S.B. No. 1
AN ACT
1-1 relating to the implementation of a statewide administrative
1-2 driver's license revocation program; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Title 116, Revised Statutes, is amended by adding
1-5 Article 6687b-1 to read as follows:
1-6 Art. 6687b-1. Suspension Based on Administrative
1-7 Determination
1-8 Sec. 1. In this article:
1-9 (1) "Alcohol concentration" has the meaning assigned
1-10 by Article 6701l-1(a), Revised Statutes.
1-11 (2) "Alcohol-related or drug-related enforcement
1-12 contact" means a driver's license suspension, disqualification, or
1-13 prohibition order under the laws of this state or another state
1-14 following:
1-15 (A) conviction of an offense prohibiting the
1-16 operation of a motor vehicle while intoxicated, while under the
1-17 influence of alcohol, or while under the influence of a controlled
1-18 substance;
1-19 (B) a refusal to submit to the taking of a blood
1-20 or breath specimen following an arrest for an offense prohibiting
1-21 the operation of a motor vehicle while intoxicated, while under the
1-22 influence of alcohol, or while under the influence of a controlled
1-23 substance; or
1-24 (C) an analysis of a blood or breath specimen
2-1 showing an alcohol concentration of a level specified in Article
2-2 6701l-1(a), Revised Statutes, following an arrest for an offense
2-3 prohibiting the operation of a motor vehicle while intoxicated.
2-4 (3) "Department" means the Department of Public
2-5 Safety.
2-6 (4) "Director" means the director of the Department of
2-7 Public Safety.
2-8 (5) "Driver's license" has the meaning assigned by
2-9 Section 1, Chapter 173, Acts of the 47th Legislature, Regular
2-10 Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes).
2-11 (6) "Public place" has the meaning assigned by Section
2-12 1.07(a), Penal Code.
2-13 Sec. 2. (a) If a person arrested for an offense under
2-14 Article 6701l-1, Revised Statutes, or Section 19.05(a)(2), Penal
2-15 Code, submits to the taking of a specimen of breath or blood and an
2-16 analysis of the specimen shows the person had an alcohol
2-17 concentration of a level specified in Article 6701l-1(a)(2)(B),
2-18 Revised Statutes, the arresting officer shall serve notice of
2-19 driver's license suspension personally on the arrested person.
2-20 (b) If a person arrested for an offense under Article
2-21 6701l-1, Revised Statutes, or Section 19.05(a)(2), Penal Code,
2-22 submits to the taking of a specimen of breath or blood and an
2-23 analysis of the specimen is not returned to the arresting officer
2-24 before the person is admitted to bail, released from custody, or
2-25 committed to jail, the arresting officer shall attempt to serve
2-26 notice of driver's license suspension personally on the arrested
2-27 person.
3-1 (c) A copy of the notice of suspension shall be sent by the
3-2 officer to the department before the end of the fifth business day
3-3 after the date of the arrest.
3-4 (d) The department shall develop forms for notices of
3-5 suspension that shall be used by all state and local law
3-6 enforcement agencies.
3-7 Sec. 3. (a) A peace officer who arrests a person for an
3-8 offense under Article 6701l-1, Revised Statutes, or Section
3-9 19.05(a)(2), Penal Code, shall, before the end of the fifth
3-10 business day after the date of the arrest, send the department a
3-11 sworn report of information relevant to the arrest, if analysis of
3-12 the specimen showed an alcohol concentration of a level specified
3-13 in Article 6701l-1(a)(2)(B), Revised Statutes. The report shall
3-14 identify the arrested person, state the officer's grounds for
3-15 believing the person committed the offense, give the analysis of
3-16 the specimen, and include a copy of the criminal complaint filed in
3-17 the case.
3-18 (b) A report required by this section shall be made on a
3-19 form approved by the department and in the manner specified by the
3-20 department.
3-21 Sec. 4. (a) On receipt of a report of a peace officer under
3-22 this article, if the officer did not serve notice of suspension of
3-23 driver's license at the time of obtaining the results of the
3-24 analysis of the blood or breath specimen, the department, in
3-25 accordance with Section 5 of this article, shall make the
3-26 determination and issue notice of driver's license suspension if
3-27 required.
4-1 (b) In the event that the officer did not serve notice of
4-2 suspension of driver's license in accordance with Section 5 of this
4-3 article, the department shall mail, by certified mail, notice of
4-4 suspension to the address of the person, as shown by the records of
4-5 the department, and to the address given in the peace officer's
4-6 report, if different. Notice is presumed received on the fifth day
4-7 after the day it is mailed.
4-8 (c) A notice of suspension must clearly state the reason and
4-9 statutory grounds for suspension, the effective date of suspension,
4-10 the right of the person to a hearing, how to request a hearing, and
4-11 the time limit within which a request for a hearing must be made.
4-12 If the department does not suspend the person's driver's license,
4-13 the department shall notify the person of its determination and
4-14 shall rescind any notice of suspension served on the person.
4-15 Sec. 5. (a) The department shall suspend the driver's
4-16 license of a person if it determines that the person had an alcohol
4-17 concentration of a level specified in Article 6701l-1(a)(2)(B),
4-18 Revised Statutes, while driving or operating a motor vehicle in a
4-19 public place.
