatures with any two or more signatures of the voter made within the preceding six years and on file with the voter registrar to confirm that the signatures are those of the same person [but may not use the signatures to determine that the signatures are not those of the same person].

(g) A person commits an offense if the person intentionally accepts a ballot or causes a ballot to be accepted for voting that does not meet the requirements of Subsection (b). An offense under this subsection is a Class A misdemeanor.

SECTION 15. Section 87.0431, Election Code, is amended to read as follows:

Sec. 87.0431. NOTICE OF REJECTED BALLOT. (a) Not later than the 10th day after election day, the presiding judge of the early voting ballot board shall deliver written notice of the reason for the rejection of a ballot to the voter at the residence address on the ballot application. If the ballot was transmitted to the voter by e-mail under Subchapter C, Chapter 101, the presiding judge shall also provide the notice to the e-mail address to which the ballot was sent.

(b) The presiding judge shall, not later than the 10th day after election day, deliver written notice to the attorney general, including certified copies of the carrier envelope and corresponding ballot application, of any ballot rejected because:

(1) the voter was deceased;

(2) the voter already voted in person in the same election;

(3) the signatures on the carrier envelope and ballot application were not executed by the same person;

(4) the carrier envelope certificate lacked a witness signature; or

(5) the carrier envelope certificate was improperly executed by an assistant.

SECTION 16. The following provisions of the Election Code are repealed:

(1) Sections 86.006(f), (g), (g-1), and (i); and

(2) Sections 86.0051 and 86.0052.

SECTION 17. The changes in law made by this Act apply only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 18. This Act takes effect September 1, 2017.