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§ 1.001. SHORT TITLE. This code may be cited as the Election Code.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 1.002. APPLICABILITY OF CODE. (a) This code applies to all general, special, and primary elections held in this state.
(b) This code supersedes a conflicting statute outside this code unless this code or the outside statute expressly provides otherwise.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 1.003. CONSTRUCTION OF CODE. (a) The Code Construction Act (Chapter 311, Government Code) applies to the construction of each provision in this code, except as otherwise expressly provided by this code.
(b) When a provision of this code provides that it supersedes another specifically referenced provision of this code to the extent of any conflict, no conflict is created by the failure of the superseding provision, or of related provisions, to repeat the substance of the referenced provision; rather, a conflict exists only if the substance of the superseding and any related provisions is irreconcilable with the substance of the referenced provision. If the substance of the superseding provision, together with any related provisions, and the substance of the referenced provision can each be applied to the same subject or set of circumstances, both provisions shall be given effect.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1987, 70th Leg., ch. 54, § 17, eff. Sept. 1, 1987.
§ 1.004. INTERNAL REFERENCES. In this code: (1) a reference to a title, chapter, or section without further identification is a reference to a title, chapter, or section of this code; and
(2) a reference to a subtitle, subchapter, subsection, subdivision, paragraph, or other numbered or lettered unit without further identification is a reference to a unit of the next larger unit of this code in which the reference appears.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 1.005. DEFINITIONS. In this code: (1) "City secretary" includes a city clerk or, in a city that has no city secretary or clerk, the city officer who performs the duties of a city secretary.
(2) "County election precinct" means an election precinct established under Section 42.001.
(3) "County office" means an office of the county government that is voted on countywide.
(4) "District office" means an office of the federal or state government that is not voted on statewide.
(5) "Final canvass" means the canvass from which the official result of an election is determined.
(6) "General election" means an election, other than a primary election, that regularly recurs at fixed dates.
(7) "General election for state and county officers" means the general election at which officers of the federal, state, and county governments are elected.
(8) "Gubernatorial general election" means the general election held every four years to elect a governor for a full term.
(9) "Independent candidate" means a candidate in a nonpartisan election or a candidate in a partisan election who is not the nominee of a political party.
(10) "Law" means a constitution, statute, city charter, or city ordinance. (11) "Local canvass" means the canvass of the precinct election returns. (12) "Measure" means a question or proposal submitted in an election for an expression of the voters' will.
(13) "Political subdivision" means a county, city, or school district or any other governmental entity that:
(A) embraces a geographic area with a defined boundary; (B) exists for the purpose of discharging functions of government; and (C) possesses authority for subordinate self-government through officers selected by it.
(14) "Primary election" means an election held by a political party under Chapter 172 to select its nominees for public office, and, unless the context indicates otherwise, the term includes a presidential primary election.
(15) "Proposition" means the wording appearing on a ballot to identify a measure.
(16) "Registered voter" means a person registered to vote in this state whose registration is effective.
(17) "Residence address" means the street address and any apartment number, or the address at which mail is received if the residence has no address, and the city, state, and zip code that correspond to a person's residence.
(18) "Special election" means an election that is not a general election or a primary election.
(19) "Statewide office" means an office of the federal or state government that is voted on statewide.
(20) "Straight-party vote" means a vote by a single mark, punch, or other action by the voter for all the nominees of one political party and for no other candidates.
(21) "Uniform election date" means an election date prescribed by Section 41.001.
(22) "Voting station" means the voting booth or other place where voters mark their ballots or otherwise indicate their votes at a polling place.
(23) "Voting year" means the 12-month period beginning January 1 of each year.
(24) "Presidential primary election" means an election held under Subchapter A, Chapter 191, at which a political party's voters are given an opportunity to express their preferences for the party's presidential candidates, or for an "uncommitted" status if provided by party rule, for the purpose of determining the allocation of the party's delegates from this state to the party's national presidential nominating convention.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1986, 69th Leg., 3rd C.S., ch. 14, § 2, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 436, § 9, eff. Sept. 1, 1989; Acts 1987, 70th Leg., ch. 472, § 52, eff. Sept. 1, 1989.
§ 1.006. EFFECT OF WEEKEND OR HOLIDAY. (a) If the last day for performance of an act is a Saturday, Sunday, or legal state or national holiday, the act is timely if performed on the next regular business day, except as otherwise provided by this code.
(b) If the last day for performance of an act is extended under Subsection (a), the extended date is used to determine any other dates and deadlines, and the dates or times of any related procedures, that are expressly required to be made on a date or at a time determined in relation to the last day for performance of the act.
(c) A declaration of ineligibility of a candidate is considered to be the performance of an act under this section for purposes of causing the candidate's name to be omitted from the ballot.
(d) The filing of a document, including a withdrawal request or resignation, is considered to be the performance of an act under this section for purposes of creating a vacancy to be filled at a subsequent election.
(e) The death of a person is not considered to be the performance of an act under this section.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 2003, 78th Leg., ch. 1316, § 1, eff. Sept. 1, 2003.
