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A BILL TO BE ENTITLED
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AN ACT
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relating to creating the criminal offense of boating while |
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intoxicated with a child passenger; changing the eligibility for |
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deferred adjudication community supervision. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 49, Penal Code, is amended by adding |
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Section 49.061 to read as follows: |
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Sec. 49.061. BOATING WHILE INTOXICATED WITH CHILD |
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PASSENGER. (a) A person commits an offense if: |
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(1) the person is intoxicated while operating a |
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watercraft; and |
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(2) the watercraft being operated by the person is |
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occupied by a passenger who is younger than 15 years of age. |
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(b) An offense under this section is a state jail felony. |
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SECTION 2. Sections 49.09(b) and (d), Penal Code, are |
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amended to read as follows: |
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(b) An offense under Section 49.04, 49.045, 49.05, 49.06, |
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49.061, or 49.065 is a felony of the third degree if it is shown on |
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the trial of the offense that the person has previously been |
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convicted: |
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(1) one time of an offense under Section 49.08 or an |
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offense under the laws of another state if the offense contains |
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elements that are substantially similar to the elements of an |
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offense under Section 49.08; or |
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(2) two times of any other offense relating to the |
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operating of a motor vehicle while intoxicated, operating an |
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aircraft while intoxicated, operating a watercraft while |
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intoxicated, or operating or assembling an amusement ride while |
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intoxicated. |
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(d) For the purposes of this section, a conviction for an |
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offense under Section 49.04, 49.045, 49.05, 49.06, 49.061, 49.065, |
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49.07, or 49.08 that occurs on or after September 1, 1994, is a |
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final conviction, whether the sentence for the conviction is |
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imposed or probated. |
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SECTION 3. Section 49.09(c)(3), Penal Code, is amended to |
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read as follows: |
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(3) "Offense of operating a watercraft while |
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intoxicated" means: |
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(A) an offense under Section 49.06 or 49.061; |
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(B) an offense under Section 49.07 or 49.08, if |
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the vehicle operated was a watercraft; |
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(C) an offense under Section 31.097, Parks and |
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Wildlife Code, as that law existed before September 1, 1994; |
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(D) an offense under Section 19.05(a)(2), as that |
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law existed before September 1, 1994, if the vehicle operated was a |
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watercraft; or |
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(E) an offense under the laws of another state |
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that prohibit the operation of a watercraft while intoxicated. |
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SECTION 4. Section 49.10, Penal Code, is amended to read as |
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follows: |
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Sec. 49.10. NO DEFENSE. In a prosecution under Section |
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49.031 [49.03], 49.04, 49.045, 49.05, 49.06, 49.061, 49.065, 49.07, |
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or 49.08, the fact that the defendant is or has been entitled to use |
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the alcohol, controlled substance, drug, dangerous drug, or other |
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substance is not a defense. |
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SECTION 5. Section 106.041(g), Alcoholic Beverage Code, is |
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amended to read as follows: |
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(g) An offense under this section is not a lesser included |
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offense under Section 49.04, 49.045, [or] 49.06, or 49.061, Penal |
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Code. |
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SECTION 6. Article 16.23(b), Code of Criminal Procedure, is |
