Procedures to Request and Conduct a Recount

This outline summarizes Texas election law with respect to recounts as currently codified. We have made every effort to insure the accuracy of this summary outline, but this material cannot substitute for the statutory source material and relevant interpretive case law and administrative regulations. All statutory references are to the Texas Election Code (the “Code”) unless otherwise noted.

Recount request deadlines occur soon after the canvass, and as noted below, a recount must be requested not later than two days following the canvass.

Introduction:

Recount Basics
1. A recount is only used to recount the votes in a particular race (office) or measure.
2. A recount does not have the scope of an election contest in court. This means that a recount does not look at the manner in which voters were qualified to vote in person or by mail.
3. The governing body of an entity cannot conduct a recount on its own motion, e.g., at the canvass.
4. Any entry into the ballot box other than in response to a proper recount request or in accordance with other Code procedures (e.g., election contest, criminal investigation) is an unauthorized entry carrying criminal penalties.
Common Misconceptions Regarding Recounts

A recount is not an Election Contest;
A recount DOES NOT delay canvassing, but the canvassing authority must make a note on the canvass that a recount has been requested. Submission of a recount petition delays the issuance of a certificate of election and qualification for the office involved in the recount pending completion of recount;
A recount DOES NOT authorize the requalifying of voters; and
A recount DOES NOT authorize more than one recount of a race or measure. If a petition to request a recount for a particular race or measure is filed, this does not authorize all races or measures on the ballot to be recounted as well. Only the race or measure that was petitioned for will be recounted.

Who May Petition for a Recount [Chapter 212, Texas Election Code]

A petition that complies with the applicable requirements MUST first be filed in order to begin a recount. [Sec. 212.025]
Candidate:
1. A candidate for a nomination or election to an office only if the candidate is shown by the election return not to be nominated or elected. [Sec. 212.022].
2. A winning candidate in certain circumstances affecting officers with a state level canvass may request a recount [Secs. 212.0241(b), 212.131(c)
For a measure election:
1. The campaign treasurer of a specific-purpose political committee that was involved in the election; [Sec. 212.024] or
2. Any 25 or more persons, acting jointly, who were eligible to vote in the election may petition for a recount. [Sec. 212.024] The 25 persons acting jointly need to provide on the petition (for each of the 25) the name, residence address, voter registration number (if authorization to obtain the recount is based on eligibility to vote in the election), and county of registration (if the election covers territory in more than one county). However, as to the signature, this group needs the signature of one or more of the 25 requestors, or the agent. The agent must be a resident of this state. [Sec. 212.001(8)]

Petition Grounds for a Recount [Secs. 212.022 – 212.0241]

In order for a recount to be conducted, a petition MUST state a valid ground under the Code.

A petition may be filed if the difference between the number of votes received by the petitioner and number of votes received by the person who was elected or is entitled to a place on the runoff election ballot is less than 10% of the number of votes received by the person elected or entitled to a place on the runoff ballot (same formula for votes for and against a measure);

Example:

Jane Doe

2000

John Doe

1850

difference

150

10% of 2000 is 200, therefore, John may request a recount;

A petition may be filed if the number of votes received by ALL candidates in the race (not just the top vote-getters) is less than 1000;

A petition may be filed if an election judge swears that he or she counted paper ballots incorrectly (this must be certified by the Secretary of State and it does not happen very often); or

No ground for a petition is required for a recount of electronic system results. [Sec. 212.0241].

Petition Contents [Sec. 212.001]

A petition must be written. Delivery of the petition must be in person or by mail as a deposit is required along with the petition.
Contents of Petition:
1. The petition MUST identify the office or measure for which a recount is requested. If the request is for a measure, it must state that the requestor is either for or against the measure.
2. The petition must state the ground for the recount. No ground is required for a recount of electronic voting system results. [Sec. 212.0241]
3. The petition MUST identify the election precincts for which a recount is requested and method of voting that is used. (See VII Scope of Recount for Details)
4. If the requestor is requesting a recount of electronic voting system ballots, the petition MUST specify the preferred method of either a manual or an electronic recount.
  
