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Elections and Voter Information

Voter Information

Rule § 81.40

The Office of the Secretary of State, Elections Division, proposes new § 81.40, concerning acceptance of a Federal Postcard Application (FPCA) form as an application for permanent voter registration, pursuant to the passage of House Bill 536, 81st Legislature, 2009; and the authorization of an electronic transmission of an image for transmission of the FPCA, pursuant to the passage of House Bill 551, 81st Legislature, 2009.

Ann McGeehan, Director of Elections, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amended rule.

Ms. McGeehan has determined that for each year of the first five-year period the proposed amended rule is in effect, the public will benefit from having detailed procedures to guide election officials in the use of the Federal Postcard Application (FPCA) for voters in the military and for non-military overseas voters.

Ms. McGeehan also has determined that for the first five-year period the amended rule is in effect, there will be no effect on small businesses or micro-businesses.

Comments on the proposal may be submitted to the Office of the Secretary of State, Ann McGeehan, Director of Elections, P.O. Box 12060, Austin, Texas 78711.

The rule is proposed under the Texas Election Code, § 13.002, which provides the Office of the Secretary of State with the authority to prescribe rules to implement the amendments to §§ 13.002, 101.006, Texas Election Code; and §101.004, Texas Election Code, which provides the Office of the Secretary of State with the authority to prescribe rules to implement the amendments to §101.004, Texas Election Code.

Statutory Authority: Election Code § 13.002, 101.004

Election Code, Chapters 13 and 101 are affected by this rule.
Request for Comments.
Interested persons may submit written comments on the proposed rule to the Elections Division, Office of the Texas Secretary of State, P.O. Box 12060, Austin, Texas 78711-2060.

Comments may also be sent via E-mail to: elections@sos.texas.gov.

For comments submitted electronically, please include "Proposed Adoption of Rule 81.40" in the subject line. Comments must be received no later than thirty (30) days from the date of publication of the proposal in the Texas Register. Comments should be organized in a manner consistent with the organization of the proposed rule. Questions concerning the proposed rule may be directed to Elections Division, Office of the Texas Secretary of State, at 512-463-5650.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on _________.

John Sepehri

General Counsel

Texas Secretary of State

Earliest possible date of adoption: ______________

§ 81.40 Federal Postcard Application as Application for Permanent Registration and FPCA Eligibility for Electronic Transmission of Image

