TITLE 1. ADMINISTRATION

PART 4. OFFICE OF THE SECRETARY OF STATE

CHAPTER 81. ELECTIONS

The Office of the Secretary of State ("SOS") adopts revisions to Title 1, Part 4, Chapter 81, Subchapters F and G concerning primary election funding by adopting amendments to Subchapter F, Primary Elections, §§81.101, 81.102, 81.106, 81.107, 81.109, 81.112 - 81.114, 81.118, 81.119, 81.122, 81.123, 81.125 - 81.131, 81.135 and adding new §81.136; and adopting amendments to Subchapter G, Joint Primary Elections, §81.155. The amendments and new rule are adopted without changes to the proposal as published in the September 1, 2017, issue of the Texas Register (42 TexReg 4367). The new and amended rules concern the financing of the 2018 primary elections with state funds, including the determination of necessary and proper expenses relating to the proper conduct of primary elections by party officials and the procedures for requesting reimbursement by the parties for such expenses. In addition, these proposed changes incorporate changes mandated by the 85th Texas Legislature.

The amendments to §81.101 reflect certain changes made by HB 1735, 85th Texas Legislature. Specifically, the proposed amendments require expense reporting by voting system vendors, county chairs, and county elections officers and require direct payment from the SOS to the aforementioned entities. The proposed amendments also describe the reporting payment procedures.

The amendments to §81.107 reflect certain other changes made by HB 1735, 85th Texas Legislature, by extending the deadline to August 31, 2018, for final cost reports and the return of surplus primary funds to the SOS. The amendments also make other stylistic and clarifying changes.

The amendments to §81.109 clarify that no charge may be made for a public building used as a polling place or central counting station if the building is normally open the day of the election, including a charge for personnel, utilities, or other expenses incurred before or after regular business hours. This mimics the language in §43.033, Texas Election Code. The rule also clarifies that the county may not charge for county-owned equipment without statutory authority. Lastly, the amendments reflect language in HB 1735, 85th Texas Legislature, which prohibits signs indicating the location of a primary election or primary runoff election, with certain content, sizes, and formats.

The amendments to §81.112 reflect certain changes made by HB 1735, 85th Texas Legislature, by requiring county chairs to notify the state chair of replacement nominees for a place on the general election ballot in accordance with §145.036 or §202.006, Texas Election Code. The amendments also allow the state chair to comply with the electronic submission requirements of §172.029 of the Texas Election Code on behalf of the county chair in instances where the county chair is unable or unwilling to comply with those requirements. In addition to minor stylistic changes, the amendments to §81.112 also specify procedures for the submission of the electronic affidavit associated with the final list of candidates and results in §§172.029, 172.117, and 172.122 of the Texas Election Code.

The amendment to §81.114 clarifies that a discounted expenditure, such as a reduced rate for leasing space, does not exempt the cost from the conflict of interest rule.

The amendments to §81.119 clarify what costs are attributable to the county chair's compensation authorized under §173.004, Texas Election Code and the county election officer's not-to-exceed ten (10) percent, but no less than $75.00, "general supervision fee" authorized under §31.100, Texas Election Code.

The amendments to §81.122, in addition to a minor stylistic change, clarify that the county chair is responsible for following all applicable federal and state tax laws for all workers paid with primary funds, including election judges and clerks.

The amendment to §81.123 removes election law books and miscellaneous expenses as categories under administrative costs. The elimination of subsection (i) ensures primary funds are maximized for costs directly related to the election rather than administrative costs.

The amendment to §81.126 codifies the standing practice of not reimbursing for meals at the county chair election law seminar hosted by the SOS.

The amendment to §81.128 clarifies that personal landlines and personal cellular phone charges are not reimbursable with primary funds.

The amendments to §81.129 clarify that discounted office space does not exempt the expense from the conflict of interest rule (§81.114, Conflicts of Interest). The amendments also clarify that utilities are subject to a 30% maximum reimbursement if the party maintains the lease unrelated to the conduct of the primary. In addition, the amendments provide that if the party maintains a lease unrelated to the primary, the SOS will not reimburse the party for a second lease without prior approval from the SOS.