  NOTE: If more than one petition for a recount is filed and more than one method of counting is requested, a manual recount takes precedence over an electronic recount. An electronic recount using a corrected program takes precedence over electronic recount using the same program as the original count.
5. The petition MUST include the petitioner’s (candidate) name, residence address and mailing address (if different), email address, and at least one telephone number at which the petitioner can receive notice. A petitioner may designate an agent to receive notice if the petitioner is not a resident of this state or if there is more than one person requesting the recount. [Sec. 212.001]
6. The petition MUST contain the name of each opposing candidate, a mailing address, email address (if any), and at least one telephone number (if any) at which each can receive notice.
7. The petition MUST contain the petitioner’s (candidate) signature or their agent’s signature.
8. The required deposit fee MUST accompany the petition. [Sec. 212.001]

Deposit for Recount [Secs. 212.111‑212.113, Ch. 215] [House Bill 3107 (87th Leg., RS, 2021)]
1. The deposit is based in part on the number of election day polling places or precincts. Note that in this context, precinct means voter registration precinct(s). Early voting ballots are considered to be one additional polling place or voter registration precinct. This means the petitioner should determine the total number of voter registration precincts that contained the race or measure that is the subject of the recount and compare that number to the total number of election day polling places used in the election that contained ballots with that race or measure, then include one additional polling place or voter registration precinct to that number (for early voting ballots) in order to determine the total deposit due.
2. Calculation of deposit: [Sec. 212.112]
  1. $60 for each election day polling location or precinct, whichever results in a smaller amount, in which regular paper ballots were used; and
  2. $100 election day polling location or precinct, whichever results in a smaller amount, in which an electronic voting system was used.
    
    EXAMPLE: Petitioner filed a recount petition for a race. Ten polling places were used on election day that contained ballots with this race and voters from five voter registration precincts were eligible to vote on this race. The local political subdivision used an electronic voting system to conduct the election. Should the deposit be based on the number of polling places or voter registration precincts?
    
    In this case, there are fewer voter registration precincts than total number of polling places used on election day which contained ballots with this race. This is the case even after adding one additional polling place or voter registration precinct for early voting ballots. As such, this deposit should be based on the number of voter registration precincts.
3. The following is a complete list of what costs are assessable against a person requesting a recount. These costs may be paid from the deposit.
  1. Compensation of recount committee members;
  2. Charges for use of automatic tabulating equipment; and
  3. Service charge of $15 for each recount supervisor as reimbursement to the fund from which telephone, postage and other office expenses of the recount
    supervisor(s) are paid.
  4. In an election for which the final canvass is at the state level (statewide office or measure, district office, or president or vice-president of the United States), a service charge of $15 for each recount supervisor and an additional $50, paid to the recount coordinator, for reimbursement to the fund from which telephone, postage and other office expenses of the recount supervisor(s) are paid.
  5. The actual expense incurred in producing a printed ballot image from an electronic voting system record.
4. Form of Payment The deposit must be in the form of cash, cashier's check, or money order made payable to the recount coordinator and must accompany the petition. The deposit may not be paid with a personal check. [Sec. 212.111]
5. Refund and Assessment of Costs
  1. The recount supervisor shall maintain records of the recount costs.
  2. If the outcome of the election is changed by the recount, the entire deposit is returned to the petitioner. If the outcome does not change, the costs listed above are paid from the deposit. If the deposit is insufficient to cover the costs, the petitioner is responsible for the additional costs. Any part of the deposit remaining after the costs are paid is returned to the petitioner. A change in "outcome” means that the winner of the election changed (officer), or the result as to whether a proposition passed or failed changed (measure).
  3. Where more than one request for a recount is filed and the petitioner’s chosen counting method is not used, the petitioner is entitled to a refund unless any necessary expenditures incurred before the other counting method was chosen.
Deadline For Filing [Senate Bill 825 (88th Leg., RS, 2023)]
1. Regular: (plurality vote, or majority vote but only two candidates) If the entity elects by PLURALITY (a majority vote is not required), OR, if there were just TWO candidates in the race, the deadline is 5:00 p.m. of the third business day after the canvass. Candidates are elected by plurality vote unless the law (e.g., statute, home-rule charter, court order) expressly provides otherwise. If the deadline falls on a Saturday, Sunday, or legal state holiday, the deadline is extended to 10:00 a.m. of the next regular business day. [Secs. 2.001, 212.028].
  
