Sec. 212.034. COUNTING ERRORS AS GROUND FOR RECOUNT IN PAPER BALLOT PRECINCTS. (a) To obtain a recount on the ground of counting errors in election precincts in which paper ballots were used, a person must attach to the recount petition an affidavit or affidavits from one or more presiding judges of the election stating that certain votes cast for the office or measure, as applicable, were either counted or not counted, as appropriate, with a brief description of the circumstances involved. At the same time the recount petition is submitted to the recount coordinator, the petitioner must deliver a copy of the recount petition and each affidavit to each opposing candidate or to the campaign treasurer of each specific-purpose political committee that was involved in the election on the measure, as appropriate, and to the secretary of state. The copies must be delivered personally or by registered or certified mail, return receipt requested.

(b) The recount coordinator shall delay final action on a recount petition submitted with an attached affidavit under Subsection (a) pending receipt of the secretary of state's certification.

(c) Any opposing candidate or any person listed in Section 212.023(b), 212.0231, or 212.024(b), as appropriate, is entitled to submit to the secretary of state an affidavit contradicting statements made in an affidavit submitted by the petitioner. A contradicting affidavit must be received by the secretary of state not later than the third day after the date the copy of the recount petition and each affidavit is received by the secretary.

(d) A recount on the ground of counting errors may be obtained if the secretary of state determines from uncontradicted statements, based on undisputed facts, in an affidavit submitted by the petitioner and from the election returns that certain votes cast for the office or measure, as applicable, clearly were erroneously counted or not counted, as appropriate, and that without the errors the petitioner possibly would have received the vote necessary to gain or tie for nomination, election, or entitlement to a place on a runoff ballot or the petitioner's side on a measure possibly would have received the most votes, as applicable. The secretary may not make the determination if the facts are disputed or raise unresolved legal questions as to whether counting errors occurred.

(e) Not earlier than the fourth or later than the fifth day after the date the copy of the recount petition and each affidavit is received by the secretary of state, the secretary shall deliver written certification of whether grounds exist for obtaining a recount on the basis of counting errors to the recount coordinator and shall deliver a copy of the certification to the petitioner and to each opposing candidate or to the campaign treasurer of each specific-purpose political committee that was involved in the election on the measure, as appropriate.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. Amended by Acts 1986, 69th Leg., 3rd C.S., ch. 14, Sec. 33, eff. Sept. 1, 1987.