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Election Advisory No. 2021-16

To: All Cities, School Districts, and Other Political Subdivisions
From: Keith Ingram, Director of Elections
Keith Ingram's signature
Date: November 2, 2021

RE:

Post-Election Procedures and Qualifying for Office for the November 2, 2021 Uniform Election

I. Overiew And Quick Reference

All statutory references in this advisory are to the Texas Election Code (“the Code”), unless otherwise indicated.

  1. Forms

    The following is a list of forms relevant to events after the November 2, 2021 elections. Samples of these forms can be accessed from our website:

  2. Brief Reminders

    • Statements of Elected Officer are filed locally, NOT with the Secretary of State’s office.
    • Canvass must be conducted between Friday, November 5, 2021 and Monday, November 15, 2021. Since the last day falls on Saturday, November 13, 2021, the deadline is extended to Monday, November 15,2021. (Tex. Elec. Code §§ 1.006, 67.003).*

    *Note: The canvass may not be conducted until the early voting 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: Monday, November 8, 2021 is the last day to receive carrier envelopes placed in the mail and postmarked by 7:00 p.m. on election day from voters who are voting outside the United States. The deadline for non-military voters falls on Sunday, November 7, 2021; therefore, under Section 1.006 of the Election Code, this deadline moves forward to Monday, November 8, 2021. Friday, November 12, 2021 (9th day after election day) is the last day for the early voting ballot board to convene to (1) qualify and count any late ballots that were submitted by any military or overseas voters and received by Monday, November 8, 2021; and (2) verify and count provisional ballots. Because the last day falls on Thursday, November 11, 2021 (Veterans Day), the deadline is extended to Friday, November 12, 2021.) (Tex. Elec. Code §§ 65.051, 67.003, 86.007(d)(3), 87.125(c), 101.057). See our most current calendar for details: Advisory No. 2021-08 - November 2, 2021 Election Law Calendar.

II.  Qualifying For Office

  1. Canvass Meeting

    The canvass must be conducted at an open meeting of the governing body between Friday, November 5, 2021 and Monday, November 15, 2021. Because the last day falls on Saturday, November 13, 2021, the deadline is extended to Monday, November 15, 2021. (Tex. Elec. Code §§ 1.006, 67.003). Pursuant to the Code, only two officers are needed for a quorum for a canvassing meeting. (Tex. Elec. Code § 67.004(a)).

    The canvassing authority shall prepare a tabulation stating the following:
    1. Each candidate
      1. Total number of votes received in each precinct
      2. Sum of precinct totals tabulated
    2. Votes FOR and AGAINST each measure
      1. Total number of votes received in each precinct
      2. Sum of precinct totals tabulated
    3. Total number of voters in each precinct who cast a ballot for a candidate or for or against a measure in the election

    (Tex. Elec. Code § 67.004(b), (b-1)).

    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 § 87.1231). For more details, see the procedure for local canvass in Section 67.004 of the Code. The election register shall be preserved as a permanent record.  (Tex. Elec. Code § 67.006).

  2. 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.*
    • Report electronic returns to Secretary of State.

    (Tex. Const. Art. XVI, § 1; Tex. Elec. Code §§ 67.004 – 67.006, 67.016, 67.017).

    *Note: In some political subdivisions, the newly-elected officers may not assume the duties of office until a certain date. For example, Section 22.006 of the Texas Local Government Code states that a newly-elected municipal officer of a Type A city may exercise the duties of office beginning on the fifth day after the date of the election, excluding Sundays. However, no newly elected official may qualify for office before the official canvass of the election has been conducted (or would have been conducted, in the event of a cancelled election). Section 22.036 of the Texas Local Government Code further requires that the newly-elected governing body of the municipality “meet at the usual meeting place and shall be installed.” See our Advisory No. 2021-08 - November 2, 2021 Election Law Calendar.

    Also, your source law might require a bond. For example, Section 22.072 of the Texas Local Government Code 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 for 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 § 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 §§ 212.033, 212.0331).  For additional information on Recounts, see Election Advisory No. 2021-17 – Recount Deadlines for the November 2, 2021 Elections for Cities, School Districts, and Other Political Subdivisions, and the Recount Outline.

