1. (a) Polling Place Preparation.

   1. (1) The Election Judge shall set aside a sufficient number of regular ballots from the supply of official ballots and write or stamp "provisional" on the back of the ballot (referred to below as "provisional ballots").
   2. (2) The Election Judge shall keep the provisional ballots separate from the regular ballots.

2. (b) Eligibility to vote provisional ballot.

   1. (1) At all elections, the following Voters shall be eligible to cast a provisional ballot:

      1. (A) A Voter who claims to be properly registered and eligible to vote at the election precinct, but whose name does not appear on the list of registered voters and whose registration cannot be determined by the Voter Registrar; or
      2. (B) A Voter who is designated as a first time Voter on the list of registered voters, but who is unable to produce the required identification; or
      3. (C) A Voter who has applied for a ballot by mail, but has not returned the ballot by mail or cancelled the ballot with the main early voting clerk; or
      4. (D) A Voter who votes during the polling hours that are extended by a state or federal court; or
      5. (E) A Voter who is registered to vote but attempting to vote in a different precinct other than the one in which the Voter is registered.
      6. (F) A Voter who is required to present identification but does not.
      7. (G) A Voter who is on the list, but registered residence address is outside the political subdivision.
      8. (H) A Voter who voted in another party's primary.
   2. (2) A person voting by mail may not vote a provisional ballot.

3. (c) Polling Place Procedures.

   1. (1) If a Voter is eligible to cast a provisional ballot, the Election Judge shall immediately inform the Voter of this right. The Election Judge shall also inform the Voter that his or her provisional ballot will not be counted if the Voter casts a provisional ballot at a precinct in which the Voter is not registered (regardless of whether the Voter is registered in another precinct but in the same political subdivision) or if there is an indication on the list of registered Voters that the Voter has voted early in person or by mail.

   2. (2) The Election Judge must request the Voter to present a valid form of identification to vote a provisional ballot. If the Voter has no identification, he may still be permitted to vote a provisional ballot, but his ballot will not be approved for counting and the Election Judge must notify the Voter of that fact. Acceptable forms of identification include:

      1. (A) a driver's license or personal identification card issued to the person by the Department of Public Safety or a similar document issued to the person by an agency of another state, regardless of whether the license or card has expired;
      2. (B) a form of identification containing the person's photograph that establishes the person's identity;
      3. (C) a birth certificate or other document confirming birth that is admissible in a court of law and establishes the person's identity;
      4. (D) United States citizenship papers issued to the person;
      5. (E) a United States passport issued to the person;
      6. (F) official mail addressed to the person by name from a governmental entity;
      7. (G) a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the Voter; or
      8. (H) any other form of identification prescribed by the secretary of state.
   3. (3) Prior to casting a provisional ballot, the Voter shall be required to sign a Provisional Ballot Affidavit Envelope. The Provisional Ballot Affidavit Envelope shall state that the Voter is a registered Voter in the political subdivision and a resident on election day and that he is eligible to vote in the election. The Provisional Ballot Affidavit Envelope shall also require the information necessary to register the Voter, if he proves to be unregistered. A Voter who refuses to sign the Provisional Ballot Affidavit Envelope is not eligible to vote provisionally.
   4. (4) The Election Judge shall make clear to the Voter that in order for the provisional ballot to be evaluated by the Early Voting Ballot Board, he must complete and sign the Provisional Ballot Affidavit Envelope.
   5. (5) The Election Judge shall enter the Provisional Voter's name on the List of Provisional Voter's form.
   6. (6) The Election Judge shall add the name of the Provisional Voter to the poll list and check the column "Provisional".
   7. (7) The Provisional Voter signs the regular signature roster.

   8. (8) The Election Judge shall check the reason under which the Voter voted provisionally on the provisional ballot envelope. The reasons include:

