May 1, 2024 

The Honorable Dee Hobbs 

Williamson County Attorney 

405 M.L.K. Street, #7 

Georgetown, Texas 78626 

Opinion No. KP-0463 

Re: Whether a member of the public may obtain copies of spoiled ballots on the 61st day 

following election day (RQ-0520-KP) 

Dear Mr. Hobbs: 

On behalf of the Williamson County Elections Department, you ask “whether physical 

copies of spoiled ballots in ballot box 4 can be made available to the public” sixty-one days after 

election day.

1 We begin by examining the handling of spoiled ballots at the polling place, the 

distribution of spoiled ballots at the close of the election, and the preservation of spoiled ballots 

following the election. 

The Election Code dictates the handling of spoiled ballots at the polling place, the 

distribution of spoiled ballots at the close of the election, and the preservation of 

spoiled ballots following the election. 

Election Code section 64.007 is titled “Spoiled Ballot.” TEX. ELEC. CODE § 64.007. It 

provides that “[i]f a voter mismarks, damages, or otherwise spoils the ballot in the process of 

voting, the voter is entitled to receive a new ballot by returning the spoiled ballot to an election 

officer.”2 Id. § 64.007(a). A spoiled ballot returned by a voter to an election officer is accounted 

for on a register maintained by the officer at the polling place.3 Id. § 64.007(c) (requiring an 

election officer to “enter on the register the name of each voter who returns a spoiled ballot and 

1

Letter from Honorable Dee Hobbs, Williamson Cnty. Att’y, to the Off. of the Att’y Gen., Op. Comm. at 1, 

4 (Nov. 3, 2023), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2023/RQ0520KP 

(“Request Letter”). 

2

A poster with instructions about “securing an additional ballot if the voter’s original ballot is spoiled” must 

be posted at each voting station and polling place. TEX. ELEC. CODE § 62.011(a), (c)(4); see TEX. SEC’Y OF STATE, 

VOTER INFORMATION POSTER, available at https://www.sos.state.tx.us/elections/forms/pol-sub/7-36f.pdf; see also 

TEX. ELEC. CODE § 62.0115(b)(3) (requiring notice of voters’ rights, including information about spoiled ballots). 

3

The Secretary of State is charged with creating the register form. See TEX. ELEC. CODE § 64.007(c); TEX. 

SEC’Y OF STATE, REGISTER OF SPOILED BALLOTS, available at https://www.sos.state.tx.us/elections/forms/pol-sub/7-

93f.pdf. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Honorable Dee Hobbs- Page 2 

the spoiled ballot’s number”). After entering the required information about the spoiled ballot on 

the register, the election officer deposits the spoiled ballot in ballot box no. 4.4 Id. § 64.007(d); see 

also id. § 51.033(a), (c)–(e) (requiring four ballot boxes, each for a different purpose, be used at 

each polling location in an election). 

The disposition of records and supplies at the close of the election is generally governed 

by Election Code chapter 66. Id. §§ 66.001‒.062. Subsection 66.021(a) instructs the presiding 

judge, upon completing the election returns for the precinct, to “assemble the precinct election 

records and place them in the appropriate envelopes and ballot boxes for distribution.” Id. 

§ 66.021(a). The term “precinct election records” is defined to mean “the precinct election returns, 

voted ballots, and other records of an election that are assembled and distributed under” chapter 

66. Id. § 66.002 (emphasis added). Spoiled ballots are assembled and distributed under chapter 66; 

thus, they are precinct election records. Specifically, chapter 66 directs that the spoiled ballots 

along with the spoiled ballot register be placed in ballot box no. 4 and delivered by the presiding 

judge to the general custodian of election records. Id. §§ 66.021(b) (requiring the judge to lock 

ballot box no. 4 when it is ready for distribution), 66.026(2), (3) (providing that “[b]allot box no. 

4 must contain” among other things, the register of spoiled ballots and any spoiled ballots), 

66.051(b) (requiring the presiding judge to deliver “ballot box no. 4 and its key in person to the 

general custodian of election records”); see also id. § 127.067(c) (relating to disposition of precinct 

election records in election using electronic voting system instead of paper ballots). 