  NOTE: A majority vote means that the winning candidate must receive more than 50% of the total votes. A plurality vote means that the winning candidate must receive more votes than any other candidate for the office.
2. Expedited: When a majority vote (NOT plurality) is required AND there were more than two candidates, the deadline is 2:00 p.m. of the second day after the date of the local canvass. If the deadline falls on a Saturday, Sunday, or legal state holiday, the deadline is extended to 10:00 a.m. of the next business day. [Secs. 2.025, 2.023, 212.083, 212.088].
3. Regarding all recount deadlines: The request is considered submitted AT THE TIME OF ITS RECEIPT. [Sec. 212.003].
Scope of Recount

Offices or measures without state level canvass (i.e., city, school, other political subdivisions; county and precinct offices in a primary or November general election): request must include every election day precinct in the territory from which the officer is elected (unless the ground is counting errors under Section 212.034). [Sec. 212.131].
Offices or measures with state level canvass (i.e., statewide and district offices in a primary or November general election):

NOTE: All district offices are canvassed at the state level, regardless of whether they consist of one or more counties. [Secs. 172.119, 67.010].

In an election for which there is a final canvass at the state level, an initial recount of votes cast in a particular voting system may include any one or more counties covered by the election, but must include all the election precincts in which a particular voting system is used in each county recounted. [Sec. 212.131].
In an election for which there is a final canvass at the state level, an initial recount of votes cast on paper ballots (i.e., hand-counted on election day) must include each election precinct in which paper ballots were used in the election, except as provided by Section 212.131(d) (counting errors under Section 212.034). [Sec. 212.131].

In general, all votes cast in the election precinct(s) requested are subject to recount. [Sec. 212.135; for more details see Secs. 212.136, 212.137, 212.034, 212.132].

Petition Recipient [Sec. 212.026]
1. The petition should be submitted to the presiding officer of the final canvassing authority or to the substitute recount coordinator, see Section IX of this outline for listing. See also Sec. 1.007, which authorizes employees to accept filings at the authority’s place of business.
2. If the presiding officer of the final canvassing authority is not the recount coordinator, the presiding officer shall promptly deliver any petition submitted to him/her to the substitute coordinator. A petition otherwise timely submitted shall not be deemed invalid because of this.
Recount Coordinator [Sec. 211.002(6)]

The petition requesting a recount must be filed with the recount coordinator. The authority to whom a petition for an initial or expedited recount is submitted is under Section 212.026 or 212.082 of the Code. The recount coordinator is effectively the presiding officer of the final canvassing authority. The final canvassing authority is often the same as the local canvassing authority.
Presiding officer of final canvassing authority (county judge for county and precinct races) [Secs. 212.026, 212.082].

Primary election-county chair (county and precinct races); state chair (state and district races)
November election for state and county officers-county judge (county and precinct races); Secretary of State (state and district races) [Sec. 67.010(b)]

If the presiding officer of the local canvassing authority is a candidate in a race for which a recount is to be made, he or she is ineligible to serve as a recount coordinator or recount supervisor [Sec. 211.004(a)]. The following authority shall serve as substitute coordinator or supervisor if the presiding officer is ineligible or unable to serve:

County clerk, if a commissioners court is the canvassing authority.
For a city, the city secretary;
For a political subdivision other than a county or city, the secretary of the governing body or the person performing the duties of secretary under the Election Code. [Sec. 211.004(a)].
For a primary, the secretary of the county executive committee, if a political party’s county executive is the canvassing authority and the committee has a secretary who is a member of the committee, or the county clerk if the committee does not have a member-secretary.

Review of Petition [Secs. 212.029 - 212.030, 212.085]

The recount coordinator has 48 hours to review the petition once it is received. The recount coordinator must promptly notify the petitioner of each defect. [Sec. 212.029].
Any amendment to a petition in response to a notice of a defect must be submitted by the deadline for submitting the petition or by 5:00 p.m. of the second day after notice of the defect is received, whichever is later. [Sec. 212.030].
If the amendment does not correct each defect in the petition of which the petitioner was notified, the recount coordinator shall reject the amended petition. The recount coordinator shall promptly notify the petitioner of each remaining defect and shall enter on the amended petition a description of each defect and the date of notice. A petition may not be amended more than once. [Sec. 212.030]
A correction of an improper deposit is considered an amendment of the petition. [Sec. 212.030(e)]

Approval of Petition

If a petition is approved, the recount coordinator must note approval and the date of approval on the petition. The recount coordinator must notify the recount supervisor of the approval. The recount supervisor shall, with the written approval of the recount coordinator, order the recount. The county judge serves as coordinator and supervisor where commissioners court is the final canvassing authority. The coordinator must notify the following:

The petitioner and each opposing candidate of approval. [Secs. 212.031 & 212.032].
In a recount on a measure, the campaign treasurer of a political action committee on the opposite side of the petitioner, or a person eligible to vote in the election who is representative of the interests of the other side if there is no political action committee. [Sec. 212.032].