  1. Eligibility. Pursuant to Section 101.001 of the Texas Election Code, a person is eligible to submit a Federal Postcard Application (an “FPCA”) if:
    1. the person is qualified to vote in this state or, if not registered to vote in this state, would be qualified if registered; and
    2. the person is:
      1. a member of the armed forces of the United States, or the spouse or a dependent of a member;
      2. a member of the merchant marine of the United States, or the spouse or a dependent of a member; or
      3. domiciled in this state but temporarily living outside the territorial limits of the United States and the District of Columbia who is qualified to submit an FPCA.
  2. General Conduct of Voting. The FPCA serves simultaneously (1) as a request for a mail ballot from the early voting clerk for a period of two federal elections and (2) as a request for permanent registration in the county in which the voter resides, unless the voter states that he or she resides indefinitely outside the United States.
  3. Action on original FPCA by early voting clerk.
    1. The FPCA must be submitted to the early voting clerk for the election who serves the election precinct of the applicant’s residence. The FPCA may be submitted by mail, telephonic facsimile (fax), or an electronic transmission of the image to an authorized recipient (for example, scanning and attaching to an email) to the address of the early voting clerk.
    2. The early voting clerk shall make a notation of the name of the office and date and time of receipt, then make a complete copy (front and back, and any accompanying envelopes or fax cover sheets) of the FPCA to retain for mail balloting purposes. The early voting clerk shall then forward the original FPCA (and any accompanying envelopes or fax cover sheets) to the county voter registrar for the county, in which the applicant’s Texas residence address is located, as soon as practicable, but no later than within five days, so that the FPCA may be processed as an application for permanent voter registration, even if the FPCA is insufficient as a mail ballot request. This deadline does not supersede the deadlines to mail out ballots pursuant to Section 86.004, Election Code. The early voting clerk’s copy functions as the official FPCA for all mail balloting purposes for elections, including purposes necessary during the early voting ballot board meeting, and the copy shall be maintained as an election record for 22 months after the last election in which the FPCA is processed for mail balloting purposes, pursuant to Section 66.058, Election Code. Once the early voting clerk makes a copy for early voting purposes, that copy is considered the “original” for purposes of public information requests made of the early voting clerk, including the rules concerning originals at Section 86.014, Election Code.
    3. The authorized recipient will notate the name of the office receiving the FPCA and the date and time of receipt on the face of the FPCA, before taking any action on the original FPCA. Failure to make these notations will not affect the overall validity of the FPCA, even if the calculation of the date of receipt is affected.
    4. Processing defective FPCAs.
      1. Incorrect territory. If the Texas residence address provided on the FPCA indicates an address outside the early voting clerk’s territory, the clerk shall make a copy for his or her records, and immediately forward the original FPCA to the correct jurisdiction’s early voting clerk not later than the day after it is received, pursuant to 101.004(d), Election Code. The (incorrect) early voting clerk shall send the voter a notice of rejection on behalf of his or her jurisdiction pursuant to Section 86.001(f), Election Code, and include a statement that the FPCA has been forwarded to the correct early voting clerk. If the early voting clerk cannot determine the correct jurisdiction based on the residence address, the early voting clerk shall seek assistance from the office of the county voter registrar or the secretary of state. Regardless of whether the early voting clerk’s territory is incorrect, the early voting clerk shall forward a courtesy copy of the FPCA to the voter registrar for that clerk’s territory (so that the voter registrar may provide a second review of the voter’s address).
      2. Mail balloting errors other than voter registration. For any other voter errors resulting in an insufficient mail ballot request, the early voting clerk shall send the voter a notice of rejection pursuant to Section 86.001, Election Code, even though the FPCA is still forwarded to the voter registrar for purposes of an application for permanent voter registration.
  4. Action on FPCA by county voter registrar.
    1. Upon receipt of the original FPCA from the early voting clerk, the county voter registrar shall immediately review the FPCA to see if the voter’s permanent residence address places the voter in their Texas county. The voter registrar shall process the FPCA in the same manner as a regular voter registration application. For any errors that make the FPCA insufficient for voter registration, the voter registrar shall send the voter a notice of rejection or notice of incomplete, whichever is appropriate in accordance to Section 13.073, Election Code. The original shall be kept by the county voter registrar for the retention period applicable to applications for permanent voter registration.
    2. If the applicant states on the FPCA that he or she resides outside the United States indefinitely, the voter registrar shall not treat any such FPCA (which was incorrectly forwarded to the registrar) as an application for permanent voter registration and shall notify the early voting clerk that the FPCA was forwarded to the voter registration office in error.
    3. If the FPCA was sent to the wrong Texas county, the registrar shall make a notation of the date received by his or her office, notify immediately the early voting clerk in their county of the error so that a ballot is not sent for their county, then immediately forward the original FPCA to the correct early voting clerk so that the clerk can process the FPCA in accordance with Section (c) above (unless the early voting clerk has already determined that his or her county is incorrect in accordance with Section (c)(4)(A) above).
    4. Request for Return of Original FPCA. A voter registrar who records voter registration data for storage purposes on optical disk or other computer storage medium, shall, upon request of the early voting clerk, deliver the original FPCA to the early voting clerk before destroying the original FPCA.