Once delivered to the custodian, “[t]he records in ballot box no. 4 may be preserved in that 

box or by any other method chosen by the custodian.”5 Id. § 66.058(f). As precinct election 

records, spoiled ballots must be preserved by the custodian “for at least 22 months after election 

day.”6 Id. § 66.058(a); see also 13 TEX. ADMIN. CODE § 7.125(a)(10) (2020) (Tex. State Libr. & 

Archives Comm’n, Records Retention Schedules) (setting out “Local Schedule EL: Records of 

Elections and Voter Registration, 4th Edition” which requires that spoiled ballots be retained 

“[e]lection day + 22 months”). 

You suggest that spoiled ballots may be subject to the preservation period in subsection 

66.058(b). See Request Letter at 3‒4. Subsection 66.058(b) directs that “[f]or a period of at least 

60 days after the date of the election, the voted ballots shall be preserved securely in a locked room 

in the locked ballot box in which they are delivered to the general custodian of election records.” 

TEX. ELEC. CODE § 66.058(b) (emphasis added); see also id. § 1.012(f)–(h) (addressing the 

availability of voted ballots for public inspection). But spoiled ballots are not voted ballots as 

exemplified by the fact that spoiled ballots are delivered to the custodian in ballot box no. 4 while 

voted ballots are delivered to the custodian in ballot box no. 3. Id. §§ 51.033(d) (providing “[b]allot 

4

The Secretary of State prescribes the use of an envelope to keep spoiled ballots separate from other ballots 

that are returned in ballot box no. 4. See TEX. ELEC. CODE § 51.033(e) (specifying that “[b]allot box no. 4 is used for 

delivering defectively printed, spoiled, and unused ballots to their custodian after the election”); TEX. SEC’Y OF STATE, 

ENVELOPE FOR SPOILED BALLOTS, available at https://www.sos.state.tx.us/elections/forms/pol-sub/7-77f.pdf. 

5

If removed from ballot box no. 4, the records “may not be commingled with any other election records kept 

by the custodian.” TEX. ELEC. CODE § 66.058(f). 

6

With some exceptions, the records may be destroyed or otherwise disposed of after the preservation period. 

Id. § 1.013. 
 

 

 

 

 

 

 

 

 

 

 

 

The Honorable Dee Hobbs- Page 3 

box no. 3 is used for delivering the voted ballots to their custodian”), 66.025(a)(1) (providing 

“[b]allot box no. 3 must contain . . . the voted ballots”). As a result, subsection 66.058(b) is not 

relevant to your question. 

With that background and clarification, we consider whether copies of spoiled ballots 

preserved in ballot box no. 4 are available to the public during the 22-month preservation period. 

The Election Code designates spoiled ballots preserved in ballot box no. 4 as public 

information subject to disclosure. 

Section 1.012 of the Election Code generally requires the custodian to make election 

records available to the public unless the records are expressly excepted by the Public Information 

Act or the Election Code. Id. § 1.012(c) (“Except as otherwise provided by [the Election Code] or 

Chapter 552, Government Code [the Public Information Act], all election records are public 

information.”); Tex. Att’y Gen. Op. No. KP-0411 (2022) at 3. “Election records” include anything 

distributed or received by government under the Election Code or required by law to be kept by 

others for information of government under the Election Code, as well as any document or paper 

issued or received by government under the Election Code. TEX. ELEC. CODE § 1.012(d). Thus, 

spoiled ballots are not only “precinct election records” that must be preserved under subsection 

66.058(a) but also “election records” available to the public under Election Code subsection 

1.012(c). We must then examine whether spoiled ballots are expressly excepted from disclosure 

to the public by the Public Information Act or the Election Code. 

Subchapter C of the Public Information Act establishes the exceptions to the general rule 

that public information shall be made available to the public. See TEX. GOV’T CODE §§ 552.101– 

.163 (“Information Excepted from Required Disclosure”). No section within that subchapter 

expressly addresses spoiled ballots or excepts them from disclosure.7 See id. Likewise, no 

provision in the Election Code designates spoiled ballots as confidential or otherwise prohibits 

their disclosure to the public. A court would likely conclude that, by requiring that the public have 

access to election records, the Legislature thereby authorizes the election records custodian’s entry 

to ballot box no. 4 to respond to a public information request for copies of spoiled ballots. This 

entry must be made in accordance with the time and manner requirements prescribed by statute, 

the Secretary of State, and the custodian. See, e.g., TEX. ELEC. CODE §§ 1.012(a), (b) (requiring 

that an election record that is public information “be made available to the public during the regular 

business hours of the record’s custodian” and allowing the custodian to adopt reasonable rules 

regarding access to the records), 66.058(h) (authorizing the Secretary of State to instruct elections 

administrators on compliance with section 66.058 for elections involving federal office), 66.057(b) 

(requiring the general custodian of election records or the custodian’s designee be present at all 

times when the records in ballot box no. 4 are inspected). 