      1. (A) Voter not on list of registered voters, Voter Registrar could not be reached;
      2. (B) Voter not on list of registered voters and could not be verified by Voter Registrar;
      3. (C) Voter on list of registered voters, but did not provide certificate or other form of identification;
      4. (D) Voter not on list and no identification;
      5. (E) Voter on list of persons who voted early by mail, Voter says he/she did not receive or return the ballot and refuses to cancel the ballot with the Early Voting Clerk;
      6. (F) First time Voter without any identification;
      7. (G) Voter who voted after 7:00 p.m. due to court order; or
      8. (H) Voter who voted in another party's primary.
   9. (9) The Election Judge shall then sign the provisional ballot envelope.
   10. (10) The Election Judge shall direct the Voter to choose a ballot from a stack of pre-designated "provisional" ballots.
   11. (11) The Election Judge shall inform the Voter that ballots stamped "provisional" will not be counted if placed in the ballot box without sealing it inside the corresponding envelope.
   12. (12) The Election Judge shall inform the Voter that the Voter will receive notice in the mail as to whether or not their ballot was counted and shall immediately provide to the Voter a written notice which will inform the Voter of this fact in writing, along with information that explains that the Provisional Ballot Affidavit Envelope will be used by the Voter Registrar to register the Voter or update his registration, as applicable.

   13. (13) After the provisional ballot has been voted, the Voter shall:

       1. (A) seal the provisional ballot in a plain white secrecy envelope;
       2. (B) seal the secrecy envelope inside the provisional ballot envelope; and
       3. (C) deposit the Provisional Ballot Affidavit Envelope in the Ballot Box #1 or a separate container that meets the requirements of §51.034 of the Code or has been approved by the Secretary of State.

4. (d) Early Voting Provisional Ballot Procedures.

   1. (1) To the extent practicable, the Early Voting Clerk or Deputy Early Voting Clerk shall follow election day provisional ballot procedures during the early voting period.
   2. (2) The Provisional Voter's precinct number shall be added to an Early Voting List of Provisional Voters.
   3. (3) The presiding judge shall direct the provisional ballot envelopes to be separated from the regularly-cast ballots and placed in a ballot box or transfer case for delivery to the General Custodian of election records. The General Custodian shall deliver the provisional ballots to the Voter Registrar. The Voter Registrar shall sign the List of Early Voting Provisional Voters to verify receipt of the provisional ballot envelopes.
   4. (4) The Voter Registrar shall review the Provisional Ballot Affidavit Envelopes as set out in subsection (e) of this section.

5. (e) Provisional Ballot Affidavit Envelope Transfer Procedures.

   1. (1) After the election day polls have closed, the Election Judge shall enter the number of Provisional Ballot Affidavit Envelopes cast on the register of official ballots and on the List of Provisional Voters.
   2. (2) The Election Judge shall place a copy of the List of Provisional Voters form inside Envelope Number 2.
   3. (3) The ballot box (or other secure container) containing ballots cast on the tabulator and the separate ballot box (or other secure container) containing Provisional Ballot Affidavit Envelopes shall be delivered to the General Custodian of election records or central counting personnel, if applicable under §127.157 of the Texas Election Code.
   4. (4) After the polls have closed and the ballots cast on the precinct tabulator have been reviewed, if ballots stamped "provisional" but not contained in a Provisional Ballot Affidavit Envelope are discovered, such ballots may not be counted and are not transferred to the Voter Registrar. The ballots shall be treated as irregularly marked ballots and the procedure set out in §127.157 of the Code.
   5. (5) The voted Provisional Ballot Affidavit Envelopes shall be placed into a ballot box or transfer case and locked with a copy of the List(s) of Provisional Voters.
   6. (6) The General Custodian of election records or central counting station personnel, if applicable under §127.157 of the Texas Election Code, shall verify that the number of Provisional Voters on the List of Provisional Voters matches the number of Provisional Ballot Affidavit Envelopes recorded on the ballot register. The General Custodian shall also sign the List of Provisional Voters evidencing the number of Provisional Voters per precinct and the number of Provisional Ballot Affidavit Envelopes to be forwarded to the Voter Registrar.
   7. (7) The General Custodian shall also prepare a Summary of Provisional Ballots listing each precinct and the number of Provisional Ballot Affidavit Envelopes received by that precinct.
   8. (8) The General Custodian shall give the Voter Registrar a copy of the Summary of Provisional Ballots at the same time the Provisional Ballot Affidavit Envelopes and List of Provisional Voters are delivered to the Voter Registrar.
   9. (9) The General Custodian shall lock and seal each ballot box or transfer case that contains Provisional Ballot Affidavit Envelopes prior to delivery to the Voter Registrar. The numbers on the seal shall be recorded on the Summary of Provisional Ballots.
   10. (10) A Poll Watcher, if available, may sign the Summary of Provisional Ballots.

6. (f) Transfer to Voter Registrar.