    5. If the voter registrar receives a courtesy copy of an FPCA from an early voting clerk (based on initial determination of incorrect territory by the clerk), and the voter registrar has information that confirms that their county is the correct county, the voter registrar shall contact the original early voting clerk immediately to begin the processing of the FPCA in section (c). The early voting clerk shall notify the early voting clerk to whom the FPCA was forwarded of the mistake.
  5. Timeliness of FPCA for mail ballot request purposes.
    1. The FPCA is considered received for mail ballot request purposes on the date of actual receipt by the early voting clerk, pursuant to Sections 101.002, 101.004, 84.007(d), Election Code.
    2. If the FPCA is first received by the county voter registrar’s office, the FPCA is considered received as a request for mail ballot for purposes of an election when the county voter registrar receives the FPCA on behalf of the county.
    3. Pursuant to Section 101.004(d), Election Code, a timely FPCA addressed to the wrong early voting clerk shall be forwarded to the correct early voting clerk not later than the day after it is received by the wrong early voting clerk.
    4. Pursuant to Section 101.004, Election Code, if an otherwise compliant FPCA is postmarked, or received without postmark within the prescribed dates, the applicant, who (1) is not otherwise permanently registered, and (2) has not stated that he or she is residing outside the United States indefinitely, will receive a full ballot based on the temporary registration status obtained by using the FPCA; otherwise, the applicant will only receive a “federal ballot” (federal offices only) pursuant to Section 101.004(f), Election Code.  If the applicant states that he or she is residing outside the United States indefinitely, the early voting clerk does not forward the FPCA to the voter registrar since the FPCA will not constitute a permanent voter registration application, and the FPCA will be treated as a temporary registration and request for mail ballot for a period of two federal elections in accordance with Sections 101.005 and 101.006(a), Election Code.
    5. The statutes governing the method of transmission of a mail ballot request shall govern the method of transmission of an FPCA generally as provided by Section 101.002, and additionally as provided by Section 101.004, as amended.
      1. A scanned FPCA may be submitted to an early voting clerk whose office has e-mail available via an electronic transmission of an image, pursuant to Section 101.004.  The date of submission of the scanned FPCA is determined by the date and time the electronic transmission of an image (e.g., e-mail) was sent by the applicant.
      2. If the FPCA is submitted by telephonic facsimile (fax) pursuant to Section 84.007, Election Code, the date of submission is determined by the date and time of receipt as reflected by the time of receipt on the faxed document (unless the authorized recipient can verify that the fax machine is in error and the receipt is personally witnessed as being timely).
  6. Timeliness of FPCA for voter registration purposes.
    1. The FPCA is considered submitted for purposes of an application for permanent voter registration for any FPCA received by an authorized recipient on or after September 1, 2009, pursuant to Section 13.002, as amended by House Bill 536 (2009).
    2. The FPCA is considered submitted for purposes of an application for permanent voter registration based on the “date of submission” to the first authorized recipient (e.g., an early voting clerk or county voter registrar), regardless of whether the FPCA was received in the correct county, pursuant to Section 13.072.
    3. The date of submission of the FPCA for purposes of an application for permanent voter registration is defined as:
      1. the date of the postmark, if any, in accordance with Section 13.143(d), Election Code; or
      2. indicia of the time and date the voter deposited the FPCA with the common or contract carrier, or
      3. if the FPCA submitted by mail or common or contract carrier has no postmark or other indicia of the time and date the voter deposited the FPCA with the common or contract carrier, the date of submission is then determined by the date of actual receipt by the first authorized recipient; or
      4. if the FPCA is submitted by electronic transmission of an image (e.g., e-mail), the date of submission of the scanned signed FPCA is determined by the date and time the electronic transmission of an image (e.g., e-mail) was sent by the applicant; or
      5. if the FPCA is submitted by telefacsimile (fax), the date of receipt as reflected by the time of receipt on the faxed document (unless the authorized recipient can verify that the fax machine is in error and the receipt is personally witnessed as being timely).
    4. This rule does not authorize the e-mailing, faxing, or other electronic transmission of an image of a regular (non-FPCA) voter registration application.
  7. Jury Lists.  Voters whose temporary registrations are based on an FPCA will not form the basis for the jury lists.  Voters whose permanent registrations are based on an FPCA will not form the basis for the jury lists.  When an FPCA voter later renews or otherwise creates a registration status based on a regular voter registration application, that registration status will be the basis for the jury lists.
  8. Petition Signatures.  The FPCA voters with temporary or permanent registration status are not included in the number of registered voters of a territory when calculating the number of signatures needed for a petition.  This does not bar an FPCA voter with permanent registration status (who is otherwise eligible to sign a petition) from signing a petition.
  9. Definitions
    1. ABBM – Application for Ballot by Mail.
    2. “Authorized recipient”— an early voting clerk or county voter registrar.  A volunteer deputy registrar is not an authorized recipient of a Federal Postcard Application.
    3. Early voting clerk – the early voting clerk for a county election or a non-county election in which the county early voting clerk is the early voting clerk by joint election agreement or election services contract; or, the early voting clerk for a local political subdivision election (Example:  city, school district, water district).
    4. “e-mail” – for purposes of these rules refers to a signed hardcopy FPCA which is scanned and attached to an e-mail.
    5. FPCA – Federal Postcard Application.
    6. “permanent voter registration” – the registration status equivalent to a voter who applies with a regular application for voter registration.
    7. “temporary voter registration” – the type or types of registration status based on the FPCA alone under the Texas Election Code and Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), before the permanent voter registration is effective.