7

For instance, as you note, previous open records letter rulings issued by this office conclude that spoiled and 

unused ballots may not be withheld under Government Code section 552.101. See Request Letter at 3 (citing Tex. 

Att’y Gen. OR2001-2842); see also Tex. Att’y Gen. OR2009-10257 (concluding unused ballots were not confidential 

by law); Tex. Att’y Gen. OR2001-3228 (concluding spoiled and unused ballots were not confidential by law). 
 

 

 

 

 

The Honorable Dee Hobbs- Page 4 

Any personally identifiable information contained in election records that could tie a 

voter’s identity to their specific voting selections must be redacted for purposes of 

disclosure to protect the constitutional right to a secret ballot in Texas. 

That copies of spoiled ballots preserved in ballot box no. 4 are available to the public during 

the 22-month preservation period does not mean some information on an individual ballot may not 

be confidential.

8 A recent opinion of this office explained that “the right to a secret ballot has been 

held to protect personally identifiable information contained in election records that could tie a 

voter’s identity to their specific voting selections.” Tex. Att’y Gen. Op. No. KP-0411 (2022) at 4 

(citing Wood v. State ex rel. Lee, 126 S.W.2d 4, 9 (Tex. 1939) and Carroll v. State, 61 S.W.2d 

1005, 1008 (Tex. Crim. App. 1933)); see also TEX. CONST. art. VI, § 4. Therefore, a court would 

likely find that personally identifiable information contained in an election record, including a 

spoiled ballot, that could tie a voter’s identity to their specific voting selections is excepted from 

public disclosure. As a result, the election records custodian must redact any such personally 

identifiable information to protect the constitutional right to a secret ballot in Texas. See TEX. 

GOV’T CODE §§ 552.007 (providing that a governmental body has no discretion to release 

information deemed confidential by law), 552.301‒.310 (setting out the procedure for a decision 

from the attorney general regarding whether information may be withheld). 

8

Briefing received by our office suggests that spoiled ballots, either alone or in combination with other 

information (e.g., the register of spoiled ballots), “can contain information identifying a voter’s selections . . . .” Brief 

from Jennifer Doinoff, Pres., Tex. Assoc. of Elections Administrators at 1 (rec’d Dec. 19, 2023) (on file with the Op. 

Comm.). 
The Honorable Dee Hobbs- Page 5

S UMMAR Y 

The Legislature has established procedures aimed at both 

preserving spoiled ballots and granting public access to them. 

Section 66.058 of the Election Code requires spoiled ballots 

be preserved in ballot box no. 4 or by any other method chosen by 

the election records custodian during a 22-month preservation 

period. Section 1.012 establishes spoiled ballots as public 

information and requires the custodian to make the ballots available 

to the public. By expressly requiring the custodian to provide public 

access to such records, the Legislature authorized entry into ballot 

box no. 4 for such purpose during the 22-month period. Thus, 

members of the public may obtain copies of spoiled ballots 

preserved in ballot box no. 4 during the 22-month preservation 

period. 

Personally identifiable information contained in election 

records that could tie a voter’s identity to their specific voting 

selections is confidential and excepted from public disclosure. Thus, 

any confidential information on a spoiled ballot must be redacted for 

purposes of disclosure in order to protect the constitutional right to 

a secret ballot. 

Very truly yours, 

K E N P A X T O N 

Attorney General of Texas 

BRENT WEBSTER 

First Assistant Attorney General 

LESLEY FRENCH 

Chief of Staff 

D. FORREST BRUMBAUGH 

Deputy Attorney General for Legal Counsel 

AUSTIN KINGHORN 

Chair, Opinion Committee 

CHRISTY DRAKE-ADAMS 

Assistant Attorney General, Opinion Committee