Election Advisory No. 2024-32

To:	All Cities, School Districts, and Other Political Subdivisions
From:	Christina Worrell Adkins, Director of Elections
Date:	October 30, 2024
RE:	Post-Election Procedures and Qualifying for Office for the November 5, 2024 Uniform Election Date

This post-election advisory is directed to cities, school districts, and other (non-county) political subdivisions like water districts, hospital districts, and library districts. It is not directed to state, district, county, or precinct officers elected at the general election for state and county officers on November 5, 2024. For a discussion of the Government Code provisions requiring such officers elected to full terms to wait until January 1, 2025 or afterwards to be sworn in, see Tex. Atty Gen. Op. No. GA-0263 (2004) (PDF).

I. Overview And Quick Reference

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

Forms

The following is a list of forms relevant to events after the November 5, 2024 elections. Samples of these forms can be accessed from our website:

Brief Reminders

Statements of Officer are filed locally, NOT with the Secretary of State’s office.
Canvass must be conducted between Friday, November 8, 2024 and Tuesday, November 19, 2024.*

*NOTE: The canvass may not be conducted until the early voting ballot board has: 1) qualified and counted all provisional ballots, if a provisional ballot has been cast in the election, 2) counted all timely received late-arriving ballots (see details below), AND 3) counted all ballots contained in previously defective carrier envelopes which were corrected by voters by the required deadline.

Wednesday, November 6, 2024 at 5:00 p.m. is the last day to receive “late domestic ballots” placed in the mail by 7:00 p.m. on Election Day from voters who are voting from within the United States and who submitted an Application for Ballot by Mail (“ABBM”).
Tuesday November 12, 2024 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.
Tuesday, November 12, 2024 is the last day to receive carrier envelopes mailed domestically or overseas from voters who submitted a Federal Post Card Application (“FPCA”) and who are members of the armed forces of the United States, or the spouse or a dependent of a member of the armed forces, members of the merchant marines of the United States, or the spouse or a dependent of a member of the merchant marine, members of the Texas National Guard, or the spouse or a dependent of a member of the Texas National Guard, a member of the National Guard of another state, or the spouse or a dependent of a member of the National Guard of another state, or members of the Reserves, or the spouse or a dependent of a member of the Reserves.
Monday, November 18, 2024 is the last day for the early voting ballot board to qualify and count the above-referenced ballots, as well as provisional ballots and ballots contained in previously defective carrier envelopes which were corrected by voters by the required deadline. Tex. Elec. Code §§ 65.051, 67.003, 86.007(a)(2), 86.007(d)(3), 86.011(d), 87.0271, 87.0411, 101.057.

For additional information regarding ballot by mail deadlines, please see our election law calendar here: November 5, 2024 Election Law Calendar.

II. Qualifying for Office

Canvass Meeting

The canvass must be conducted at an open meeting of the governing body between Friday, November 8, 2024 and Tuesday, November 19, 2024. Tex. Elec. Code § 67.003. Only two officers are needed for a quorum for a canvassing meeting. Tex. Elec. Code § 67.004(a).

Two or more members of the governing body of a political subdivision may perform a duty placed by the Election Code on the presiding officer of the governing body if the office is vacant or the presiding officer fails to perform the duty unless: (1) a single member of the governing body designated by law to act in place of the presiding officer performs the duty; or (2) the Election Code specifies that the duty is to be performed by another authority acting in place of the presiding officer. Tex. Elec. Code § 31.121. This means that any two members of the governing body can act in lieu of the presiding officer to perform a duty placed on the presiding officer by the Election Code (unless outside law provides for a substitute). For example, any two members could act in lieu of the presiding officer to issue the Certificate of Election.

The canvassing authority shall prepare a tabulation stating the following:

Each candidate
1. Total number of votes received in each precinct
2. Sum of precinct totals tabulated
Votes FOR and AGAINST each measure
1. Total number of votes received in each precinct
2. Sum of precinct totals tabulated
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). See information about Reconciliation Forms in Section III of this advisory.

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 the local canvass in Section 67.004 of the Texas Election Code. The election register shall be preserved as a permanent record. Tex. Elec. Code § 67.006.

Certificate of Election, Statement of 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. Art. XVI, § 1; Tex. Elec. Code §§ 67.004 – 67.006, 67.016, 67.017.

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).

Before an elected (or appointed) officer may assume the duties of the office, the officer must first file a Statement of 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 the recount. Tex. Elec. Code §§ 212.033, 212.0331. See our current Recount advisory and our Recounts outline for deadlines and additional details.

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 to Type A officers-elect. 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. Please note that some persons authorized to administer an oath are limited in their authority, and can only administer an oath in certain situations. See Chapter 602 of the Texas Government Code for the most extensive list.

Rules Specific to Certain Cities and Other Entities

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 at least the fifth day after the election, excluding Sundays (Monday, November 11, 2024). Tex. Loc. Gov’t Code § 22.036. Section 22.036 of the Texas Local Government Code further requires that the newly-elected governing body of a Type A municipality “meet at the usual meeting place and shall be installed.” Tex. Loc. Gov’t § Code 22.036. Type A cities have authority to require a bond. Tex. Loc. Gov’t Code § 22.072. Additionally, if a Type A officer-elect fails to qualify for office (be sworn in) within 30 days after the date of the officer's election, the office is considered vacant. Tex. Loc. Gov’t Code § 22.007.

Also, your source law might require a bond. For example, in Type C cities, the mayor and commissioners must execute a bond for $3,000 payable to the municipality. Tex. Loc. Gov’t Code § 24.024. In most water districts, officers must execute a bond for $10,000 payable to the district. Tex. Water Code § 49.055(c).