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amended to read as follows: |
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(b) Subsection (a) does not apply to a person who is accused |
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of an offense under Section 49.04, 49.045, 49.05, 49.06, 49.061, |
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49.065, 49.07, or 49.08, Penal Code. |
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SECTION 7. Article 17.441(a), Code of Criminal Procedure, |
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is amended to read as follows: |
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(a) Except as provided by Subsection (b), a magistrate shall |
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require on release that a defendant charged with a subsequent |
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offense under Section 49.04, 49.05, [or] 49.06, or 49.061, Penal |
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Code, or an offense under Section 49.045, 49.07, or 49.08 of that |
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code: |
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(1) have installed on the motor vehicle owned by the |
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defendant or on the vehicle most regularly driven by the defendant, |
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a device that uses a deep-lung breath analysis mechanism to make |
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impractical the operation of a motor vehicle if ethyl alcohol is |
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detected in the breath of the operator; and |
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(2) not operate any motor vehicle unless the vehicle |
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is equipped with that device. |
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SECTION 8. Article 18.01(j), Code of Criminal Procedure, is |
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|
amended to read as follows: |
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(j) Any magistrate who is an attorney licensed by this state |
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may issue a search warrant under Article 18.02(a)(10) to collect a |
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blood specimen from a person who: |
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(1) is arrested for an offense under Section 49.04, |
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49.045, 49.05, 49.06, 49.061, 49.065, 49.07, or 49.08, Penal Code; |
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and |
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(2) refuses to submit to a breath or blood alcohol |
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test. |
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SECTION 9. Article 42A.102(b), Code of Criminal Procedure, |
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as amended by Chapters 1137 (H.B. 2758) and 1298 (H.B. 3582), Acts |
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|
of the 86th Legislature, Regular Session, 2019, is reenacted and |
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|
amended to read as follows: |
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(b) In all other cases, the judge may grant deferred |
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|
adjudication community supervision unless: |
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(1) the defendant is charged with an offense: |
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(A) under Section 20A.02, [or] 20A.03, [or] |
|
|
49.045, 49.05, 49.061, 49.065, 49.07, or 49.08, Penal Code; |
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(B) under Section 49.04 or 49.06, Penal Code, |
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|
and, at the time of the offense: |
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(i) the defendant held a commercial |
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driver's license or a commercial learner's permit; or |
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(ii) the defendant's alcohol concentration, |
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as defined by Section 49.01, Penal Code, was 0.15 or more; |
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(C) for which punishment may be increased under |
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|
Section 49.09, Penal Code; or |
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|
(D) for which punishment may be increased under |
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Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it |
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|
is shown that the defendant has been previously convicted of an |
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|
offense for which punishment was increased under any one of those |
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|
subsections; |
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|
(2) the defendant: |
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|
(A) is charged with an offense under Section |
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|
21.11, 22.011, 22.021, 43.04, or 43.05, Penal Code, regardless of |
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|
the age of the victim, or a felony described by Article 42A.453(b), |
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|
other than a felony described by Subdivision (1)(A) or (3)(B) of |
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this subsection; and |
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(B) has previously been placed on community |
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supervision for an offense under Paragraph (A); |
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(3) the defendant is charged with an offense under: |
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|
(A) Section 21.02, Penal Code; or |
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|
(B) Section 22.021, Penal Code, that is |
