CHAPTER 65. COUNTING VOTES AND PREPARING RETURNS - Texas Statutes

ELECTION CODE

TITLE 6. CONDUCT OF ELECTIONS

CHAPTER 65. COUNTING VOTES AND PREPARING RETURNS

SUBCHAPTER A. COUNTING VOTES GENERALLY

Sec. 65.001. COUNTING OFFICERS. At each polling place, the

ballots shall be counted by one or more teams of election

officers assigned by the presiding judge. Each team must consist

of two or more election officers.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

Sec. 65.002. TIME FOR COUNTING. (a) Subject to Subsection (b),

the presiding judge may direct the counting of ballots to occur

at any time after the polls have been open for one hour.

(b) While the polls are open and until voting is concluded after

the polls close, the ballot box for the deposit of voters' marked

ballots may not be opened for the purpose of counting the ballots

unless there are at least 10 ballots in the box.

(c) After the polls close or the last voter has voted, whichever

is later, the counting of ballots shall be conducted continuously

until all the ballots are counted.

(d) Repealed by Acts 2009, 81st Leg., R.S., Ch. 1235, Sec.

26(5), eff. September 1, 2009.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1235, Sec. 26(5), eff. September 1, 2009.

Sec. 65.003. ROTATING BALLOT BOXES NO. 1 AND NO. 2. (a) If the

counting of the ballots is to begin before voting is concluded,

ballot box no. 1 and ballot box no. 2 shall be used on a rotating

basis at the polling place.

(b) When either ballot box no. 1 or no. 2 containing marked

ballots is delivered to the election officers counting the

ballots, the other box shall be immediately made available for

the deposit of marked ballots.

(c) Before the ballot box is positioned for the receipt of

marked ballots, an election officer shall examine it, remove its

contents, and lock the box.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

Sec. 65.004. TALLY LISTS. Three original tally lists shall be

maintained at the polling place to record the number of votes

received for the candidates and for and against the measures

voted on.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

Sec. 65.005. TALLYING THE VOTES. (a) One member of the

counting team shall examine each ballot and clearly announce the

name of each candidate for whom a vote has been received or

whether a vote has been received for or against a measure. The

other members of the counting team shall record the votes on the

tally lists as they are announced.

(b) The counting team shall compare the tally lists periodically

to determine whether discrepancies exist among them. If a

discrepancy is discovered, the ballots shall be recounted and the

necessary corrections shall be made on the lists.

(c) On completing the count, each member of the counting team

assigned to tally votes shall compute the total number of votes

tallied on the list the member has kept and enter the totals on

the tally list. After verifying that the three lists are in

agreement, each counting officer shall sign the list that the

officer has kept.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. Amended

by Acts 1997, 75th Leg., ch. 1078, Sec. 12, eff. Sept. 1, 1997.

Sec. 65.006. REPLACING MEMBER OF COUNTING TEAM. (a) A member

of a counting team may not be replaced after vote tallying is

begun unless each existing discrepancy among the three tally

lists is corrected before the replacement is made.

(b) If a counting officer is replaced on a counting team after

the tallying is begun, the officer to be replaced shall certify

the accuracy of the list the officer has kept, as of the time of

the replacement, by signing the list at that time.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

Sec. 65.007. TALLYING STRAIGHT-PARTY VOTES. (a) In an election

in which a single square is provided on the ballot for casting a

straight-party vote, the tally lists shall contain spaces for

tallying those votes.

(b) Except as provided by Subsection (c) or (d), each

straight-party vote shall be tallied for the party receiving the

vote instead of being tallied for the individual candidates of

the party. The total number of straight-party votes tallied for

each party shall be added to the total votes received for each of

the party nominees individually.

(c) If a ballot indicates a straight-party vote and a vote for

an opponent of one or more of that party's nominees, a vote shall

be counted for the opponent and for each of the party's other

nominees whether or not any of those nominees have received

individual votes.