  3. 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. Loc. Gov’t Code § 22.042). Other officials who may administer an oath include: a judge, retired judge, senior judge, clerk of a court of record, justice of the peace or clerk of a justice court, legislator or retired legislator. (See Chapter 602 of the Texas Government Code for the complete list.) 

  4. Oaths and Water Districts, Chapters 36 & 49, Texas 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 §§ 36.055, 49.055).

III. Other Procedures And Questions

  1. Cancellation Procedures

    Unopposed Candidates

    Many entities have used the “cancellation” procedures in Sections 2.051-2.053 of the 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; that is, not before the date the official canvass would normally be conducted. On the Certificate of Election, instead of the election date language, substitute “John Doe was duly elected for purposes of the November 2, 2021 election, pursuant to the [order or ordinance] issued on [date], cancelling the election that was scheduled to be held on November 2, 2021” or similar language. (Tex. Elec. Code § 67.016). Please note that cancellation forms can be obtained from our office or by accessing our web site.

    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.

  2. 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., 50.1% is more than half). (Tex. Elec. Code § 2.021). The general rule is that runoff elections are ordered for a date between 20 and 45 days after the final canvass. (Tex. Elec. Code § 2.025).

    We encourage political subdivisions to confer with their county election officer before setting a runoff election date if they are contracting with the county, or expect to be leasing county voting equipment, in order to ensure the availability of that equipment.

    Tie votes for officers (based on official canvassed returns) are governed by Section 2.002 of the Code. In an election requiring a plurality vote (i.e., the person with the most votes wins, even if it is not more than 50% of the votes cast), 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.

    The order of events has been amended by House Bill 3107 (2021). Under prior and current law, the candidates may choose to withdraw or cast lots before the automatic recount is held. Under amended law, if a recount does not resolve a tie, the tied candidates may (1) cast lots not later than the day before the date the authority must order the second election; or (2) withdraw from the election not later than 5 p.m. of the day after the date the automatic recount is held. In sum, there is now a clear second opportunity to withdraw or cast lots before the second election is held. (Tex. Elec. Code § 2.002).

    However, before the second election is ordered, the tying candidates may agree to cast lots or withdraw to resolve the tie. (Tex. Elec. Code § 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 of the Code before the second election is held. If the automatic recount resolves the tie, the second election is not held.

    If the tie is still unresolved following these procedures, 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 45th day after the date the automatic recount is completed or the final canvass following the automatic recount is completed, if applicable. (House Bill 3107 (2021) changed the last day to hold the second election from the 30th day to the 45th day.)  For more details, see Tex. Elec. Code § 2.002 and Chapter 216.

    A tie vote in a runoff election (based on official canvassed returns) triggers an automatic recount under Chapter 216 of the Code. The procedure has been amended by House Bill 3107 (2021). In a tie vote in a runoff election, if a candidate withdraws before the automatic recount is conducted, the remaining candidate is the winner and the automatic recount does not need to occur. If a withdrawal is received by 5 p.m. the day after the date of the automatic recount is conducted, the remaining candidate is the winner. If the automatic recount proceeds, and the result is still tied, the election is resolved by the casting of lots under Section 2.028 of the Code.

    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 of the Code, which regulates automatic recounts, only applies to candidate elections.

  3. 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 November (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.

  4. File Returns with Secretary of State

    Counties are required to file electronic precinct-by-precinct returns with the Secretary of State’s Elections Division not later than Thursday, December 2, 2021 (the 30th day after election day). (Tex. Elec. Code § 67.017). Local political subdivisions, other than a county, do not have to file electronic precinct-by-precinct returns with the Secretary of State’s office. (Tex. Elec. Code § 67.017).

    For more information and log-in guidance, see Precinct by Precinct Reporting under your page on the “Conducting Your Elections” part of our website. The source law for certain elections (such as a sales tax election) might require reporting returns to an agency like the comptroller.

    CC: County Clerks/Elections Administrators

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