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|
punishable under Subsection (f) of that section or under Section |
|
|
12.42(c)(3) or (4), Penal Code; or |
|
|
(4) the defendant is charged with an offense under |
|
|
Section 19.02, Penal Code, except that the judge may grant deferred |
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|
adjudication community supervision on determining that the |
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|
defendant did not cause the death of the deceased, did not intend to |
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|
kill the deceased or another, and did not anticipate that a human |
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|
life would be taken. |
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SECTION 10. Articles 42A.408(c) and (d), Code of Criminal |
|
|
Procedure, are amended to read as follows: |
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(c) The court shall require as a condition of community |
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|
supervision that a defendant described by Subsection (b) have an |
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ignition interlock device installed on the motor vehicle owned by |
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the defendant or on the vehicle most regularly driven by the |
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|
defendant and that the defendant not operate any motor vehicle |
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unless the vehicle is equipped with that device if: |
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(1) it is shown on the trial of the offense that an |
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|
analysis of a specimen of the defendant's blood, breath, or urine |
|
|
showed an alcohol concentration level of 0.15 or more at the time |
|
|
the analysis was performed; |
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(2) the defendant is placed on community supervision |
|
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after conviction of an offense under Sections 49.04-49.061 |
|
|
[49.04-49.06], Penal Code, for which the defendant is punished |
|
|
under Section 49.09(a) or (b), Penal Code; or |
|
|
(3) the court determines under Subsection (d) that the |
|
|
defendant has one or more previous convictions under Sections |
|
|
49.04-49.08, Penal Code. |
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(d) Before placing on community supervision a defendant |
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|
convicted of an offense under Sections 49.04-49.08, Penal Code, the |
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court shall determine from criminal history record information |
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|
maintained by the Department of Public Safety whether the defendant |
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|
has one or more previous convictions under any of those sections. A |
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|
previous conviction may not be used for purposes of restricting a |
|
|
defendant to the operation of a motor vehicle equipped with an |
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|
ignition interlock device under Subsection (c) if: |
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(1) the previous conviction was a final conviction |
|
|
under Section 49.04, 49.045, 49.05, 49.06, 49.061, 49.07, or 49.08, |
|
|
Penal Code, and was for an offense committed before the beginning of |
|
|
the 10-year period preceding the date of the instant offense for |
|
|
which the defendant was convicted and placed on community |
|
|
supervision; and |
|
|
(2) the defendant has not been convicted of an offense |
|
|
under Section 49.04, 49.045, 49.05, 49.06, 49.061, 49.07, or 49.08, |
|
|
Penal Code, committed within the 10-year period preceding the date |
|
|
of the instant offense for which the defendant was convicted and |
|
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placed on community supervision. |
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|
SECTION 11. Section 12.203(a), Parks and Wildlife Code, is |
|
|
amended to read as follows: |
|
|
(a) A person may apply to the committee for a reward to be |
|
|
paid from the operation game thief fund if the person furnishes |
|
|
information leading to the arrest and conviction of a person for a |
|
|
violation of this code or any of the following laws or a regulation |
|
|
adopted under this code or any of the following laws: |
|
|
(1) Subchapter B, Chapter 365, Health and Safety Code; |
|
|
(2) Subchapter E, Chapter 191, Natural Resources Code; |
|
|
(3) Chapter 28 or Section 30.05, 31.03, 31.11, 37.10, |
|
|
49.06, 49.061, 49.07, or 49.08, Penal Code; |
|
|
(4) Chapter 160, Tax Code; or |
|
|
(5) Subchapter E, Chapter 7, or Subchapter D, Chapter |
|
|
26, Water Code. |
|
|
SECTION 12. Section 524.011(a), Transportation Code, is |
|
|
amended to read as follows: |
|
|
(a) An officer arresting a person shall comply with |
|
|
Subsection (b) if: |
|
|
(1) the person is arrested for an offense under |
|
|
Section 49.04, 49.045, [or] 49.06, or 49.061, Penal Code, or an |
|
|
offense under Section 49.07 or 49.08 of that code involving the |
|
|
operation of a motor vehicle or watercraft, submits to the taking of |
|
|
a specimen of breath or blood and an analysis of the specimen shows |
|
|
the person had an alcohol concentration of a level specified by |
|
|
Section 49.01(2)(B), Penal Code; or |
|
|
(2) the person is a minor arrested for an offense under |
|
|
Section 106.041, Alcoholic Beverage Code, or Section 49.04, 49.045, |
|
|
[or] 49.06, or 49.061, Penal Code, or an offense under Section 49.07 |
|
|
or 49.08, Penal Code, involving the operation of a motor vehicle or |
|
|
watercraft and: |
|
|
(A) the minor is not requested to submit to the |
|
|
taking of a specimen; or |
|
|
(B) the minor submits to the taking of a specimen |
|
|
and an analysis of the specimen shows that the minor had an alcohol |
|
|
concentration of greater than.00 but less than the level specified |
|
|