(d) If a ballot indicates straight-party votes for more than one

party, those votes may not be tallied and a vote shall be counted

for each candidate receiving an individual vote if no other

individual votes are received in that race. If no candidate

receives an individual vote, the portion of the ballot for

offices may not be counted.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. Amended

by Acts 1993, 73rd Leg., ch. 728, Sec. 17, eff. Sept. 1, 1993.

Sec. 65.008. TALLYING WRITE-IN VOTES. (a) In an election in

which write-in voting is permitted, the name of a write-in

candidate shall be entered on the tally list and votes for that

candidate shall be tallied in the same manner as votes for a

candidate whose name appears on the ballot.

(b) A write-in vote may not be counted if a sticker containing a

candidate's name is affixed to the ballot by the voter.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

Sec. 65.009. COUNTING IRREGULARLY MARKED BALLOT. (a) Failure

to mark a ballot in strict conformity with this code does not

invalidate the ballot.

(b) Marking the ballot by marking through the names of

candidates for whom or the statements beside the propositions for

which the voter does not desire to vote does not invalidate the

ballot.

(c) A vote on an office or measure shall be counted if the

voter's intent is clearly ascertainable unless other law

prohibits counting the vote.

(d) The intent of the voter in marking a ballot may be

determined by:

(1) a distinguishing mark adjacent to the name of a candidate or

political party or a voting choice associated with a proposition;

(2) an oval, box, or similar marking clearly drawn around the

name of a candidate or political party or a voting choice

associated with a proposition;

(3) a line drawn through:

(A) the names of all candidates in a manner that indicates a

preference for the candidates not marked if the names of the

candidates not marked do not exceed the number of persons that

may be elected to that office;

(B) the name of each political party except one in a manner that

clearly indicates a preference for the political party not

marked; or

(C) a voting choice associated with a proposition in a manner

that clearly indicates a preference for the other voting choice

associated with the proposition; or

(4) any other evidence that clearly indicates the intent of the

voter in choosing a candidate or political party or deciding on a

proposition.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. Amended

by Acts 2003, 78th Leg., ch. 1315, Sec. 33, eff. Jan. 1, 2004.

Sec. 65.010. BALLOTS NOT COUNTED. (a) The following ballots

may not be counted:

(1) a ballot that is not provided to the voter at the polling

place;

(2) two or more ballots that are folded together in a manner

indicating that they were folded together when deposited in the

ballot box;

(3) a write-in envelope containing a write-in vote without an

attached ballot;

(4) a ballot that has not been deposited in the ballot box used

for the deposit of marked ballots; or

(5) a provisional ballot that is not accepted under Subchapter

B.

(b) If a ballot is unnumbered or the signature of the presiding

judge does not appear on the back of a ballot, the presiding

judge shall examine it to determine whether the ballot is not to

be counted under Subsection (a)(1).

(c) If a ballot is not counted, an election officer shall

indicate on the back of the ballot the reason for not counting

it.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. Amended

by Acts 1993, 73rd Leg., ch. 728, Sec. 18, eff. Sept. 1, 1993;

Acts 1997, 75th Leg., ch. 1078, Sec. 13, eff. Sept. 1, 1997; Acts

2003, 78th Leg., ch. 1315, Sec. 34, eff. Jan. 1, 2004.

Sec. 65.011. OVERVOTING. Except as provided by Section

65.007(c) or (d), if a voter marks the ballot for more candidates

for an office than the number of persons to be elected for that

office, none of the votes may be counted for that office.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. Amended

by Acts 1993, 73rd Leg., ch. 728, Sec. 19, eff. Sept. 1, 1993.

Sec. 65.012. DEPOSITING BALLOT IN BALLOT BOX NO. 3. (a) After

a ballot is counted, it shall be deposited in ballot box no. 3.

(b) A voted ballot that is not counted shall also be deposited

in ballot box no. 3.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

Sec. 65.013. BALLOT REGISTER. (a) Each presiding judge shall

prepare a ballot register as provided by this section.