§ 1.007. DELIVERING, SUBMITTING, AND FILING DOCUMENTS. (a) When this code provides for the delivery, submission, or filing of an application, notice, report, or other document or paper with an authority having administrative responsibility under this code, a delivery, submission, or filing with an employee of the authority at the authority's usual place for conducting official business constitutes filing with the authority.
(b) The authority to whom a delivery, submission, or filing is required by this code to be made may accept the document or paper at a place other than the authority's usual place for conducting official business.
(c) A delivery, submission, or filing of a document or paper under this code may be made by personal delivery, mail, or any other method of transmission.
(d) Any other provision of this code supersedes this section to the extent of any conflict.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1997, 75th Leg., ch. 864, § 1, eff. Sept. 1, 1997.
§ 1.008. TIMELINESS OF ACTION BY MAIL. When this code requires an application, notice, report, or other document or paper to be delivered, submitted, or filed within a specified period or before a specified deadline, a delivery, submission, or filing by first-class United States mail is timely, except as otherwise provided by this code, if:
(1) it is properly addressed with postage prepaid; and (2) it bears a post office cancellation mark indicating a time within the period or before the deadline, or if the person required to take the action furnishes satisfactory proof that it was deposited in the mail within the period or before the deadline.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 1.009. TIME OF RECEIPT OF MAILED DOCUMENT. (a) When this code provides that an application, notice, or other document or paper that is delivered, submitted, or filed by mail is considered to be delivered, submitted, or filed at the time of its receipt by the appropriate authority, the time of receipt is the time at which a post office employee:
(1) places it in the actual possession of the authority or the authority's agent; or
(2) deposits it in the authority's mailbox or at the usual place of delivery for the authority's official mail.
(b) If the authority cannot determine the time at which a deposit under Subsection (a)(2) occurred or whether it occurred before a specified deadline, the deposit is considered to have occurred at the time the mailbox or usual place of mail delivery, as applicable, was last inspected for removal of mail.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1997, 75th Leg., ch. 864, § 2, eff. Sept. 1, 1997.
§ 1.010. AVAILABILITY OF OFFICIAL FORMS. (a) The office, agency, or other authority with whom this code requires an application, report, or other document or paper to be submitted or filed shall make printed forms for that purpose, as officially prescribed, readily and timely available.
(b) The authority shall furnish forms in a reasonable quantity to a person requesting them for the purpose of submitting or filing the document or paper.
(c) The forms shall be furnished without charge, except as otherwise provided by this code.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 1.011. SIGNING DOCUMENT BY WITNESS. (a) When this code requires a person to sign an application, report, or other document or paper, except as otherwise provided by this code, the document or paper may be signed for the person by a witness, as provided by this section, if the person required to sign cannot do so because of a physical disability or illiteracy.
(b) The person who cannot sign must affix the person's mark to the document or paper, which the witness must attest. If the person cannot make the mark, the witness must state that fact on the document or paper.
(c) The witness must state on the document or paper the name, in printed form, of the person who cannot sign.
(d) The witness must affix the witness's own signature to the document or paper and state the witness's own name, in printed form, near the signature. The witness must also state the witness's residence address unless the witness is an election officer, in which case the witness must state the witness's official title.
(e) The procedure prescribed by this section must be conducted in the presence of the person who cannot sign.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1997, 75th Leg., ch. 864, § 3, eff. Sept. 1, 1997.
§ 1.012. PUBLIC INSPECTION OF ELECTION RECORDS. (a) Subject to Subsection (b), an election record that is public information shall be made available to the public during the regular business hours of the record's custodian.
(b) For the purpose of safeguarding the election records or economizing the custodian's time, the custodian may adopt reasonable rules limiting public access.
(c) Except as otherwise provided by this code or Chapter 552, Government Code, all election records are public information.
(d) In this code, "election record" includes: (1) anything distributed or received by government under this code; (2) anything required by law to be kept by others for information of government under this code; or
(3) a certificate, application, notice, report, or other document or paper issued or received by government under this code.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1993, 73rd Leg., ch. 728, § 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 5.95(88), eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 393, § 1, eff. Sept. 1, 2003.
§ 1.013. DESTRUCTION OF RECORDS. After expiration of the prescribed period for preserving voted ballots, election returns, other election records, or other records that are preserved under this code, the records may be destroyed or otherwise disposed of unless, at the expiration of the preservation period, an election contest or a criminal investigation or proceeding in connection with an election to which the records pertain is pending. In that case, the records shall be preserved until the contest, investigation, or proceeding is completed and the judgment, if any, becomes final.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 1.014. ELECTION EXPENSES. (a) Except as otherwise provided by law, the expenses incurred in the conduct of a general or special election shall be paid by the political subdivision served by the authority ordering the election.
(b) Each county in the territory covered by an election ordered by the governor shall pay the expenses incurred in that particular county in the conduct of the election.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 1.015. RESIDENCE. (a) In this code, "residence" means domicile, that is, one's home and fixed place of habitation to which one intends to return after any temporary absence.
(b) Residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code.
(c) A person does not lose the person's residence by leaving the person's home to go to another place for temporary purposes only.
(d) A person does not acquire a residence in a place to which the person has come for temporary purposes only and without the intention of making that place the person's home.