Recount Supervisor

The recount supervisor is the authority designated by Section 213.001 (see B. below) to manage and supervise a recount in election precincts in the jurisdiction of the local canvassing authority [Sec. 211.002(7)]. The recount supervisor is also in charge of appointing recount committee members and the chair of the committee. The recount supervisor is the presiding officer of the local canvassing authority or the designee of same. [Secs. 213.001, 211.004].
Presiding officer of the local canvassing authority (governing body).

Commissioners court – county judge
Primary election-county chair
City election - mayor
School election - president of school board
Water district election - president of board of directors
Hospital district election - president of board of directors
Other political subdivision elections - president of the board of directors

Time and Place [House Bill 3107 (87th Leg., RS, 2021)

The recount supervisor, with the written approval of the recount coordinator (if a different person), must order a recount to be held on the later of the 7th day after the date the petition is approved, or the day after all ballots have been delivered to the general custodian of election records. The recount supervisor must make arrangements for conducting a recount, and set the time and place in order to beginning recount. [Sec. 212.031].
Notice

The recount supervisor must give “personal notice” to the petitioner and all opposing candidates at least 18 hours before the recount is set to begin. This time period can be waived and the recount may start earlier if ALL persons entitled to the notice agree to start earlier. Notice MUST include time and place and the number of counting teams designated. [Secs. 213.009 & 213.010].
Recount Committee [Chapter 213]
1. The recount supervisor appoints the recount committee members. The recount committee is composed of at least four members, appointed by the recount supervisor. The recount supervisor also names the chair of the committee.
2. The recount coordinator may appoint one member of each counting team.
3. The committee members must meet the qualifications of an election day clerk in order to serve on the committee.

Exception: A person who served as a judge on election day or of the early voting ballot board is ineligible to serve on the recount committee.

Committee members are entitled to an hourly rate of pay that is set by the recount supervisor.
In a recount other than one on automatic tabulating equipment, the committee functions as one or more counting teams composed of three members each. [Secs. 213.002‑213.005].

Who May be Present
1. Only persons specifically permitted to attend by law may be in the room where the recount is taking place or in a hallway within 30 feet of the entrance to the room. [Sec. 213.015]. Those persons are:
  1. The recount chair and committee members. [Sec. 213.002].
  2. The candidates and their watcher(s).
    1. Each candidate may have two watchers if there is just one counting team or watchers in a number equal to the number of counting teams if there is more than one counting team. The watchers must present certificates of appointment, and they have the same rights, duties, and privileges of election day poll watchers; however, the Code does not specify the same eligibility requirements. [See Sec. 213.013(f) for certificate requirements].
    2. Photocopying by a watcher-On request of a person entitled to appoint watcher(s) to serve at the recount; the recount committee chair must permit the person to photocopy, under the chair's supervision, any ballot challenged by the person or by the person's watcher. The person must pay a reasonable charge for making the copies, and if no copying equipment is available, may supply the equipment at his or her own expense. [Sec. 213.013(i)].
    3. The custodian of the voted ballots. [Sec. 213.001(c)].
    4. The recount supervisor. [Sec. 213.002].
    5. Any state or federal inspectors.
2. During any printing of ballots cast using a DRE, for use in a recount, the full recount committee is not required to be present and the chair may decide how many members should be present. Each candidate is entitled to be present at the printing and to have the same number of watcher(s) at the printing as counting teams designated for the recount. [Sec. 213.016].
3. No device capable of recording images or sound is allowed inside the room in which the recount is conducted, or in any hallway or corridor in the building in which the recount is conducted within 30 feet of the entrance to the room, while the recount is in progress unless the person entitled to be present at the recount agrees to disable or deactivate the device.
Retrieval of Erroneously-Placed Records
If the election records custodian determines that election records were placed in the locked ballot boxes in error (e.g., all four copies of the “combination form” or other records were mistakenly locked in the ballot box), it is the opinion of the Elections Division that during the time of the authorized entry into the boxes for purposes of the recount, the records custodian may retrieve the documents as necessary to comply with the Election Code and to avoid the necessity of a court order. [Sec. 66.059]. The retrieval should be in the presence of the recount chair and other authorized persons, and the records custodian should make a note of the retrieval in the election records. (See Section I above, ballot box may be unlocked only as authorized by law; unauthorized entry carries criminal penalties.)
Access to Ballots, Equipment, and Other Material