   1. (1) The General Custodian shall deliver the ballot box(es) or transfer case(s) containing the Provisional Ballot Affidavit Envelopes along with the Summary of Provisional Ballots and the List of Provisional Voters for each precinct to the Voter Registrar on the next business day after the election.
   2. (2) If the Voter Registrar wishes to take possession of the ballot box(es) or transfer case(s) containing the Provisional Ballot Affidavit Envelopes from the General Custodian of election records on election night, the Voter Registrar must inform the General Custodian of election records and post a Notice of Election Night Transfer no later than 24 hours before election day. If the Voter Registrar makes this determination, the Voter Registrar must go to the General Custodian's office and take possession on election night.
   3. (3) Upon receipt of the ballot box(es) or transfer case(s) containing the Provisional Ballot Affidavit Envelopes and their keys, the Voter Registrar shall sign the Verification of Provisional Ballots and Serial Numbers to verify such receipt, that the box was intact, and that the seal was not broken.
   4. (4) The Voter Registrar shall break the seal and unlock the box.
   5. (5) The General Custodian of election records shall supply the Voter Registrar with a sufficient number of seals to re-seal the ballot box(es) or transfer case(s) containing the provisional ballots once his or her review is completed.
   6. (6) The Voter Registrar must keep the List of Provisional Voters together with the corresponding Provisional Ballot Affidavit Envelopes for that precinct. The Voter Registrar does not complete any information on this form.
   7. (7) If the Early Voting Ballot Board meets prior to election day to prepare ballots for counting as authorized under §87.101 of the Code, the Voter Registrar may attend the meeting and take possession of early voting Provisional Ballot Affidavit Envelopes prior to election day. The Voter Registrar shall give the General Custodian of election records written notice of his or her intent to take early possession of the Provisional Ballot Affidavit Envelopes at least 24 hours prior to the scheduled meeting of the ballot board.

7. (g) Voter Registrar Review of Provisional Ballot Affidavit Envelopes.

   1. (1) No later than the third business day after election day, the Voter Registrar shall complete the review of the Provisional Ballot Affidavit Envelopes. As part of the review, the Voter Registrar shall review information from the following sources to attempt to determine the Provisional Voter's registration status:

      1. (A) the Department of Public Safety;
      2. (B) Volunteer Deputy Registrars; and

      3. (C) other records that may establish the Voter's eligibility. The Voter Registrar must examine each Provisional Ballot Affidavit Envelope, determine the Voter's registration status, and indicate the status on the face of the Provisional Ballot Affidavit Envelope as one of the following:

         1. (i) No record of voter registration application on file in this county;
         2. (ii) Registration cancelled on ________ (fill in date);
         3. (iii) Registered less than 30 days before the election;
         4. (iv) Incomplete registration received, but additional information not returned;
         5. (v) Voter rejected for registration due to ineligibility;
         6. (vi) Registered to vote, but erroneously listed in wrong precinct;
         7. (vii) Registered to vote in a different precinct within the county;
         8. (viii) Information on file indicating applicant completed a voter registration application, but it was never received in the Voter Registrar's office; and/or
         9. (ix) Voter erroneously removed from list of registered voters.
         10. (x) Voter is registered;
         11. (xi) Voter voted in another party's primary; or
         12. (xii) Other: __________________ (with explanation).
   2. (2) The Voter Registrar shall sign and date his review of each Provisional Ballot Affidavit Envelope.
   3. (3) The Voter Registrar shall copy the Provisional Ballot Affidavit Envelope of each Voter who was not registered to vote, who was registered but whose information contains updated voter registration information, or who was erroneously cancelled or listed in the wrong precinct or for any other reason the Voter Registrar deems necessary.
   4. (4) For purposes of voter registration, the copied Provisional Ballot Affidavit Envelope serves as an original voter registration application or change form; the effective date will be calculated as of the Election Date for which the Provisional Ballot Affidavit Envelope was submitted.
   5. (5) If the residence address provided on the Provisional Ballot Affidavit Envelope falls outside the Voter Registrar's jurisdiction, the Voter Registrar shall forward a copy of the Provisional Ballot Affidavit Envelope to the appropriate Voter Registrar. The effective date of the transferred copy shall be calculated as thirty days from the election date on which the Provisional Ballot Affidavit Envelope was originally submitted. The original Provisional Ballot Affidavit Envelope shall be transferred to the appropriate Voter Registrar after the preservation period upon the Voter Registrar's request.
   6. (6) The Voter Registrar shall keep the Provisional Ballot Affidavit Envelopes separated by election precinct during the review. The Voter Registrar shall replace the Provisional Ballot Affidavit Envelopes in the same ballot boxes or other containers in which the Provisional Ballot Affidavit Envelopes were originally received for transfer to the Early Voting Ballot Board or General Custodian of election records, as designated by the General Custodian of election records, along with the List of Provisional Voters for each precinct. The copy of the Summary of Provisional Ballots is returned to the General Custodian. The box is relocked and resealed in the same manner in which it was received. The serial number of the seal shall be recorded on the Verification of Provisional Ballots and Serial Number form.
   7. (7) The General Custodian of the election records or the Early Voting Ballot Board Judge shall pick up the secured ballot boxes or other containers and all other materials at the time, date, and location designated by the Voter Registrar.
   8. (8) The Voter Registrar shall sign the Verification of Provisional Ballots and Serial Numbers form verifying transfer, and the presiding judge of the Early Voting Ballot Board shall sign indicating receipt of the Provisional Ballot Affidavit Envelopes and that the key and ballot box(es) was properly sealed.
   9. (9) Poll Watchers are not entitled to be present during the Voter Registrar's review.
8. (h) Early Voting Ballot Board defined. The authority appointing the Early Voting Ballot Board may determine which members of the board will review and count the provisional ballots. The entire ballot board is not required to be present. A minimum of three members of the board is required to conduct the review.

