|To:||All Cities, School Districts, and other Political Subdivisions|
|From:||Ann McGeehan, Director of Elections|
|Date:||April 14, 2011|
|RE:||Post-Election Procedures, Qualifying for Office|
I. Overview and Quick Reference
The following is a list of forms you will need for events after the May 14, 2011 elections. Samples of these forms can be accessed from our website or, you may request them from our office.
- Appointment of Representative Form
- Recount Request Form
- Statement of Elected Officer Form
- Certificate of Election Form
- Oath of Office Form
B. Brief Reminders:
- Statements of Elected Officer are filed locally, NOT with the Secretary of State’s office.
- Canvass must be conducted between Tuesday, May 17, 2011 and Wednesday, May 25, 2011.*
* Note: The canvass may not be conducted until the ballot board has: 1) verified and counted all provisional ballots, if a provisional ballot has been cast in the election, AND 2) counted all timely received ballots cast from addresses outside the United States, if a ballot by mail was provided to a person outside the United States. (Note: Thursday, May 19, 2011 is the last day to receive carrier envelopes placed in the mail by 7:00 p.m. on Election Day from voters who are voting outside the United States.) Tex. Elec. Code Ann. §§ 67.003 & 86.007(d)(3) (2010).
II. Qualifying for Office
A. Canvass Meeting
The canvass must be conducted at an open meeting of the governing body between Tuesday, May 17, 2011 and Wednesday, May 25, 2011. Pursuant to the Texas Election Code, only two officers are needed for a quorum for a canvassing meeting. Tex. Elec. Code Ann. § 67.004(a).
The canvassing authority shall prepare a tabulation stating the following:
- Each candidate
- Total number of votes received in each precinct
- Sum of precinct totals tabulated
- Votes FOR and AGAINST each measure
- Total number of votes received in each precinct
- Sum of precinct totals tabulated
- Total number of voters who cast a ballot for a candidate or for or against a measure in the election
The tabulation may be prepared as a separate document or may be entered directly into the local election register maintained for the authority. The authority shall either attach or include as part of the tabulation the report of early voting votes by precinct. The early voting report is to be delivered to the local canvassing authority no later than the time of the local canvass. Tex. Elec. Code Ann. § 87.1231. For more details, see the procedure for local canvass at Section 67.004 of the Texas Election Code.
B. Certificate of Election, Statement of Elected Officer, and Oath of Office
Questions often arise about the order of events following the election. We recommend that post-election procedures occur in the following sequence:
- Election is canvassed at an open meeting.
- Certificate of Election is issued to newly-elected officers.
- Statement of Officer is completed (to be filed locally).
- Newly-elected officers may take the Oath of Office.
- After taking the Oath of Office, newly-sworn officers may assume the duties of their office.*
(Tex. Const., Article XVI, Section 1; Tex. Elec. Code Ann. §§ 67.004 – 67.006, 67.016).
* Note: In some political subdivisions, the newly-elected officers may not assume the duties of office until a certain date. For example, officers in a Type A general law city may not assume office until Friday, May 20, 2011. Tex. Local Gov’t Code Ann. § 22.036. Also, your source law might require a bond. For example, Texas Local Government Code Section 22.072 states that Type A cities have authority to require a bond.
Before an elected (or appointed) officer may assume the duties of the office, the officer must first file a Statement of Elected or Appointed Officer with the official records of the governing body. Tex. Const., Art. XVI, § 1.
We recommend that the presiding officer issue the Certificate of Election at the canvass. The presiding officer of the canvassing authority prepares the Certificate of Election. Tex. Elec. Code Ann. § 67.016. The form we provide is only a sample; many entities like to create their own.
If a recount request has been filed, this does not halt the canvass. However, the canvassing authority must make a note on the canvass that a recount has been requested. Filing a recount petition delays the issuance of a certificate of election and qualification for the office involved in the recount pending completion of recount. Tex. Elec. Code Ann. §§ 212.033, 212.0331. See our Recount advisory for deadlines; see our Recount outline for more details.
C. Who can Administer an Oath of Office
The Oath of Office must be administered by someone authorized to administer an oath under Texas law. The most commonly-used person to administer oaths is a notary public. Additionally, Section 602.002 of the Texas Government Code authorizes all city secretaries to administer oaths for matters relating to city business. In a Type A general law city, the mayor may also administer the oath. Tex. Local Gov’t Code Ann. § 22.042. Other officials who may administer an oath include: a judge, retired judge, senior judge, clerk, or commissioner of a court of record; a justice of the peace or a clerk of a justice court; a legislator or retired legislator. (See Chapter 602, Government Code, for the complete list.)