(b) The register must state:

(1) the total number of ballots received for conducting voting

at the polling place;

(2) the number of defectively printed ballots received;

(3) the number of ballots provided to voters as indicated by the

number of voters on the poll list;

(4) the number of spoiled ballots returned by voters; and

(5) the number of unused ballots that are not accounted for as

defectively printed ballots.

(c) The ballot register shall be prepared as an original and one

copy, and on completing the register, the presiding judge shall

sign each one to certify its accuracy.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

Sec. 65.014. PREPARING THE PRECINCT RETURNS. (a) On completion

of the vote count, the presiding judge shall prepare the returns

of the election for the precinct.

(b) The returns must state:

(1) the total number of voters who voted at the polling place as

indicated by the poll list; and

(2) the total number of votes counted for each candidate and for

and against each measure.

(c) The returns shall be prepared as an original and three

copies, and on completing the returns, the presiding judge shall

sign each one to certify its accuracy.

(d) A presiding judge commits an offense if the judge knowingly

fails:

(1) to include in the precinct returns the applicable

information required by this code; or

(2) to complete the returns in time for them to be delivered by

the deadline prescribed by Section 66.053(c) for delivery of the

precinct election records.

(e) An offense under Subsection (d) is a Class B misdemeanor.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

Sec. 65.015. ANNOUNCING PARTIAL RESULTS. (a) Subject to

Subsection (b), after the polls close and the last voter has

voted, the presiding judge may announce the status of the vote

count from time to time.

(b) The local canvassing authority may require the announcements

or prohibit them.

(c) The announcements shall be made at the entrance to the

polling place.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.

SUBCHAPTER B. VERIFICATION AND COUNTING OF PROVISIONAL BALLOTS

Sec. 65.051. DUTY OF EARLY VOTING BALLOT BOARD. (a) The early

voting ballot board shall verify and count provisional ballots as

provided by this subchapter not later than the seventh day after

the date of an election.

(b) Except as provided by this subchapter, the conduct of the

board is governed by the same procedures as are provided by

Chapter 87.

Added by Acts 2003, 78th Leg., ch. 1315, Sec. 35, eff. Jan. 1,

2004.

Sec. 65.052. DUTY OF VOTER REGISTRAR. The secretary of state

shall prescribe procedures by which the voter registrar of the

county in which a provisional ballot is cast shall provide

assistance to the early voting ballot board in executing its

authority under this subchapter.

Added by Acts 2003, 78th Leg., ch. 1315, Sec. 35, eff. Jan. 1,

2004.

Sec. 65.053. DELIVERY OF PROVISIONAL BALLOTS. The presiding

judge of an election precinct shall deliver in person to the

general custodian of election records the box containing each

envelope containing a provisional ballot that was cast in the

precinct. The secretary of state shall prescribe procedures by

which the early voting ballot board may have access to the

provisional ballots as necessary to implement this subchapter.

Added by Acts 2003, 78th Leg., ch. 1315, Sec. 35, eff. Jan. 1,

2004.

Sec. 65.054. ACCEPTING PROVISIONAL BALLOT. (a) The early

voting ballot board shall examine each affidavit executed under

Section 63.011 and determine whether to accept the provisional

ballot of the voter who executed the affidavit.

(b) A provisional ballot may be accepted only if the board

determines that, from the information in the affidavit or

contained in public records, the person is eligible to vote in

the election and has not previously voted in that election.

(c) If a provisional ballot is accepted, the board shall enter

the voter's name on a list of voters whose provisional ballots

are accepted.

(d) If a provisional ballot is rejected, the board shall

indicate the rejection by marking "rejected" on the envelope

containing the provisional ballot.

Added by Acts 2003, 78th Leg., ch. 1315, Sec. 35, eff. Jan. 1,

2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1078, Sec. 2, eff. September 1, 2007.

Sec. 65.055. DISPOSITION OF ACCEPTED PROVISIONAL BALLOT AND

AFFIDAVIT. (a) The early voting ballot board shall open each

envelope containing an accepted provisional ballot without

defacing the affidavit located on the outside of the envelope and

shall remove the ballot.