(e) A person who is an inmate in a penal institution or who is an involuntary inmate in a hospital or eleemosynary institution does not, while an inmate, acquire residence at the place where the institution is located.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1997, 75th Leg., ch. 864, § 4, eff. Sept. 1, 1997.
§ 1.016. COMPUTATION OF AGE. A person attains a specified age on the day before the anniversary of the person's birthday.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 1.017. INELIGIBILITY NO DEFENSE TO PROSECUTION. It is no defense to prosecution under this code that a person who receives an official ballot is ineligible to vote in the election for which the ballot is received.
Added by Acts 2003, 78th Leg., ch. 393, § 2, eff. Sept. 1, 2003.
§ 1.018. APPLICABILITY OF PENAL CODE. In addition to Section 1.03, Penal Code, and to other titles of the Penal Code that may apply to this code, Title 4, Penal Code, applies to offenses prescribed by this code.
Added by Acts 2003, 78th Leg., ch. 393, § 2, eff. Sept. 1, 2003.
§ 1.019. REQUIRED EVIDENCE OR TESTIMONY. (a) A party to an offense under this code may be required to furnish evidence or testimony about the offense.
(b) Evidence or testimony required to be furnished under this section, or information directly or indirectly derived from that evidence or testimony, may not be used against the party providing the evidence or testimony in a criminal case except for a prosecution of aggravated perjury or contempt.
Added by Acts 2003, 78th Leg., ch. 393, § 2, eff. Sept. 1, 2003. § 2.001. PLURALITY VOTE REQUIRED. Except as otherwise provided by law, to be elected to a public office, a candidate must receive more votes than any other candidate for the office.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 2.002. TIE VOTE. (a) Except as provided by Subsection (f), (g), or (i), 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, a second election to fill the office shall be held.
(b) Not later than the fifth day after the date the automatic recount required by Subsection (i) is completed or the final canvass following the automatic recount is completed, if applicable, the authority responsible for ordering the first election shall order the second election. The second election shall be held not earlier than the 20th day or later than the 30th day after the date the automatic recount required by Subsection (i) is completed or the final canvass following the automatic recount is completed, if applicable.
(c) The names of the tying candidates only shall be printed on the ballot for the second election. Write-in votes are not permitted. If either of the candidates is a party nominee, the title of the office shall be listed on the ballot in a vertical column with the name of each candidate listed below the office title with each candidate's political party alignment next to the name.
(d) The order of the candidates' names on the ballot shall be determined by a drawing in accordance with Section 52.094.
(e) Notice of the second election shall be given in accordance with Chapter 4 except that a notice under Section 4.003(a)(2) or (b) must be posted not later than the 15th day before election day.
(f) The tying candidates may agree to cast lots to resolve the tie. The agreement must be filed with the authority responsible for ordering the election. That authority or, if the authority is a body, the body's presiding officer, shall supervise the casting of lots.
(g) A tying candidate may resolve the tie by filing with the authority described by Subsection (f) a written statement of withdrawal signed and acknowledged by the candidate. On receipt of the statement of withdrawal, the remaining candidate is the winner, and a second election or casting of lots is not held.
(h) This section does not apply to elective offices of the executive department specified by Article IV, Section 1, of the Texas Constitution.
(i) If the tie vote is not resolved under Subsection (f) or (g), an automatic recount shall be conducted in accordance with Chapter 216 before the second election is held. If the recount resolves the tie, the second election is not held.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1997, 75th Leg., ch. 1349, § 1, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 851, § 1, eff. Sept. 1, 2001.
SUBCHAPTER B. RUNOFF ELECTION
§ 2.021. RUNOFF ELECTION REQUIRED. If no candidate for a particular office receives the vote necessary to be elected in an election requiring a majority vote, a runoff election for that office is required.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 2.022. CONFLICTS WITH OTHER LAW. (a) Except as provided by Subsection (b), a law outside this subchapter supersedes this subchapter to the extent of any conflict.
(b) Sections 2.023 and 2.028 supersede a law outside this subchapter to the extent of any conflict.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 2003, 78th Leg., ch. 652, § 1, eff. Sept. 1, 2003.
§ 2.023. RUNOFF CANDIDATES. (a) Except as provided by Subsections (b) and (c), the candidates in a runoff election are the candidates who receive the highest and second highest number of votes in the main election or who tie for the highest number of votes.
(b) If more than two candidates tie for the highest number of votes in the main election, an automatic recount shall be conducted in accordance with Chapter 216. If the recount does not resolve the tie, the tied candidates shall cast lots to determine which two are to be the runoff candidates.
(c) If two or more candidates tie for the second highest number of votes in the main election, an automatic recount shall be conducted in accordance with Chapter 216. If the recount does not resolve the tie, the tied candidates shall cast lots to determine which one is to be the second candidate in the runoff election.
(d) The presiding officer of the final canvassing authority for the election shall supervise the casting of lots under this section.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 2003, 78th Leg., ch. 652, § 2, eff. Sept. 1, 2003.
§ 2.024. ORDERING RUNOFF. Not later than the fifth day after the date the final canvass of the main election is completed, the authority responsible for ordering the main election shall order the runoff election.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 2.025. RUNOFF ELECTION DAY. (a) Except as otherwise provided by this code, a runoff election shall be held not earlier than the 20th or later than the 45th day after the date the final canvass of the main election is completed.
