SECTION 81.38. Administration of Voter Registration Associated with Address Confidentiality Program

(a) Definitions. For purposes of this section, the following words and phrases have the following meanings:

(1) Protected applicant--A certified participant or an eligible spouse or dependent of a certified participant in an address confidentiality program administered by the Office of the Attorney General as authorized by Chapter 56, Subchapter C, Texas Code of Criminal Procedure.

(2) Eligible household member--A person who is living in the same household or dwelling of a certified participant in an address confidentiality program administered by the Office of the Attorney General as authorized by Chapter 56, Texas Code of Criminal Procedure, and who is otherwise eligible to vote using a confidential ballot application, without regard to whether they are related to the certified participant.

(3) Early Voting Clerk--The election officer for a county, and any other local political subdivision, who bears responsibility for the administration of early voting, as specified in Chapter 83, Texas Election Code.

(4) Confidential application for ballot by mail--An application for a confidential ballot by mail completed and signed by a protected applicant. The confidential application for ballot by mail also acts as a temporary voter registration application while the applicant is in the address confidentiality program.

(5) Confidential roster of protected applicants--A list of voters who have voted by means of a confidential ballot by mail.

(6) Substitute post office box address--A post office box address supplied to a certified participant in an address confidentiality program administered by the Office of the Attorney General.

(7) True residence address--The address of the permanent fixed place of habitation of a certified participant in an address confidentiality program administered by the Office of the Attorney General.

(8) Confidential ballot--A ballot marked and voted by a protected applicant or any eligible household member of an applicant.

(b) Process for Completing the Confidential Application for Ballot by Mail. As required by §13.002(e) of the Texas Election Code, a protected applicant is not eligible to vote early by mail unless:

(1) the person submits by personal delivery a Confidential application for ballot by mail to the early voting clerk.

(2) To complete the application process and qualify to receive confidential ballots by mail, a protected applicant must point to a specific location on an official map of the political subdivision if able to do so, or may orally describe the location in sufficient detail to permit identification of the political subdivisions in which the protected applicant resides. The protected applicant must then swear or affirm to the early voting clerk that the protected applicant's place of residence as defined in §1.015 of the Texas Election Code is located within that specifically identified location.

(3) Upon the protected applicant's indication or description of the geographic location of the voter's residence, the early voting clerk must record the jurisdictional codes for every political subdivision in which the protected applicant resides on the protected applicant's confidential application for ballot by mail.

(4) Components of a confidential application for ballot by mail.

(A) A confidential ballot application must include:

(i) the protected applicant's full name and former name, if any;

(ii) the month, day, and year of the applicant's birth;

(iii) a statement that the protected applicant is a United States citizen;

(iv) a statement that the protected applicant is a resident of the county;

(v) a statement that the protected applicant has not been determined by a final judgment of a court exercising probate jurisdiction to be mentally incapacitated or partially incapacitated without the right to vote;

(vi) a statement that the protected applicant has not been finally convicted of a felony, or if convicted, that the protected applicant is eligible to register to vote as authorized by §13.001, Texas Election Code;

(vii) a protected applicant's substitute post office box address (which for uniformity's sake may be pre-printed on an application form);

(viii) the protected applicant's Texas driver's license number, personal identification number, or last four digits of the protected applicant's social security number, or a statement that the protected applicant has not been issued either number; and

(ix) an affidavit of confidentiality stating, "I swear or affirm that I am a certified participant or eligible household member of a certified participant in an address confidentiality program administered by the Texas Attorney General as described in Chapter 56, Texas Code of Criminal Procedure. I understand that by completing this application, it is my responsibility to cancel my voter registration in any county in which I may have been registered to vote, if my voter registration was not previously canceled. It is also my responsibility to cancel any confidential application for ballot by mail that was filed in a county of previous residence. I understand that I am requesting a ballot by mail for every election conducted by the early voting clerk within the boundaries of the territories in which I reside until my address confidential certificate expires (three (3) years after the application is submitted) or your office receives notice that I am no longer in the program or my ballot by mail has been returned as undeliverable, whichever occurs first."

(B) The early voting clerk may not transcribe, copy, or otherwise record a confidential application for a ballot by mail. The application is not a public record, and must be stored in a secure manner that does not compromise the privacy of the information therein.

(C) Upon notification in writing from the Texas Attorney General that a particular protected applicant has not been re-certified for participation in the address confidentiality program or upon return of a protected applicant's ballot by mail as undeliverable, the early voting clerk may not mail additional mail ballots to the protected applicant until receipt of a new application filed by the applicant in person. Any confidential applications shall be preserved for the 22-month period following the expiration or cancellation of the confidential application in the same manner as precinct election records pursuant to §66.058, Texas Election Code. After the preservation period expires, the early voting clerk will destroy the application and any written reference to the jurisdictional codes assigned to the applicant.