D. Oaths and Water Districts, Chapters 36 & 49, Water Code
Please note that special procedures apply to a newly-elected director of a water district governed by Chapters 36 or 49 of the Texas Water Code. A duplicate original of the oath (but not the statement of elected/appointed officer) shall also be filed with the Secretary of State within 10 days after its execution and need not be filed before the new director begins to perform the duties of office. Tex. Water Code Ann. §§ 36.055, 49.055. As this is an odd-numbered year, we are aware that most water districts governed by the chapter 49 election schedule are not conducting a general election; however, we include the procedure for the water districts who are (especially water districts governed by chapter 36), and for future reference.
III. Other Procedures and Questions
A. Cancellation Procedures
1. Unopposed Candidates
Many entities have used the “cancellation” procedures in Sections 2.051-2.053 of the Texas Election Code to declare unopposed candidates “elected” to office. The Statement of Elected Officer must be completed and filed at any time after the meeting at which the candidates were declared elected. The remaining steps of the Certificate of Election and the Oath of Office, however, must be performed after Election Day in the usual manner. On the Certificate of Election, instead of the election date language, substitute “John Doe was duly elected for purposes of the May 14, 2011 election, pursuant to the [order or ordinance] issued on [date], cancelling the election that was scheduled to be held on May 14, 2011” or similar language. Tex. Elec. Code Ann. § 67.016. Please note that cancellation forms can now be obtained from our office or by accessing our web site.
2. What if Nobody Filed?
What if nobody filed for an office? If no one filed for an office, (and your jurisdiction does not have open write-ins), the appropriate time to declare the official result ─ that no one filed and that no one won ─ is at the canvass. Even if the election was cancelled due to uncontested races, a vacancy in the office for which no one filed is declared at the meeting held after Election Day. The vacancy is then filled by the vacancy-filling procedures for that entity. See Tex. Att'y Gen. Op. No. O-497 (1939); Sec'y State Op. No. JWF-36 (1984). Two officers constitute a quorum for canvassing the election results and declaring any resulting vacancy. To fill the vacancy, however, you will need to meet the regular quorum requirements.
B. Tie votes, Runoffs
A runoff election is required if the political subdivision requires majority vote (rather than plurality) and no candidate has received over half the total votes (e.g., 50.3% is more than half). The general rule is that runoff elections are ordered for a date between 20 and 45 days after the final canvass. See Section 2.025 of the Texas Election Code for more details.
Tie votes for officers are governed by Section 2.002 of the Texas Election Code. In an election requiring a plurality vote, if two or more candidates for the same office tie for the number of votes required to be elected, a second election to fill the office shall be held. However, before the second election is ordered, the tying candidates may agree to cast lots or withdraw to resolve the tie. Tex. Elec. Code Ann. § 2.002. If the tie vote is not resolved by a withdrawal or lot drawing, an automatic recount shall be conducted in accordance with Chapter 216 before the second election is held. If the automatic recount resolves the tie, the second election is not held. If the tie is unresolved following the automatic recount, the authority responsible for ordering the first election shall then order the second election (not later than the fifth day after the date the automatic recount is completed or the final canvass following the automatic recount is completed). The second election shall not be held earlier than the 20th day or later than the 30th day after the date the automatic recount is completed or the final canvass following the automatic recount is completed, if applicable. For more details, see Section 2.002 and Chapter 216.
A tie vote in a runoff election triggers an automatic recount under Chapter 216. If the result is still tied, the is election resolved by lot Section 2.028.
A tie vote in an election on a measure (i.e., a proposition election with for-against votes) means the measure failed, because there were not more votes For than Against. There is no automatic recount procedure, since Chapter 216, which regulates automatic recounts, only applies to candidate elections.
C. Note about Joint Elections and Contracts For Election Services
The procedures above outline the general rules; however, many entities may be holding joint elections in May (and/or have some type of contract for various election services with the county). You should make every effort to be sure that everyone involved knows when, where, and by whom the various election records are to be prepared, delivered, and stored.
We appreciate your reviewing these materials. If you have any questions, please contact the Elections Division toll-free at 1-800-252-VOTE(8683).
See Election Advisory No. 2011-03 – Recount Deadlines for May 14, 2011 General Election.
c: County Clerks/Elections Administrators (via email)