(b) A runoff election date later than the period prescribed by Subsection (a) may be prescribed by a home-rule city charter.
(c) This section supersedes a law outside this subchapter to the extent of a conflict notwithstanding Section 2.022.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1987, 70th Leg., 2nd C.S., ch. 60, § 2, eff. Oct. 20, 1987; Acts 1991, 72nd Leg., ch. 389, § 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 728, § 2, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 1316, § 2, eff. Sept. 1, 2003.
§ 2.026. NOTICE OF RUNOFF. Notice of a runoff election shall be given in accordance with Chapter 4 except that a notice under Section 4.003(a)(2) or (b) must be posted not later than the 15th day before election day.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 2.027. CERTIFICATION OF RUNOFF CANDIDATES. The presiding officer of the final canvassing authority shall certify in writing for placement on a runoff election ballot the names of the runoff candidates and shall deliver the certification to the authority responsible for having the official ballot prepared.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 2.028. TIE VOTE IN RUNOFF. (a) Except as provided by Subsection (c), if the candidates in a runoff election tie, an automatic recount shall be conducted in accordance with Chapter 216. If the recount does not resolve the tie, the tied candidates shall cast lots to determine the winner.
(b) The presiding officer of the final canvassing authority shall supervise the casting of lots under this section.
(c) A tying candidate may resolve the tie by filing with the presiding officer of the final canvassing authority a written statement of withdrawal signed and acknowledged by the candidate. On receipt of the statement of withdrawal, the remaining candidate is the winner, and a casting of lots is not held.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1997, 75th Leg., ch. 1349, § 2, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 652, § 3, eff. Sept. 1, 2003.
SUBCHAPTER C. ELECTION OF UNOPPOSED CANDIDATE
§ 2.051. APPLICABILITY OF SUBCHAPTER. (a) Except as provided by Sections 2.055 and 2.056, this subchapter applies only to an election for officers of a political subdivision other than a county in which write-in votes may be counted only for names appearing on a list of write-in candidates and in which:
(1) each candidate for an office that is to appear on the ballot is unopposed, except as provided by Subsection (b); and
(2) no proposition is to appear on the ballot. (b) In the case of an election in which any members of the political subdivision's governing body are elected from territorial units such as single-member districts, this subchapter applies to the election in a particular territorial unit if each candidate for an office that is to appear on the ballot in that territorial unit is unopposed and no at-large proposition or opposed at-large race is to appear on the ballot. This subchapter applies to an unopposed at-large race in such an election regardless of whether an opposed race is to appear on the ballot in a particular territorial unit.
Added by Acts 1995, 74th Leg., ch. 667, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1349, § 3, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 17, § 1, eff. Jan. 1, 2002; Acts 2003, 78th Leg., ch. 1061, § 1, eff. Sept. 13, 2003; Acts 2003, 78th Leg., ch. 1316, § 3, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 1107, § 1.01, eff. Sept. 1, 2005.
§ 2.052. CERTIFICATION OF UNOPPOSED STATUS. (a) The authority responsible for having the official ballot prepared shall certify in writing that a candidate is unopposed for election to an office if, were the election held, only the votes cast for that candidate in the election for that office may be counted.
(b) The certification shall be delivered to the governing body of the political subdivision as soon as possible after the filing deadlines for placement on the ballot and list of write-in candidates.
Added by Acts 1995, 74th Leg., ch. 667, § 1, eff. Sept. 1, 1995. Amended by Acts 2005, 79th Leg., ch. 1107, § 1.02, eff. Sept. 1, 2005.
§ 2.053. ACTION ON CERTIFICATION. (a) On receipt of the certification, the governing body of the political subdivision by order or ordinance may declare each unopposed candidate elected to the office.
(b) If a declaration is made under Subsection (a), the election is not held. A copy of the order or ordinance shall be posted on election day at each polling place that would have been used in the election.
(c) A certificate of election shall be issued to each candidate in the same manner and at the same time as provided for a candidate elected at the election. The candidate must qualify for the office in the same manner as provided for a candidate elected at the election.
Added by Acts 1995, 74th Leg., ch. 667, § 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 1316, § 4, eff. Sept. 1, 2003.
§ 2.054. COERCION AGAINST CANDIDACY PROHIBITED. (a) A person commits an offense if by intimidation or by means of coercion the person influences or attempts to influence a person to not file an application for a place on the ballot or a declaration of write-in candidacy in an election that may be subject to this subchapter.
(b) In this section, "coercion" has the meaning assigned by Section 1.07, Penal Code.
(c) An offense under this section is a Class A misdemeanor unless the intimidation or coercion is a threat to commit a felony, in which event it is a felony of the third degree.
Added by Acts 1995, 74th Leg., ch. 667, § 1, eff. Sept. 1, 1995.
§ 2.055. SPECIAL ELECTION TO FILL VACANCY IN LEGISLATURE. (a) The secretary of state may declare an unopposed candidate elected to fill a vacancy in the legislature if:
(1) each candidate for an office that is to appear on the ballot is unopposed; and
(2) no proposition is to appear on the ballot. (b) If a declaration is made under Subsection (a), the election is not held. A copy of the declaration shall be posted on election day at each polling place that would have been used in the election.
