(a) Polling Place Preparation.
  (1) If using optical scan or regular paper ballots, the election judge shall set aside a sufficient number of regular ballots from the supply of official ballots and write or stamp "provisional" on the back of the ballot (referred to as "provisional ballots").
  (2) The election judge shall keep the provisional ballots separate from the regular ballots.
  (3) Provisional ballots may be cast electronically on a Direct Record Electronic (DRE) voting system if:
    (A) the system is one approved by the Secretary of State under Chapter 122 of the Code;
    (B) the system is adopted by the governing body of the political subdivision under §123.001 of the Code;
    (C) the system segregates provisional votes from regularly-cast votes on the precinct returns; and
    (D) the system provides a method for the cast provisional ballots to be accepted and added to the election results by the Early Voting Ballot Board or central counting station personnel, as applicable.
  (4) The election judge shall prepare the DRE voting system for provisional voting in accordance with instructions provided by the general custodian of election records, which may include the instructions of the vendor of the system.
(b) Polling Place Procedures for Provisional Voting.
  (1) If a voter is eligible to cast a provisional ballot under the provisions set forth in §81.172(a) of this subchapter (relating to Eligibility to Vote a Provisional Ballot at the Early Voting or the Election Day Polling Place) and §63.011 of the Code, the election judge shall immediately inform the voter of this right.
  (2) The election judge shall advise the provisional voter that in order to have the voter's provisional ballot accepted, the provisional voter must be voting in the election precinct to which the voter is assigned.
  (3) If the voter is not on the precinct list of registered voters, the election judge may assist the voter in determining the voter's correct precinct.
  (4) If the provisional voter has no acceptable form of identification, the voter may still be permitted to vote a provisional ballot, but will be advised by the election judge that in order to have the provisional ballot accepted, no later than the sixth calendar day after the election date, the voter must:
    (A) present an acceptable form of identification described by §63.0101 of the Code to the voter registrar;
    (B) execute an affidavit for a temporary exemption in the presence of the voter registrar; or
    (C) submit a complete application for a permanent disability exemption to the voter registrar in person or through acceptable means of transmission under the Code.
  (5) The election judge must inform the voter that in order to vote a provisional ballot, a provisional voter must complete and sign the Provisional Ballot Affidavit Envelope. The Provisional Ballot Affidavit Envelope, a form prescribed by the Secretary of State in accordance with §31.002 and §63.011 of the Code, shall include the following:
    (A) A statement that the provisional voter is a registered voter in the election precinct in which the voter seeks to vote and that the voter is eligible to vote in the election; and
    (B) A space for disclosure of any information necessary to enable the person to register to vote under Chapter 13 of the Code if the voter proves to be unregistered.
  (6) The election judge shall complete the appropriate judge's portion of the reverse side of the Provisional Ballot Affidavit Envelope.
  (7) The election judge shall check the appropriate box, "yes" or "no," as to whether the voter presented an acceptable form of identification described by §63.0101 of the Code.
  (8) The election judge shall check the reason for which the voter voted provisionally on the Provisional Ballot Affidavit Envelope. The reasons include:
    (A) Failed to present acceptable form of identification described by §63.0101 of the Code or the voter registration certificate with exemption;
    (B) Voter not on list of registered voters;
    (C) Voter not on list, registered in another precinct;
    (D) Voter on list of people who voted early by mail, and voter has not cancelled mail ballot application;
    (E) Voting after 7:00 p.m. due to court order;
    (F) Voter on list, but registered residence address outside the ___________political subdivision; or
    (G) Other _________________ (Please explain).
  (9) The election judge shall then sign the Provisional Ballot Affidavit Envelope.
  (10) After the provisional voter and the election judge complete the Provisional Ballot Affidavit Envelope, the election judge shall enter the provisional voter's name on the Early Voting List of Provisional Voters form or the List of Provisional Voters form, as applicable, prescribed by the Secretary of State.
  (11) The election judge shall add the name of the provisional voter to the poll list or combination form and mark the voter as "Provisional."
  (12) The provisional voter shall sign the regular signature roster or combination form in the appropriate place.
  (13) The election judge shall provide to the voter a Notice to Provisional Voter. This form must inform the provisional voter that the voter will receive notice in the mail about whether the voter's provisional ballot was counted. The form may also provide the voter with information explaining that the Provisional Ballot Affidavit Envelope will be used by the voter registrar to register the voter or update the voter's registration, as applicable.
  (14) The Notice to Provisional Voter for Voters Voting Provisional due to lack of ID is a form prescribed by the Secretary of State and must also contain the following information:
    (A) The list of acceptable forms of identification described by §63.0101 of the Code, as well as the available exemptions;
    (B) The procedure for presenting identification to the voter registrar, executing an affidavit for a temporary exemption in the presence of the voter registrar, and applying for a permanent disability exemption, not later than the sixth day after the election date;
    (C) A map showing the location of the voter registrar (attached by administrator of election);
    (D) Notice that if all procedures are followed and the provisional voter is found to be eligible to vote and is voting in the correct election precinct, the voter's provisional ballot will be accepted by the Early Voting Ballot Board after the election; and
    (E) A place for the election official to enter the voter's name, voter unique identifier (VUID) number (if available), and the precinct polling place at which the provisional ballot was voted.
  (15) If provisional voting is being conducted with paper or optical scan ballots, the election judge and provisional voter must adhere to the following steps.
    (A) The election judge shall direct the provisional voter to choose a ballot from a disarranged (random numerical order) supply of pre-designated "provisional" ballots that are separate from regular ballots, in accordance with §62.009 of the Code.
    (B) After marking the provisional ballot, the voter must place the ballot in the provided secrecy envelope, and then place the secrecy envelope (with ballot inside) inside the Provisional Ballot Affidavit Envelope. The Provisional Ballot Affidavit Envelope must be sealed.
    (C) The provisional voter must deposit the Provisional Ballot Affidavit Envelope in the secure container for completed Provisional Ballot Affidavit Envelopes provided at the polling place.
  (16) If provisional voting is being conducted on DRE voting machines, the election judge shall prepare the DRE voting machine for provisional voting in accordance with instructions provided by the general custodian of election records, which may include the instructions of the vendor of the system. After the provisional voter completes the voting process, the completed Provisional Ballot Affidavit Envelope will be deposited in the secure container for completed Provisional Ballot Affidavit Envelopes provided at the polling place.
(c) Early Voting by Personal Appearance Provisional Ballot Procedures.
  (1) To the extent practicable, the early voting clerk or deputy early voting clerk shall follow election day provisional ballot procedures during the early voting period.
  (2) The provisional voter's precinct number shall be added to the Early Voting List of Provisional Voters.
  (3) The early voting clerk may deliver the provisional ballot envelopes cast during early voting to the voter registrar. The early voting clerk must sign the List of Provisional Ballots before transfer to the voter registrar. The voter registrar shall sign the List of Early Voting Provisional Voters to verify receipt of the provisional ballot envelopes.
  (4) The voter registrar shall review the Provisional Ballot Affidavit Envelopes as set out in §81.175 of this subchapter (relating to Voter Registrar Review of Provisional Ballot Affidavit Envelopes).

Source Note: The provisions of this §81.173 adopted to be effective April 3, 2014, 39 TexReg 2264