The amendments to §81.131 reflect, in part, certain changes made by HB 1735, 85th Texas Legislature. Specifically, the amendments require expense reporting to the SOS by the county election officer pursuant to a primary election service contract who will then receive direct payment from the SOS. They also stipulate that the not-to-exceed ten (10) percent, but no less than $75.00, "general supervision fee" authorized under §31.100, Texas Election Code, will be applied to those costs, except in instances in which the county election officer subcontracts with a third party vendor that assesses a surcharge or administrative fee. The amendments also clarify that the county election officer may not charge a flat fee for a service unless authorized by statute; however, charges may be set at a rate of up to ten (10) percent of the annual license and maintenance fees for the software used to create the ballot style and program the electronic voting equipment.

In addition to minor clarifying changes, the amendments to §81.135 reflect changes made by HB 1735, 85th Texas Legislature, to allow a state party to contract with the county election officer in certain circumstances to conduct a primary election that is required for the nomination of a political party for a multicounty district office (this is also already permitted for statewide and presidential primary elections).

New §81.136 reflects changes made by HB 1735, 85th Texas Legislature. Specifically, it allows the state chair to fulfill certain administrative duties on behalf of the county chair, including accepting funds, submitting reports, and conducting the ballot drawing in certain circumstances.

The amendments to §81.155 reflect the August 31 submission deadline imposed by HB 1735, 85th Texas Legislature, and modify the language such that it is not limited to the county chair, and thus may also apply to the county election officer.

The amendments to §§81.102, 81.106, 81.113, 81.118, 81.125, 81.127, and 81.130 make stylistic or minor clarifying changes.

The new and amended sections are necessary for the proper and efficient conduct of the 2018 primary elections. It is in the public interest to establish adequate procedures to ensure most efficient use of state funding.

The SOS received one comment from Diana Hoover, Chair of the Lipscomb County Republican Party, in relation to the proposed revisions, in which Ms. Hoover suggested that training time for primary election workers be reimbursable. The SOS declines to adopt this change to the rules, as reimbursing for such time would be cost-prohibitive given the amount appropriated by the legislature for the holding of primary elections.

SUBCHAPTER F. PRIMARY ELECTIONS

1 TAC §§81.101, 81.102, 81.106, 81.107, 81.109, 81.112 - 81.114, 81.118, 81.119, 81.122, 81.123, 81.125 - 81.131, 81.135, 81.136

STATUTORY AUTHORITY

The amendments and new rule are adopted under the Texas Election Code, §31.003, which provides the SOS with the authority to obtain and maintain uniformity in the application, interpretation, and operation of provisions under the Texas Election Code and other election laws. It also allows the SOS in performing such duties to prepare detailed and comprehensive written directives and instructions based on such laws. The rule changes are also adopted under Texas Election Code, §173.006, which authorizes the SOS to adopt rules consistent with the Texas Election Code that reduce the cost of the primary elections or facilitate the holding of the elections within the amount appropriated by the legislature for that purpose. Sections 172.117, 172.122, 172.127, 172.128, 172.130, and 173.0833 (where relevant, as amended by HB 1735, 85th Texas Legislature) of the Texas Election Code, also provide the SOS with rulemaking authority by their terms.

Cross-reference to statute: No other sections are affected by the adopted rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 9, 2017.

TRD-201704059

Lindsey Aston

General Counsel

Office of the Secretary of State

Effective date: October 29, 2017

Proposal publication date: September 1, 2017

For further information, please call: (512) 463-5650


SUBCHAPTER G. JOINT PRIMARY ELECTIONS

1 TAC §81.155

STATUTORY AUTHORITY

The amendments are adopted under the Texas Election Code, §31.003, which provides the SOS with the authority to obtain and maintain uniformity in the application, interpretation, and operation of provisions under the Texas Election Code and other election laws. It also allows the SOS in performing such duties to prepare detailed and comprehensive written directives and instructions based on such laws. The rule changes are also adopted under Texas Election Code, §173.006, which authorizes the SOS to adopt rules consistent with the Texas Election Code that reduce the cost of the primary elections or facilitate the holding of the elections within the amount appropriated by the legislature for that purpose. Sections 172.117, 172.122, 172.127, 172.128, 172.130, and 173.0833 (where relevant, as amended by HB 1735, 85th Texas Legislature) of the Texas Election Code, also provide the SOS with rulemaking authority by their terms.

Cross-reference to statute: No other sections are affected by the adopted rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 9, 2017.

TRD-201704060

Lindsey Aston

General Counsel

Office of the Secretary of State

Effective date: October 29, 2017

Proposal publication date: September 1, 2017

For further information, please call: (512) 463-5650