(c) The secretary of state shall issue a certificate of election to each candidate in the same manner as provided for a candidate elected at the election.
Added by Acts 2001, 77th Leg., ch. 17, § 2, eff. Jan. 1, 2002. Amended by Acts 2005, 79th Leg., ch. 1107, § 1.03, eff. Sept. 1, 2005.
§ 2.056. UNOPPOSED CANDIDATE FOR OFFICE OF STATE OR COUNTY GOVERNMENT. (a) In this section:
(1) "Certifying authority" means: (A) the secretary of state, for a statewide or district office; or (B) the county clerk, for a county or precinct office. (2) "Office of the state or county government" means an office described by Section 52.092(a)(2) or (3).
(b) This section applies only to the general election for state and county officers.
(c) A certifying authority may declare a candidate elected to an office of the state or county government if, were the election held, only the votes cast for that candidate in the election for that office may be counted.
(d) If a declaration is made under Subsection (c): (1) the election for that office is not held; and (2) the name of the candidate is listed on the ballot as elected to the office as provided by this section.
(e) The offices and names of any candidates declared elected under this section shall be listed separately after the contested races in the election under the heading "Unopposed Candidates Declared Elected." The candidates shall be grouped according to their respective political party affiliations or status as independents in the same relative order prescribed for the ballot generally. No votes are cast in connection with the candidates.
(f) The secretary of state by rule may prescribe any additional procedures as necessary to accommodate a particular voting system or ballot style and to facilitate the efficient and cost-effective implementation of this section.
(g) The certifying authority shall issue a certificate of election to a candidate declared elected under this section in the same manner as provided for a candidate elected at the election.
Added by Acts 2003, 78th Leg., ch. 1061, § 2, eff. Sept. 13, 2003. Amended by Acts 2005, 79th Leg., ch. 1107, § 1.04, eff. Sept. 1, 2005. § 3.001. ORDER REQUIRED. Each general and special election shall be ordered as provided by this chapter.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 3.002. CONFLICTS WITH OTHER LAW. A law outside this chapter supersedes this chapter to the extent of any conflict.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 3.003. ELECTION ORDERED BY GOVERNOR. (a) The governor shall order: (1) each general election for officers of the state government, members of the United States Congress, and electors for president and vice-president of the United States;
(2) each election on a proposed constitutional amendment; and (3) each special election to fill a vacancy in the legislature or in congress.
(b) The order shall be made by proclamation. (c) Not later than the 36th day before election day, a copy of the proclamation ordering an election shall be mailed to the county judge of each county wholly or partly in the territory covered by the election.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 3.004. ELECTION OF POLITICAL SUBDIVISION. (a) The following authority shall order an election:
(1) the county judge, for the general election for officers of the county government;
(2) the mayor, for the general election for city officers in a city with a population of 1.9 million or more; and
(3) the governing body of a political subdivision, other than a county or a city described by Subdivision (2), that has elective offices, for the general election for those officers.
(b) If a law providing for an election relating to the affairs of a political subdivision does not designate the authority responsible for ordering the election, the governing body of the political subdivision shall order the election.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 2001, 77th Leg., ch. 340, § 1, eff. Sept. 1, 2001.
§ 3.005. TIME FOR ORDERING ELECTION. (a) Except as provided by Subsection (c), an election ordered by an authority of a political subdivision shall be ordered not later than the 62nd day before election day.
(b) This section supersedes a law outside this code to the extent of any conflict.
(c) For an election to be held on the date of the general election for state and county officers, the election shall be ordered not later than the 70th day before election day.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 2003, 78th Leg., ch. 925, § 1, eff. Nov. 1, 2003; Acts 2005, 79th Leg., ch. 1109, § 2, eff. Sept. 1, 2005.
§ 3.006. CONTENTS OF ELECTION ORDER. In addition to any other elements required to be included in an election order by other law, each election order must state the date of the election and the offices or measures to be voted on at the election.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 3.007. FAILURE TO ORDER GENERAL ELECTION. Failure to order a general election does not affect the validity of the election.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 3.008. PRESERVATION OF ELECTION ORDER. (a) The authority ordering an election shall preserve the order, proclamation, or other document ordering the election for the period for preserving the precinct election records.
(b) For an election ordered by an authority of a political subdivision, the date and nature of each election shall be entered in the official records of the political subdivision's governing body. For an election on a measure, the entry must include a description of the measure.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. § 4.001. NOTICE REQUIRED. Notice of each general and special election shall be given as provided by this chapter.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 4.002. AUTHORITY RESPONSIBLE FOR GIVING NOTICE. Except as otherwise provided by law, the following authority shall give notice of an election:
(1) the county judge of each county wholly or partly in the territory covered by the election, for an election ordered by the governor;
(2) the presiding officer of the governing body of a political subdivision, for an election ordered by the presiding officer or the governing body; and
(3) the authority ordering the election, for an election ordered by any other authority.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 4.003. METHOD OF GIVING NOTICE. (a) Except as provided by Subsection (c), notice of an election must be given by any one or more of the following methods:
(1) by publishing the notice at least once, not earlier than the 30th day or later than the 10th day before election day:
(A) in a newspaper published in the territory that is covered by the election and is in the jurisdiction of the authority responsible for giving the notice; or
(B) in a newspaper of general circulation in the territory if none is published in the jurisdiction of the authority responsible for giving the notice;
(2) by posting, not later than the 21st day before election day, a copy of the notice at a public place in each election precinct that is in the jurisdiction of the authority responsible for giving the notice; or
(3) by mailing, not later than the 10th day before election day, a copy of the notice to each registered voter of the territory that is covered by the election and is in the jurisdiction of the authority responsible for giving the notice.