On presentation of a written order signed by the recount coordinator, the custodian of the voted ballots, voting machines, tabulating equipment, etc. shall make these items available to the recount committee. [Sec. 213.007]. Pursuant to the federal Help America Vote Act, the audit log of the electronic voting system must be available upon request.
Determining Counting Questions

The chair of the recount committee determines counting questions in accordance with the Code. [See Sec. 65.009; see also the current Qualifying Voters on Election Day Handbook for Election Judges and Clerks for detailed counting rules]. If the recount supervisor is present, he or she may exercise the authority of the chair. The chair must prepare a written statement of the reasons for rejecting a particular ballot, and place the rejected ballots in a separate container. [Secs. 213.006 & 213.002].
Effect on Canvass

A request for a recount does not delay the canvass, but the canvassing authority must make a note on the canvass that a recount has been requested. [Sec. 212.033]. Submission of a recount petition delays the issuance of a certificate of election and qualification for the office involved in the recount pending completion of recount. Therefore, no candidate, including a candidate for an unexpired term of office, may either receive a certificate of election or qualify for an office involved in a recount until the recount is finished. Nevertheless, this provision does not affect a candidate who has already received a certificate of election and qualified for an office before a recount petition involving that office is submitted. [Sec. 212.0331].
Reports and Notice of Outcome of Recount

Committee Report – The committee chair is responsible for creating a precinct-by-precinct report of the committee's count, and to deliver a copy of the report to the recount supervisor and one copy to the custodian of the election records. [Sec. 213.012]. The recount supervisor must promptly notify the recount coordinator of the result of the recount. [Sec. 213.054].
Supervisor’s Report – Upon receipt of the committee’s report, the recount supervisor shall prepare and sign a precinct-by-precinct report, using the report submitted by the recount committee and the original election returns for any precinct not counted by the committee. This report serves as the official statement of the vote count in the local canvassing authority’s jurisdiction. The supervisor shall deliver one copy of this report to the recount coordinator and one copy to the custodian of the election records. [Sec. 213.055].
After receiving the supervisor’s report, the recount coordinator shall determine the result of the recount and notify the petitioner, opposing candidates, and any other people entitled to notice under Section 212.032.

Canvass Following Recount

If the recount changes the number of votes, regardless of a change in the outcome, the canvassing authority must conduct a canvass for the office or measure involved as soon as practicable after completion of the recount, using the committee report in the supervisor’s possession. The new canvass is the official canvass for all purposes, including calculating the filing deadlines for an election contest. [Sec. 213.033].
If the canvassing board consists of more than 5 members, the presiding officer and four other members of the canvassing board may canvass the recount, if required to do so by the presiding officer. [Sec. 213.014].
For the canvass following an expedited recount, the recount coordinator may determine the outcome of the recount via a telephone call or fax received from the recount supervisor, rather than waiting for the supervisor’s written report, if waiting would delay the canvass and disrupt the orderly conduct of the runoff election [Sec. 213.058].

Automatic Recount [Ch. 216] [House Bill 3107 (87th Leg., RS, 2021)]

In an election requiring a plurality vote, if two or more candidates for the same office tie for the number of votes required to be elected, an automatic recount must be conducted before a second election can be held, unless the tying candidates cast lots to resolve the tie, or one of them decides to withdraw. [Ch. 216; Sec. 2.002(i)]. If the automatic recount resolves the tie, a second election need not be held.
In an election requiring a majority vote, if more than two candidates tie for the highest number of votes, or if two or more candidates tie for the second highest number of votes, an automatic recount must be conducted to determine who will be the runoff candidates, before resorting to casting lots in order to resolve the tie. [Sec. 2.023 (b) and (c)].
If the candidates in a runoff election tie, an automatic recount must be held before the tying candidates can cast lots to determine the winner.
In order to initiate an automatic recount, the presiding officer of the canvassing authority shall order the recount in the same manner as a recount petitioner as outlined in this petition except there is no deposit filed with the request. [Sec. 216.003].
The method of counting votes in an automatic recount is the same method of counting used in the election that resulted in the tie vote. [Sec. 216.004].
The costs of an automatic recount shall be paid by the political subdivision that is served by the presiding officer of the local canvassing authority. [Sec. 216.005].