(b) The board shall place the ballot in a ballot box containing

all the provisional ballots accepted for voting in the election.

(c) For each accepted provisional ballot, the board shall place

the corresponding envelope on which is printed the voter's

affidavit executed under Section 63.011 in a sealed envelope and

shall deliver the envelope to the general custodian of election

records, to be retained for the period for preserving precinct

election returns.

Added by Acts 2003, 78th Leg., ch. 1315, Sec. 35, eff. Jan. 1,

2004.

Sec. 65.056. DISPOSITION OF REJECTED PROVISIONAL BALLOT. (a)

If the affidavit on the envelope of a rejected provisional ballot

contains the information necessary to enable the person to

register to vote under Chapter 13, the voter registrar shall make

a copy of the affidavit under procedures prescribed by the

secretary of state. The voter registrar shall treat the copy as

an application for registration under Chapter 13.

(b) The early voting ballot board shall place the envelopes

containing rejected provisional ballots in an envelope and shall

seal the envelope. More than one envelope may be used if

necessary.

(c) The envelope for the rejected provisional ballots must

indicate the date and identity of the election, be labeled

"rejected provisional ballots," and be signed by the board's

presiding judge.

(d) A board member shall deliver the envelope containing the

rejected provisional ballots to the general custodian of election

records to be preserved for the period for preserving the

precinct election records. The envelope may not be placed in the

box containing the accepted provisional ballots.

Added by Acts 2003, 78th Leg., ch. 1315, Sec. 35, eff. Jan. 1,

2004.

Sec. 65.057. PROCESSING ACCEPTED PROVISIONAL BALLOTS. (a) The

early voting ballot board shall count accepted provisional

ballots as follows:

(1) for ballots to be counted manually, in the manner provided

by Subchapter D, Chapter 87;

(2) for ballots to be counted by automatic tabulating equipment

at a central counting station, in the manner provided by

Subchapter F, Chapter 87; and

(3) for ballots to be counted by any other means, in the manner

provided by rules adopted by the secretary of state.

(b) On counting the ballots under this section, the board shall

report the results to the local canvassing authority for the

election.

Added by Acts 2003, 78th Leg., ch. 1315, Sec. 35, eff. Jan. 1,

2004.

Sec. 65.058. PRESERVATION OF PROVISIONAL VOTING RECORDS

GENERALLY. The returns of provisional ballots that are accepted,

the accepted ballots, and other provisional voting records shall

be preserved after the election in the same manner as the

corresponding precinct election returns.

Added by Acts 2003, 78th Leg., ch. 1315, Sec. 35, eff. Jan. 1,

2004.

Sec. 65.059. NOTICE TO PROVISIONAL VOTER. The secretary of

state shall prescribe procedures to implement a system to allow a

person who casts a provisional ballot under Section 63.011 to

obtain access free of charge to information on the disposition of

the person's ballot. The system:

(1) must allow the person to determine whether the person's

ballot was counted, and, if the person's ballot was not accepted,

must indicate the reason why;

(2) must provide the information only to the person who cast the

provisional ballot; and

(3) may involve the use of a toll-free telephone number or the

Internet.

Added by Acts 2003, 78th Leg., ch. 1315, Sec. 35, eff. Jan. 1,

2004.

Sec. 65.060. DISCLOSURE OF SOCIAL SECURITY, DRIVER'S LICENSE, OR

PERSONAL IDENTIFICATION NUMBER ON PROVISIONAL BALLOT AFFIDAVIT.

A social security number, Texas driver's license number, or

number of a personal identification card issued by the Department

of Public Safety furnished on a provisional ballot affidavit is

confidential and does not constitute public information for

purposes of Chapter 552, Government Code. The general custodian

of election records shall ensure that a social security number,

Texas driver's license number, or number of a personal

identification card issued by the Department of Public Safety is

excluded from disclosure.

Added by Acts 2005, 79th Leg., Ch.

1107, Sec. 1.13, eff. September 1, 2005.