9. (i) Review of Provisional Ballot Affidavit Envelopes by Early Voting Ballot Board; Counting Rules.

   1. (1) The presiding judge of the Early Voting Ballot Board shall take receipt of the Provisional Ballot Affidavit Envelopes from the Voter Registrar directly or via the General Custodian of election records at a time and place to be determined by the presiding judge.
   2. (2) The presiding judge of the Early Voting Ballot Board may convene the board as soon as practicable after the Voter Registrar has completed the review of the provisional ballots. The judge must post a notice on the bulletin board used for posting notices of meetings of the governing body ordering the election no later than 24 hours before the board is scheduled to meet. The board may also convene while the Voter Registrar continues his or her review.
   3. (3) The Early Voting Ballot Board must receive and review the Provisional Ballot Affidavit Envelopes.

   4. (4) The Early Voting Ballot Board shall review both the Election Judge's and the Voter Registrar's notation on each Provisional Ballot Affidavit Envelope to determine whether or not the ballot should be counted as indicated below:

      1. (A) If the Voter Registrar indicates that the Provisional Voter is registered to vote and was erroneously registered in the wrong election precinct, the ballot shall be counted.
      2. (B) The ballot shall be counted if the Voter Registrar determines that the Provisional Voter is eligible and submitted a timely voter registration application, but was not timely received by the Voter Registrar.
      3. (C) If the Election Judge indicated that the Voter did not provide a valid registration certificate or other form of identification, the ballot shall not be counted.
      4. (D) If the Election Judge indicated that the reason for casting a provisional ballot was that the Voter appeared on the list of registered voters as having cast a ballot by mail and the Voter claimed that he never received the mail ballot and is not willing to cancel his or her mail ballot application with the main Early Voting Clerk, the provisional ballot shall not be counted.
      5. (E) If the Voter Registrar indicates that there is no record of the Provisional Voter's registration application on file with the county, the provisional ballot shall not be counted.
      6. (F) If the Voter Registrar indicates that the Provisional Voter's registration has been cancelled and provides the date, the ballot shall not be counted.
      7. (G) If the Voter Registrar indicates that the Provisional Voter was registered less than 30 days before Election Day and therefore did not have effective registration for the precinct at which he attempted to vote, the ballot shall not be counted.
      8. (H) If the Voter Registrar indicates that an incomplete application was received from the Provisional Voter but the required additional information was not returned, the ballot shall not be counted.
      9. (I) If the Voter Registrar indicates that the Provisional Voter's registration application was rejected due to ineligibility, the ballot shall not be counted.
      10. (J) If the Voter Registrar indicates that the Provisional Voter is registered to vote at a different precinct other than the one the Voter voted in, the ballot shall not be counted.
      11. (K) If the board determines that the Provisional Voter was not registered and not entitled to vote at the election precinct where the ballot was cast, the ballot shall not be counted.
      12. (L) If either the Election Judge or the Voter Registrar indicates that the voter voted in another party's primary, the ballot shall not be counted.
      13. (M) The Voter Registrar has information in the office that the Voter did complete an application, and the Voter is otherwise qualified, the ballot shall be counted.
      14. (N) If the Voter was erroneously removed from list and Voter is otherwise qualified to vote, the ballot shall be counted.
      15. (O) If the Voter Registrar indicates that the Voter is registered, the ballot shall be counted.
   5. (5) The presiding judge shall indicate the disposition of each ballot on the Provisional Ballot Affidavit Envelope.
   6. (6) The presiding judge shall indicate the disposition of each ballot on the appropriate space of the List of Provisional Voters for that precinct.
   7. (7) The ballots to be counted shall be removed from their Provisional Ballot Affidavit Envelopes and counted under the normal procedure for counting ballots by mail in the election, unless the manager of the central counting station decides that the ballot board shall count the ballots manually and add the totals to the computer count for a canvass total. See paragraph (9) of this subsection for electronic procedures, if the manager decides to count ballots in regular manner. If counted by hand, the ballots are tallied by precinct in the regular manner. The board prepares the returns and submits the returns to the General Custodian of election records.
   8. (8) The Provisional Ballot Affidavit Envelopes for accepted ballots shall be placed in an Envelope for Provisional Ballot Affidavit Envelopes marked "Accepted" and the Provisional Ballot Affidavit Envelopes and their Provisional Ballots for the rejected ballots shall be placed in an Envelope for Provisional Ballot Envelopes marked "Rejected".