by Section 49.01(2)(B), Penal Code. |
|
|
SECTION 13. Section 524.015(b), Transportation Code, is |
|
|
amended to read as follows: |
|
|
(b) A suspension may not be imposed under this chapter on a |
|
|
person who is acquitted of a criminal charge under Section 49.04, |
|
|
49.045, 49.06, 49.061, 49.07, or 49.08, Penal Code, or Section |
|
|
106.041, Alcoholic Beverage Code, arising from the occurrence that |
|
|
was the basis for the suspension. If a suspension was imposed before |
|
|
the acquittal, the department shall rescind the suspension and |
|
|
shall remove any reference to the suspension from the person's |
|
|
computerized driving record. |
|
|
SECTION 14. Section 524.022(b), Transportation Code, is |
|
|
amended to read as follows: |
|
|
(b) A period of suspension under this chapter for a minor |
|
|
is: |
|
|
(1) 60 days if the minor has not been previously |
|
|
convicted of an offense under Section 106.041, Alcoholic Beverage |
|
|
Code, or Section 49.04, 49.045, [or] 49.06, or 49.061, Penal Code, |
|
|
or an offense under Section 49.07 or 49.08, Penal Code, involving |
|
|
the operation of a motor vehicle or a watercraft; |
|
|
(2) 120 days if the minor has been previously |
|
|
convicted once of an offense listed by Subdivision (1); or |
|
|
(3) 180 days if the minor has been previously |
|
|
convicted twice or more of an offense listed by Subdivision (1). |
|
|
SECTION 15. Section 524.023, Transportation Code, is |
|
|
amended to read as follows: |
|
|
Sec. 524.023. APPLICATION OF SUSPENSION UNDER OTHER LAWS. |
|
|
(a) If a person is convicted of an offense under Section 106.041, |
|
|
Alcoholic Beverage Code, or Section 49.04, 49.045, 49.06, 49.061, |
|
|
49.07, or 49.08, Penal Code, and if any conduct on which that |
|
|
conviction is based is a ground for a driver's license suspension |
|
|
under this chapter and Section 106.041, Alcoholic Beverage Code, |
|
|
Subchapter O, Chapter 521, or Subchapter H, Chapter 522, each of the |
|
|
suspensions shall be imposed. |
|
|
(b) The court imposing a driver's license suspension under |
|
|
Section 106.041, Alcoholic Beverage Code, or Chapter 521 or 522 as |
|
|
required by Subsection (a) shall credit a period of suspension |
|
|
imposed under this chapter toward the period of suspension required |
|
|
under Section 106.041, Alcoholic Beverage Code, or Subchapter O, |
|
|
Chapter 521, or Subchapter H, Chapter 522, unless the person was |
|
|
convicted of an offense under Article 6701l-1, Revised Statutes, as |
|
|
that law existed before September 1, 1994, Section 19.05(a)(2), |
|
|
Penal Code, as that law existed before September 1, 1994, Section |
|
|
49.04, 49.045, 49.06, 49.061, 49.07, or 49.08, Penal Code, or |
|
|
Section 106.041, Alcoholic Beverage Code, before the date of the |
|
|
conviction on which the suspension is based, in which event credit |
|
|
may not be given. |
|
|
SECTION 16. Section 524.042(a), Transportation Code, is |
|
|
amended to read as follows: |
|
|
(a) A suspension of a driver's license under this chapter is |
|
|
stayed on the filing of an appeal petition only if: |
|
|
(1) the person's driver's license has not been |
|
|
suspended as a result of an alcohol-related or drug-related |
|
|
enforcement contact during the five years preceding the date of the |
|
|
person's arrest; and |
|
|
(2) the person has not been convicted during the 10 |
|
|
years preceding the date of the person's arrest of an offense under: |
|
|
(A) Article 6701l-1, Revised Statutes, as that |
|
|
law existed before September 1, 1994; |
|
|
(B) Section 19.05(a)(2), Penal Code, as that law |
|
|
existed before September 1, 1994; |
|
|
(C) Section 49.04, 49.045, [or] 49.06, or 49.061, |
|
|
Penal Code; |
|
|
(D) Section 49.07 or 49.08, Penal Code, if the |
|
|
offense involved the operation of a motor vehicle or a watercraft; |
|
|
or |
|
|
(E) Section 106.041, Alcoholic Beverage Code. |
|
|
SECTION 17. Section 724.012(b), Transportation Code, is |
|
|
amended to read as follows: |
|
|
(b) A peace officer shall require the taking of a specimen |
|
|
of the person's breath or blood under any of the following |
|
|
circumstances if the officer arrests the person for an offense |
|
|
under Chapter 49, Penal Code, involving the operation of a motor |
|
|
vehicle or a watercraft and the person refuses the officer's |
|
|
request to submit to the taking of a specimen voluntarily: |
|
|
(1) the person was the operator of a motor vehicle or a |
|
|
watercraft involved in an accident that the officer reasonably |
|
|
believes occurred as a result of the offense and, at the time of the |
|
|
arrest, the officer reasonably believes that as a direct result of |
|
|
the accident: |
|
|
(A) any individual has died or will die; |
|
|
(B) an individual other than the person has |
|
|
suffered serious bodily injury; or |
|
|
(C) an individual other than the person has |
|
|
suffered bodily injury and been transported to a hospital or other |
|
|
medical facility for medical treatment; |
|
|
(2) the offense for which the officer arrests the |
|
|
person is an offense under Section 49.045, Penal Code; or |
|
|
(3) at the time of the arrest, the officer possesses or |
|
|
receives reliable information from a credible source that the |
|
|
person: |
|
|
(A) has been previously convicted of or placed on |
|
|
community supervision for an offense under Section 49.045, 49.07, |
|
|
or 49.08, Penal Code, or an offense under the laws of another state |
|
|
containing elements substantially similar to the elements of an |
|
|
offense under those sections; or |
|
|
(B) on two or more occasions, has been previously |
|
|
convicted of or placed on community supervision for an offense |
|
|
under Section 49.04, 49.05, 49.06, 49.061, or 49.065, Penal Code, |
|
|
or an offense under the laws of another state containing elements |
|
|
substantially similar to the elements of an offense under those |
|
|
sections. |
|
|
SECTION 18. To the extent of any conflict, this Act prevails |
|
|
over another Act of the 87th Legislature, Regular Session, 2021, |
|
|
relating to nonsubstantive additions to and corrections in enacted |
|
|
codes. |
|
|
SECTION 19. This Act takes effect September 1, 2021. |