Withdrawal of a Recount Petition

A recount petition may withdraw the petition for the recount by submitting a request to withdraw the petition to the recount coordinator. On receipt of the request, the recount coordinator shall immediately inform, by the most expeditious means possible, all parties who are entitled to receive notice the recount under Sec. 212.032 that the request has been submitted and the recount canceled. [Sec. 212.006]
After a recount petition has been withdraw, the petition may not petition again for a recount of that election.
The request for the withdrawal of a recount petition must be sworn to by the person requesting the withdrawal. The request must contain:
1. The identity of the office or measure for which the recount was requested;
2. The reason for the withdrawal;
3. A statement acknowledging that once the petition is withdrawn, the petition may not petition again for a recount of that election;
4. A statement acknowledging that the results of the canvass are official;
5. A statement acknowledging that money properly expended toward the holding of the recount before the request was submitted will be subtracted from the amount of the deposit that is refunded;
6. The signature of:
  1. The person requesting the withdrawal; or
  2. An agent of the person requesting the withdrawal; and
7. The printed name, address, and telephone number of the person requesting the withdrawal.

Frequently Asked Questions Regarding Recounts:

Q1. If an election results in a tie vote, do the results of the election need to be canvassed prior to an automatic recount being conducted?

A1. Yes. Prior to an automatic recount being conducted, the governing body must first canvass the results of the tie. [Secs. 2.002, 2.023, 2.028, Chapter 216]

Q2. Can the automatic recount be conducted the same day as the canvass?

A2. This depends. The recount supervisor must give “personal notice” to petitioner and all opposing candidates at least 18 hours before the recount is set to begin. This time period can be waived and the recount may start earlier if ALL persons entitled to the notice agree to start earlier. In order for an automatic recount to be ordered, a canvass of the election must first be conducted. [Secs. 213.009, 213.010]

Q3. If an automatic recount is conducted, do the candidates decide whether the automatic recount should be conducted manually or electronically?

A3. The method of counting votes in an automatic recount is the same method of counting used in the election that resulted in the tie vote. If the ballots were counted electronically on election day, then the ballots would be recounted electronically. However, if a candidate wants the recount to be conducted manually and not electronically, then the candidate must submit this in writing and it must be done prior to the automatic recount. [Secs. 212.001, 216.002] If the recount is conducted manually due to the candidate requesting this on their petition, then this would fill the requirements for the automatic recount and an electronic recount would not take place. An automatic recount does not allow for multiple recounts to be conducted.

Please note that if the candidate requests a recount themselves, and the recount does not change the outcome of the election (i.e. if the recount confirms the tie and does not resolve the tie in favor of either candidate), then that candidate would be responsible for the costs of the recount.

Q4. What if the candidates that tie each request by petition a manual and electronic recount, which procedure should be done conducted?

A4. The Code is silent on this procedure. However, if there is a manual and electronic recount requested by petition, then our office recommends that a manual recount be conducted.

Q5. Our political subdivision contracted with the county to conduct our election. May the county conduct the recount on behalf of the local political subdivision?

A5. No. A political subdivision may not transfer the duty of a recount to a county. The deposits and petition must be submitted to the presiding officer of the local canvassing authority and not the county. The presiding officer of each local canvassing authority having jurisdiction of election precincts included in recount must manager and supervise the recount for the precincts in that authority’s jurisdiction. [Sec. 213.001]

Q6. Would a deposit or petition filed with the county be valid if the recount is for an election for an office or measure of a local political subdivision?

A6. No. In order for a deposit or petition to be valid, it must be filed with the correct authority. If the deposit or petition was filed with the county for an election for an office or measure of a local political subdivision, the deposition and petition are not valid. [Secs. 212.026, 212.028]

Q7. Our political subdivision contracted with the county to conduct our election. Can the county canvass our results or order an automatic recount if there is a tie?

A7. Generally no. The Code provides that the governing body must canvass their results. The Code does not allow a transfer of canvass duties to a county. However, Section 271.011 of the Code authorizes a joint canvassing authority. If your joint election agreement designated a joint canvassing authority, please be advised that Section 212.026(b) of the Code requires the recount petition to be filed with the presiding officer of your regular canvassing authority. The Code states that an automatic recount can only be ordered by the governing body. The Code does not allow a transfer of an automatic recount to a county.

Q8. May a petition be amended?