If a bond is required, the bond must be executed before the officer assumes his or her duties.

Oaths and Water Districts, Chapters 36 & 49 of the Texas Water Code

Please note that special procedures apply to a newly elected director of a water district that is 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

Cancellation Procedures

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; 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 5, 2024 election, pursuant to the [order or ordinance] issued on [date], cancelling the election that was scheduled to be held on November 5, 2024” or similar language. Tex. Elec. Code § 67.016. Please note that cancellation forms can be obtained from our office or by accessing our website.

What if Nobody Filed?

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 (PDF) (1939); Sec’y State Op. No. JWF-36 (PDF) (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.

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.

Pursuant to House Bill 357 (88th Leg., R.S., 2023), the Secretary of State designated Saturday, December 14, 2024 as the election date for all runoff elections resulting from elections held by local political subdivisions on the November 5, 2024 Election Date. Tex. Elec. Code § 2.025. For additional information regarding the December 14, 2024 runoff election date, please see our election law calendar here: November 5, 2024 Election and December 14, 2024 Runoff Election Law Calendar.

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.

NOTE: In the event of a tie, candidates may choose to withdraw or cast lots to resolve the tie before the automatic recount is held. If the tie vote is not resolved by a withdrawal or lot drawing (at this first opportunity), an automatic recount shall be conducted in accordance with Chapter 216. If an automatic 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. Tex. Elec. Code § 2.002.

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. For more details, see Tex. Elec. Code § 2.002 and Chapter 216.

NOTE: A tie vote in a runoff election (based on official canvassed returns) triggers an automatic recount under Section 2.028 and Chapter 216 of the Code. 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.

Post Returns on Website (Certain Entities)

NOTE: Section 65.016 of the Code provides that election results information must be posted on county, city, and school district websites. A county that holds an election or provides election services for an election for a public entity must post certain information regarding election results on their website after the election.

A city or independent school district that holds an election and maintains an Internet website must also post certain information on their website related to election results, even if the county is also posting such information. Information should be posted as soon as practicable after the election and must be accessible without having to make more than two selections or view more than two network locations after accessing the home page of the county, city or school district, whichever is applicable. Required information on the websites must include:

the results of each election;
the total number of votes cast;
the total number of votes cast for each candidate or for or against each measure;
the total number of votes cast by personal appearance on election day;
the total number of votes cast by personal appearance or mail during the early voting period; and
the total number of counted and uncounted provisional ballots cast. Tex. Elec. Code § 65.016.

NOTE: Some (but not all) of this information is also included in the reconciliation form, as described below. It is possible to post this information on the same web page as your reconciliation form, if both requirements apply to you. Please note that the posting requirement under Section 65.016 applies to the entities described above, regardless of whether there is a central counting station.

Reconciliation Forms (Elections With Central Counting Station)

NOTE: Section 127.131(f) of the Code requires the presiding judge of the central counting station to prepare a preliminary reconciliation form (PDF) on election night and a final reconciliation form (PDF) after the canvass. These forms must be posted on the county website with your election returns and results after they are completed and signed. This posting requirement applies regardless of whether your local entity is contracting with the county for election services. We recommend posting the reconciliation form on your entity’s website, if you maintain one.

Please note that Section 127.131(f) applies to entities that conducted voting in such a manner that they had a central counting station. For example, it would not apply to an entity that used an Automark to comply with accessible vote-casting, where ballots were hand-counted.

File Returns with Secretary of State (Counties)

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.

Note about Joint Elections and Contracts for Election Services

The procedures above outline the general rules; however, many entities may be holding joint elections (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.

IV. Required Post Election Audit - Partial Manual Count

Overview

The partial manual count (“PMC”) is a post-election audit that is required under Section 127.201 of the Texas Election Code. It is a hand count of select ballots that is designed to verify the accuracy of the tabulation equipment used in the election. Only ballots that are read by a scanning device are required to be part of the PMC. If paper ballots are hand counted or cast only on a traditional, paperless direct recording electronic (DRE) voting system, they are not part of the partial manual count.

Partial Manual Count Requirements

All counties and local political subdivisions that tabulate their voting system ballots electronically are required to conduct the partial manual count. The partial manual count must be conducted after every election that uses paper ballots that are counted with an electronic voting system. This includes voter marked paper ballots and paper ballots generated by a ballot marking device. It also includes all ballots (voting by mail, early voting, and election day) that were counted with a precinct or central scanner and reported as part of the unofficial results on election night.

Ballots cast on a paperless DRE are exempt from the partial manual count. Tex. Elec. Code § 127.201(g).

The election official must begin the partial manual count within seventy-two (72) hours after the polls close. The count shall be completed no later than the 21st day after Election Day. Tex. Elec. Code § 127.201(a).

How to Determine Which Precincts are Included

General Rule

The general custodian of election records shall conduct a manual count of all the races in at least one percent (1%) of the election precincts or three precincts, whichever is greater. The general custodian randomly selects their precincts. After they conduct the count, the general

custodian submits the results to the Secretary of State’s office via the CSO reporting system. Tex. Elec. Code § 127.201(a).

General Elections for State and County Officers, Primary Elections, and Constitutional Amendment Elections

In a general election for state and county officers, a primary election, or a constitutional amendment election, the SOS designates the selected precincts for the counties to count. The SOS also designates not more than three offices and not more than three propositions to be counted. The SOS then notifies the general custodian of election records of the selected precincts, offices and measures that are to be counted. Tex. Elec. Code § 127.201(b).

For additional information regarding PMC procedures, please see our Advisory 2018-30: Revised Procedures for Partial Manual Count.

CC: County Clerks/Elections Administrators

CA:RJ