(b) In addition to any other notice given for an election under Subsection (a), not later than the 21st day before election day, the authority responsible for giving notice of the election shall post a copy of the notice, which must include the location of each polling place, on the bulletin board used for posting notices of the meetings of the governing body of the political subdivision that the authority serves. For each precinct that is combined to form a consolidated precinct under Section 42.008, not later than the 10th day before election day, the authority shall also post, at the polling place used in the preceding general election, notice of the precinct's consolidation and the location of the polling place in the consolidated precinct. A notice posted under this subsection must remain posted continuously through election day.
(c) In addition to any other notice given, notice of an election ordered by a commissioners court or by an authority of a city or school district must be given by the method prescribed by Subsection (a)(1).
(d) If other law prescribes the method of giving notice of an election, that law supersedes this section, except that Subsection (c) applies regardless of the notice requirements prescribed by other law with respect to an election covered by that subsection.
(e) The authority responsible for giving notice of the election shall deliver to the secretary of state a copy of the notice of a consolidated precinct required by Subsection (b) not later than the date of the election.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1987, 70th Leg., ch. 479, § 1, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 114, § 1, eff. Sept. 1, 1989.
§ 4.004. CONTENTS OF NOTICE. (a) The notice of a general or special election must state:
(1) the nature and date of the election; (2) except as provided by Subsection (c), the location of each polling place;
(3) the hours that the polls will be open; and (4) any other information required by other law. (b) The notice of a special election must also state each office to be filled or the proposition stating each measure to be voted on. This subsection does not apply to an election on a proposed constitutional amendment.
(c) If notice of an election is given by posting the notice in the various election precincts, the notice posted in a precinct is not required to state the location of the polling places in other precincts.
(d) If precincts are consolidated under Section 42.008, the notice must state which precincts have been combined to form each consolidated precinct in addition to the locations of the polling places in the consolidated precincts.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1987, 70th Leg., ch. 479, § 2, eff. Sept. 1, 1987.
§ 4.005. RECORD OF NOTICE. (a) If notice of an election is given by publication, the authority responsible for giving the notice shall retain a copy of the published notice that contains the name of the newspaper and the date of publication.
(b) For each notice posted under Section 4.003(a)(2) or (b), the person posting the notice shall make a record at the time of posting stating the date and place of posting. The person shall sign the record and deliver it to the authority responsible for giving the election notice after the last posting is made.
(c) If notice of an election is given under Section 4.003(a)(3), the authority responsible for giving the notice shall:
(1) retain a copy of the notice and enter on the copy the date or dates the mailing occurred; and
(2) prepare a list of the names and addresses of the persons to whom the notice was mailed.
(d) The authority responsible for giving the election notice shall preserve the records required by this section for the period for preserving the precinct election records.
(e) If other law prescribes the method of preserving the notice of an election, that law supersedes this section.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1989, 71st Leg., ch. 2, § 7.01, eff. Aug. 28, 1989.
§ 4.006. FAILURE TO GIVE NOTICE OF GENERAL ELECTION. Failure to give notice of a general election does not affect the validity of the election.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 4.007. NOTICE TO ELECTION JUDGE. Not later than the 15th day before election day or the seventh day after the date the election is ordered, whichever is later, the authority responsible for giving notice of the election shall deliver to the presiding judge of each election precinct in which the election is to be held in the authority's jurisdiction a written notice of:
(1) the nature and date of the election; (2) the location of the polling place for the precinct served by the judge;
(3) the hours that the polls will be open; (4) the judge's duty to hold the election in the precinct specified by the notice; and
(5) the maximum number of clerks that the judge may appoint for the election.
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.
§ 4.008. NOTICE TO COUNTY CLERK. The governing body of a political subdivision, other than a county, that orders an election shall deliver notice of the election to the county clerk of each county in which the political subdivision is located not later than the 60th day before election day.
Added by Acts 2005, 79th Leg., ch. 1107, § 1.05, eff. Sept. 1, 2005. § 1.01. SHORT TITLE. This code shall be known and may be cited as the Penal Code.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 1.02. OBJECTIVES OF CODE. The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate. To this end, the provisions of this code are intended, and shall be construed, to achieve the following objectives:
(1) to insure the public safety through: (A) the deterrent influence of the penalties hereinafter provided; (B) the rehabilitation of those convicted of violations of this code; and
(C) such punishment as may be necessary to prevent likely recurrence of criminal behavior;
(2) by definition and grading of offenses to give fair warning of what is prohibited and of the consequences of violation;
(3) to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders;
(4) to safeguard conduct that is without guilt from condemnation as criminal;
(5) to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, or convicted of offenses; and
(6) to define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 1.03. EFFECT OF CODE. (a) Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.