A8. Yes. However, a petitioner may only amend the petition once. A petitioner may amend a recount petition to correct a defect, including a defect which includes an insufficient deposit. A correction of an improper deposit is considered an amendment of the petition.

An amended petition must be submitted to the recount coordinator not later than the deadline for submitting the petition or 5 p.m. of the second day after the date notice of the defect under Section 212.029 is received by the petitioner, whichever is later. If the amendment does not correct each defect in the petition of which the petitioner was notified, the recount coordinator shall reject the amended petition. The recount coordinator shall promptly notify the petitioner of each remaining defect and shall enter on the amended petition a description of each defect and the date of notice. A petition may not be amended more than once under this section.

Q9. A petitioner submitted an amended petition or deposit to the correct authority who subsequently discovers a defect on the amended petition. The defect on the amended petition was present in the initial petition which was filed but the petitioner was not notified of the defect prior to filing the amended petition. May the filing authority reject the petition or deposit?

A9. No, the filing authority may not reject the petition or deposit. Just as a candidate/requestor gets one chance to amend the petition, the governing body gets one chance to reject the petition/deposit. [Sec. 212.030]

Q10. Must a petitioner provide a deposit for the full amount of the recount?

A10. The petitioner must file the petition with a deposit which includes the full amount of the recount. The petitioner may request that the recount begin with the counting of ballots cast by mail or ballots cast in person during early voting. The petitioner may then withdraw the petition after those ballots have been counted. can ask to begin with the mail ballots and then withdraw the petition if nothing changes there. Note that a proper withdrawal must comply with Section 212.006 of the Code. Further, after a recount petition has been withdrawn, the petitioner may not petition again for a recount of that election.

Q11. How is the deposit for a county who participates in the countywide polling place program calculated?

A11. The deposit is based in part on the number of election day polling places used or voter registration precincts. Early voting ballots are considered to be one additional polling place or voter registration precinct. The petitioner should determine the total number of voter registration precincts that contained the race or measure that is the subject of the recount and compare that number to the total number of election day polling places used in the election, then include one additional polling place or voter registration precinct to that number (for early voting ballots) in order to determine the total deposit due.

Q12. If there is a tie vote between candidates, is there a way for the tie vote to be resolved before the automatic recount is conducted?

A12. Yes. Section 2.002 of the Election Code governs tie votes for candidates. In an election requiring a plurality vote, if two or more candidates for the same office tie for the number of votes required to be elected (based on official canvassed results), a second election to fill the office shall be held. However, before the second election is ordered, the tying candidates may agree to cast lots or withdraw to resolve the tie. 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 Texas Election Code before the second election is held.

Q13. Do 25 different people have to sign the petition for a measure in order to conduct a recount?

A13. No, all 25 people individuals do not need to sign the petition. Pursuant to Section 212.001(6) of the Election Code, a petition for a recount must be signed by the person requesting the recount or, if there is more than one, any one or more of them. The petition may also be signed by an agent of the person requesting the recount.

The 25 persons acting jointly need to provide (for each of the 25) their name, residence address, voter registration number (if authorization to obtain the recount is based on eligibility to vote in the election), and county of registration (if the election covers territory in more than one county). The requestors must designate an agent who is a resident of this state to receive notice under this title on behalf of the persons requesting the recount if there is more than one person requesting the recount; and state the mailing address and at least one telephone number, if any, at which the person requesting the recount or an agent, identified by name, may receive notice given under this title. Sec. 212.001(7)-(9). We note that in order to provide a more condensed form, the official recount form provided by the Secretary of State’s office did not include 25 spaces. The requestors may use the officially prescribed form (PDF) as a template or add a page.

Q14. A recount petition for a measure election was filed by 25 persons acting jointly under Section 212.024 of the Election Code. The 25 persons pooled several checks together to pay for the required deposit when the petition was filed. Is this permitted?

A14. Yes, this is permitted. The deposit must be in the form of cash, cashier's check, or money order made payable to the recount coordinator and must accompany the petition per Section 212.111 of the Code. A personal check cannot be used for a recount. However, as long as the deposit is in a form or forms authorized by the Election Code, and the total amount is correct, there can be more than one cashier’s check or money order, or a combination of those and cash. Please note that courts tend to construe ambiguity in favor of petitioners and those requesting a recount. As such, it is not necessary to make the deposit rule stricter than it needs to be.

Example:		Jane Doe	2000
		John Doe	1850
		difference	150
	10% of 2000 is 200, therefore, John may request a recount;