(c) Confidential Status of Protected Applicant's Identity. In compliance with §56.88, Texas Code of Criminal Procedure, the true residence address of a protected applicant shall not be solicited and is not required as part of the application process. No record may be made of any accidental revelation of the true residence address (whether implied by the protected applicant's oral description of his or her residence within the county, revealed by the applicant's silent indication of residence location on a county map or as the result of some other disclosure furnished on a confidential application), and the applicant's true residence address is confidential and does not constitute public information for purposes of Chapter 552, Texas Government Code, or §1.012, Texas Election Code.

(d) Restriction on Voting by Personal Appearance. The confidential application for ballot by mail shall constitute the protected applicant's application to register to vote for so long as the protected applicant remains in the program, or until such time as the protected applicant's application for ballot by mail remains valid. A protected applicant shall not be permitted to vote by personal appearance either during early voting or on Election Day in any election for so long as the applicant's application for ballot by mail remains valid.

(e) Local Election Ballots. The county early voting clerk is responsible for providing ballots to the protected applicant for any elections conducted by the county. In order to receive a ballot for an election conducted by a local political subdivision other than a county, the protected applicant must appear in person at the office of the local political subdivision's early voting clerk and submit a confidential application for ballot by mail.

(f) Voting Procedure for Protected Applicant.

(1) On the later of either 45 days before any election conducted in the protected applicant's territory or as soon as ballots are available and ready to be mailed to any by mail, overseas citizen, or military voters, the early voting clerk shall mail a ballot for that election to the protected applicant at the substitute post office box address provided.

(2) The ballot, carrier envelope, and other by mail voting materials supplied to a protected applicant shall be the same as provided to voters who vote by mail due to absence from the county during early voting, except that the county early voting clerk shall number the carrier envelope with the number representing the protected applicant's place on the confidential roster of protected applicants.

(3) The early voting clerk shall also mark and initial the carrier envelope to indicate that the ballot is voted under this administrative rule.

(4) The protected applicant must mark and seal the ballot in the same manner as any voter voting by mail. The protected applicant completes the carrier envelope in the regular manner.

(g) Confidential Roster of Protected Applicants. Upon acceptance of a confidential application for ballot by mail, the early voting clerk shall list the applicant's name on the early voting roster of protected applicants, the date the ballot was mailed out, and the date the voted ballot was received by the early voting clerk. A protected applicant to whom a ballot is provided is not included on the regular early voting roster.

(h) Confidential Roster Not Subject to Disclosure. In compliance with §56.88, Texas Code of Criminal Procedure, the names of protected applicants listed on the confidential roster of protected applicants are not available for public inspection or copying, and are categorized as confidential records that are not subject to public disclosure in reply to requests under the Texas Public Information Act.

(i) Processing Confidential Ballots Voted by Protected Applicants. Upon receipt of a carrier envelope containing a ballot from a protected applicant, the early voting clerk shall make a note on the confidential roster of protected applicants showing the date of receipt. The results shall be processed in accordance with the procedures applicable to processing early voting ballots voted by mail, except that the comparison of the signatures on the confidential ballot application and the carrier envelope shall be conducted by the early voting clerk. The early voting clerk shall record on the confidential roster all ballots accepted for counting after the signature review is completed. If the signature on the carrier envelope and signature on the confidential application are determined not to have been made by the same person, the clerk shall treat the ballot as not timely returned in accordance with §86.011, Texas Election Code and indicate this reason on the confidential roster. The carrier envelopes from voters in the Address Confidentiality Program shall be delivered to the early voting ballot board in an envelope designated as "Envelopes for Confidential Ballots" together with the Early Voting Roster of Protected Voters. The confidential applications for ballot by mail are not delivered to the board but are kept by the county early voting clerk. The early voting ballot board shall verify the carrier envelopes received with the early voting roster of Protected Applicants to ensure that the number of carrier envelopes do not exceed the number of names on the roster. If there is no date of receipt indicated on the roster, there will not be a carrier envelope for that person.

(j) Early Voting Ballot Board Review. Notwithstanding the absence of comparing signatures, the early voting ballot board shall treat as valid all carrier envelopes marked as containing confidential ballots voted pursuant to this section that were received in the envelope for confidential ballots. The carrier envelopes shall be opened and set aside, and the security envelopes containing the voted confidential ballots shall be set aside with all other accepted ballots by mail. The ballots shall be counted with the other accepted ballots by mail. The number of ballots voted and counted under this section would have already been recorded on the Confidential Roster of Protected Applicants pursuant to subsection (i) of this section.

Source Note: The provisions of this §81.38 adopted to be effective September 11, 2008, 33 TexReg 7511