(b) The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.
(c) This code does not bar, suspend, or otherwise affect a right or liability to damages, penalty, forfeiture, or other remedy authorized by law to be recovered or enforced in a civil suit for conduct this code defines as an offense, and the civil injury is not merged in the offense.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 1.04. TERRITORIAL JURISDICTION. (a) This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which he is criminally responsible if:
(1) either the conduct or a result that is an element of the offense occurs inside this state;
(2) the conduct outside this state constitutes an attempt to commit an offense inside this state;
(3) the conduct outside this state constitutes a conspiracy to commit an offense inside this state, and an act in furtherance of the conspiracy occurs inside this state; or
(4) the conduct inside this state constitutes an attempt, solicitation, or conspiracy to commit, or establishes criminal responsibility for the commission of, an offense in another jurisdiction that is also an offense under the laws of this state.
(b) If the offense is criminal homicide, a "result" is either the physical impact causing death or the death itself. If the body of a criminal homicide victim is found in this state, it is presumed that the death occurred in this state. If death alone is the basis for jurisdiction, it is a defense to the exercise of jurisdiction by this state that the conduct that constitutes the offense is not made criminal in the jurisdiction where the conduct occurred.
(c) An offense based on an omission to perform a duty imposed on an actor by a statute of this state is committed inside this state regardless of the location of the actor at the time of the offense.
(d) This state includes the land and water and the air space above the land and water over which this state has power to define offenses.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 1.05. CONSTRUCTION OF CODE. (a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.
(b) Unless a different construction is required by the context, Sections 311.011, 311.012, 311.014, 311.015, and 311.021 through 311.032 of Chapter 311, Government Code (Code Construction Act), apply to the construction of this code.
(c) In this code: (1) a reference to a title, chapter, or section without further identification is a reference to a title, chapter, or section of this code; and
(2) a reference to a subchapter, subsection, subdivision, paragraph, or other numbered or lettered unit without further identification is a reference to a unit of the next-larger unit of this code in which the reference appears.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1985, 69th Leg., ch. 479, § 69, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 1.06. COMPUTATION OF AGE. A person attains a specified age on the day of the anniversary of his birthdate.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 1.07. DEFINITIONS. (a) In this code: (1) "Act" means a bodily movement, whether voluntary or involuntary, and includes speech.
(2) "Actor" means a person whose criminal responsibility is in issue in a criminal action. Whenever the term "suspect" is used in this code, it means "actor."
(3) "Agency" includes authority, board, bureau, commission, committee, council, department, district, division, and office.
(4) "Alcoholic beverage" has the meaning assigned by Section 1.04, Alcoholic Beverage Code.
(5) "Another" means a person other than the actor. (6) "Association" means a government or governmental subdivision or agency, trust, partnership, or two or more persons having a joint or common economic interest.
(7) "Benefit" means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.
(8) "Bodily injury" means physical pain, illness, or any impairment of physical condition.
(9) "Coercion" means a threat, however communicated: (A) to commit an offense; (B) to inflict bodily injury in the future on the person threatened or another;
(C) to accuse a person of any offense; (D) to expose a person to hatred, contempt, or ridicule; (E) to harm the credit or business repute of any person; or (F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action.
(10) "Conduct" means an act or omission and its accompanying mental state. (11) "Consent" means assent in fact, whether express or apparent. (12) "Controlled substance" has the meaning assigned by Section 481.002, Health and Safety Code.
(13) "Corporation" includes nonprofit corporations, professional associations created pursuant to statute, and joint stock companies.
(14) "Correctional facility" means a place designated by law for the confinement of a person arrested for, charged with, or convicted of a criminal offense. The term includes:
(A) a municipal or county jail; (B) a confinement facility operated by the Texas Department of Criminal Justice;
(C) a confinement facility operated under contract with any division of the Texas Department of Criminal Justice; and
(D) a community corrections facility operated by a community supervision and corrections department.
(15) "Criminal negligence" is defined in Section 6.03 (Culpable Mental States).
(16) "Dangerous drug" has the meaning assigned by Section 483.001, Health and Safety Code.
(17) "Deadly weapon" means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
(18) "Drug" has the meaning assigned by Section 481.002, Health and Safety Code.
(19) "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:
(A) induced by force, threat, or fraud; (B) given by a person the actor knows is not legally authorized to act for the owner;
(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or
(D) given solely to detect the commission of an offense. (20) "Electric generating plant" means a facility that generates electric energy for distribution to the public.
(21) "Electric utility substation" means a facility used to switch or change voltage in connection with the transmission of electric energy for distribution to the public.
(22) "Element of offense" means: (A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense. (23) "Felony" means an offense so designated by law or punishable by death or confinement in a penitentiary.
(24) "Government" means: (A) the state; (B) a county, municipality, or political subdivision of the state; or (C) any branch or agency of the state, a county, municipality, or political subdivision.
(25) "Harm" means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.