   9. (9) If the provisional ballots are to be counted electronically:

      1. (A) The manager of the central counting station shall decide whether the ballot board shall manually count the ballots and be manually added to the computer count for a canvass total or whether the central counting station shall reconvene.
      2. (B) The manager shall send notice to the presiding judge of the ballot board prior to reconvening the board as to whether the ballots are to be counted manually by the board or whether the ballots are merely to be prepared for delivery to the central counting station.
      3. (C) The manager must order a second test to be conducted prior to the count. The test must be successful.
      4. (D) After the second successful test is conducted, the unofficial election results, preserved by electronic means, shall be loaded in the tabulating equipment.
      5. (E) Once the ballots have been counted, results shall be prepared in the regular manner. The manager shall prepare a certification and attach it to the returns, then place the certification and returns in envelope #1 to be delivered to the presiding officer of the canvassing board indicating that the result supersedes any returns printed prior to the reconvening of the central counting station after election day.
      6. (F) After the results have been prepared, a successful third test must be performed.
      7. (G) The results, ballots, and distribution of ballots and all records shall be made in the regular manner.
   10. (10) Once counted, the Provisional Ballot Affidavit Envelopes shall be re-locked in the container and returned to the General Custodian of election records. The key shall be delivered to the General Custodian of the key.
   11. (11) The List of Provisional Voters for each precinct shall be delivered to the General Custodian of election records in the Envelope for Accepted Provisional Ballot Affidavit Envelopes.
   12. (12) The provisional ballots and Provisional Ballot Affidavit Envelopes shall be retained for the appropriate preservation period for the election.
   13. (13) The Lists of Provisional Voters for each precinct shall be retained and used by the General Custodian of election records to provide information to Voters on whether the provisional ballot was counted or not.
   14. (14) All Provisional Ballot Affidavit Envelopes and the List of Provisional Voters are public records.
   15. (15) Rejected Provisional Ballot Affidavit Envelopes may not be opened except by court order.
   16. (16) Poll Watchers are entitled to be present at the meeting of Early Voting Ballot Board pursuant to §33.054 of the Texas Election Code.
10. (j) Request for Return of Original Envelopes. Upon request of the Voter Registrar, the General Custodian of election records shall deliver the original Provisional Ballot Affidavit Envelopes to the Voter Registrar after the preservation period.
11. (k) Notice to Provisional Voters. Not later than the 10th day after the local canvass, the presiding judge of the Early Voting Ballot Board shall deliver written notice regarding whether the provisional ballot was counted, and if the ballot was not counted, the reason the ballot was not counted. The presiding judge shall use the information provided on the Provisional Ballot Affidavit Envelope to obtain the proper mailing address for the Voter and the final resolution of the provisional ballot.

Source Note:The provisions of this §81.173 adopted to be effective November 1, 2012, 37 TexReg 8959.