(26) "Individual" means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.
(27) "Institutional division" means the institutional division of the Texas Department of Criminal Justice.
(28) "Intentional" is defined in Section 6.03 (Culpable Mental States). (29) "Knowing" is defined in Section 6.03 (Culpable Mental States). (30) "Law" means the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute.
(31) "Misdemeanor" means an offense so designated by law or punishable by fine, by confinement in jail, or by both fine and confinement in jail.
(32) "Oath" includes affirmation. (33) "Official proceeding" means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.
(34) "Omission" means failure to act. (35) "Owner" means a person who: (A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; or
(B) is a holder in due course of a negotiable instrument. (36) "Peace officer" means a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214, Education Code, or other law.
(37) "Penal institution" means a place designated by law for confinement of persons arrested for, charged with, or convicted of an offense.
(38) "Person" means an individual, corporation, or association. (39) "Possession" means actual care, custody, control, or management. (40) "Public place" means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.
(41) "Public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties:
(A) an officer, employee, or agent of government; (B) a juror or grand juror; or (C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; or
(D) an attorney at law or notary public when participating in the performance of a governmental function; or
(E) a candidate for nomination or election to public office; or (F) a person who is performing a governmental function under a claim of right although he is not legally qualified to do so.
(42) "Reasonable belief" means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.
(43) "Reckless" is defined in Section 6.03 (Culpable Mental States). (44) "Rule" includes regulation. (45) "Secure correctional facility" means: (A) a municipal or county jail; or (B) a confinement facility operated by or under a contract with any division of the Texas Department of Criminal Justice.
(46) "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
(47) "Swear" includes affirm. (48) "Unlawful" means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.
(49) "Death" includes, for an individual who is an unborn child, the failure to be born alive.
(b) The definition of a term in this code applies to each grammatical variation of the term.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 912, ch. 342, § 1, eff. Sept. 1, 1975; Acts 1977, 65th Leg., p. 2123, ch. 848, § 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1113, ch. 530, § 1, eff. Aug. 27, 1979; Acts 1979, 66th Leg., p. 1520, ch. 655, § 1, eff. Sept. 1, 1979; Acts 1987, 70th Leg., ch. 167, § 5.01(a)(43), eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 997, § 1, eff. Aug. 28, 1989; Acts 1991, 72nd Leg., ch. 543, § 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 822, § 2.01, eff. Sept. 1, 2003.
§ 1.08. PREEMPTION. No governmental subdivision or agency may enact or enforce a law that makes any conduct covered by this code an offense subject to a criminal penalty. This section shall apply only as long as the law governing the conduct proscribed by this code is legally enforceable.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. § 2.01. PROOF BEYOND A REASONABLE DOUBT. All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 2.02. EXCEPTION. (a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."
(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.
(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 2.04. AFFIRMATIVE DEFENSE. (a) An affirmative defense in this code is so labeled by the phrase: "It is an affirmative defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.
(c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 2.05. PRESUMPTION. (a) Except as provided by Subsection (b), when this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:
(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:
(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;
(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;
(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and
(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.
(b) When this code or another penal law establishes a presumption in favor of the defendant with respect to any fact, it has the following consequences:
(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption, that:
(A) the presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist;
(B) if the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists;
(C) even though the jury may find that the presumed fact does not exist, the state must prove beyond a reasonable doubt each of the elements of the offense charged; and
(D) if the jury has a reasonable doubt as to whether the presumed fact exists, the presumption applies and the jury must consider the presumed fact to exist.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 912, ch. 342, § 2, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts 2005, 79th Leg., ch. 288, § 2, eff. Sept. 1, 2005. § 3.01. DEFINITION. In this chapter, "criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 387, § 1, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 3.02. CONSOLIDATION AND JOINDER OF PROSECUTIONS. (a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.
(b) When a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the state shall file written notice of the action not less than 30 days prior to the trial.
(c) If a judgment of guilt is reversed, set aside, or vacated, and a new trial ordered, the state may not prosecute in a single criminal action in the new trial any offense not joined in the former prosecution unless evidence to establish probable guilt for that offense was not known to the appropriate prosecuting official at the time the first prosecution commenced.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 3.03. SENTENCES FOR OFFENSES ARISING OUT OF SAME CRIMINAL EPISODE. (a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.
(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:
(1) an offense: (A) under Section 49.07 or 49.08, regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections;
(2) an offense: (A) under Section 21.11, 22.011, 22.021, 25.02, or 43.25 committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section; or
(3) an offense: (A) under Section 21.15 or 43.26, regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 596, § 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 667, § 2, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 527, § 1, eff. Sept. 1, 2005.
§ 3.04. SEVERANCE. (a) Whenever two or more offenses have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to a severance of the offenses.
(b) In the event of severance under this section, the provisions of Section 3.03 do not apply, and the court in its discretion may order the sentences to run either concurrently or consecutively.
(c) The right to severance under this section does not apply to a prosecution for offenses described by Section 3.03(b) unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses, in which event the judge may order the offenses to be tried separately or may order other relief as justice requires.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 667, § 3, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 527, § 2, eff. Sept. 1, 2005.
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