4-20 (b) The department may not suspend the driver's license of a
4-21 person if the analysis of the person's breath or blood, submitted
4-22 at the request of a peace officer, determined that the person had
4-23 an alcohol concentration of a level below that specified in Article
4-24 6701l-1(a)(2)(B), Revised Statutes, at the time of taking the
4-25 specimen.
4-26 (c) The department shall make the determination based on the
4-27 report of a peace officer submitted under Section 3 of this
5-1 article. The determination is final, unless a hearing is requested
5-2 under Section 7 of this article.
5-3 (d) The determination of the department is a civil matter,
5-4 is independent of and is not an estoppel as to any matter in issue
5-5 in an adjudication of a criminal charge arising from the occurrence
5-6 that is the basis for the suspension, and does not preclude
5-7 litigation of the same or similar facts in a criminal prosecution.
5-8 Except as provided by this subsection, the disposition of a
5-9 criminal charge does not affect a driver's license suspension under
5-10 this article and is not an estoppel as to any matter in issue in a
5-11 driver's license suspension proceeding under this article.
5-12 Provided, that if a criminal charge under Article 6701l-1, Revised
5-13 Statutes, or Section 19.05(a)(2), Penal Code, results in an
5-14 acquittal, a suspension under this article shall not be imposed.
5-15 If a suspension under this article has already been imposed, the
5-16 department shall rescind the suspension and remove references to
5-17 the suspension from the computerized driving record of the
5-18 individual.
5-19 Sec. 6. (a) A driver's license suspension under this
5-20 article takes effect on the 40th day after the date on which:
5-21 (1) the person received notice from the officer under
5-22 Section 2 of this article; or
5-23 (2) the person is presumed to have received notice of
5-24 suspension from the department by mail under Section 4 of this
5-25 article.
5-26 (b) A period of suspension under this article is:
5-27 (1) 60 days if the person's driving record shows no
6-1 prior alcohol-related or drug-related enforcement contact during
6-2 the five years immediately preceding the date of the person's
6-3 arrest; or
6-4 (2) 120 days if the person's driving record shows one
6-5 or more alcohol-related or drug-related enforcement contacts, as
6-6 defined in Section 1(2)(B) or (C) of this article, during the five
6-7 years immediately preceding the date of the person's arrest; or
6-8 (3) 180 days if the person's driving record shows one
6-9 or more alcohol-related or drug-related enforcement contacts, as
6-10 defined in Section 1(2)(A) of this article, during the five years
6-11 immediately preceding the date of the person's arrest.
6-12 (c) If a person's driver's license is suspended under this
6-13 article and the person is also convicted of an offense under
6-14 Article 6701l-1, Revised Statutes, or Section 19.05(a)(2), Penal
6-15 Code, arising out of the same occurrence, the license suspensions
6-16 required by this article and by Section 24, Chapter 173, Acts of
6-17 the 47th Legislature, Regular Session, 1941 (Article 6687b,
6-18 Vernon's Texas Civil Statutes), or Section 25, Texas Commercial
6-19 Driver's License Act (Article 6687b-2, Revised Statutes), shall all
6-20 be imposed. Provided, that the court shall credit toward the
6-21 period of suspension of a person's license required by Section 24,
6-22 Chapter 173, Acts of the 47th Legislature, Regular Session, 1941
6-23 (Article 6687b, Vernon's Texas Civil Statutes), or by Section 25,
6-24 Texas Commercial Driver's License Act (Article 6687b-2, Revised
6-25 Statutes), a period of suspension imposed under this article if the
6-26 suspension arose from the same offense for which the court is
6-27 suspending the person's license. The court may not extend the
7-1 credit to a person who has been previously convicted of an offense
7-2 under Article 6701l-1, Revised Statutes, or Section 19.05(a)(2),
7-3 Penal Code.
7-4 Sec. 7. (a) A person who receives notice of suspension
7-5 under this article may request a hearing in writing, including
7-6 facsimile transmissions, or by other manner prescribed by the
7-7 department. A request must be received by the department at its
7-8 headquarters in Austin not later than the 15th day after the date
7-9 notice of suspension was given under Section 2 of this article or
7-10 the 15th day after the date the person is presumed to have received
7-11 notice by mail under Section 4 of this article. The department
7-12 shall schedule the hearing. The hearing shall be held before the
7-13 effective date of the suspension. A request for a hearing stays
7-14 suspension of driver's license until the date of the final decision
7-15 of the administrative law judge. For the purpose of a hearing,
7-16 jurisdiction is vested in an administrative law judge employed by
7-17 the chief administrative law judge of the State Office of
7-18 Administrative Hearings.
7-19 (b) A hearing shall be held at a location designated by the
7-20 State Office of Administrative Hearings in the county in which the
7-21 person was alleged to have committed the offense for which the
7-22 person was arrested or at a site designated by the State Office of
7-23 Administrative Hearings no more than 75 miles from the county seat
7-24 of the county of the arrest, except as provided by Subsection (c)
7-25 of this section. Provided that in counties with a population of
7-26 300,000 or more according to the most recent federal census,
7-27 hearings shall be held in the county of arrest, unless held as
8-1 provided in Subsection (c) of this section. A hearing shall be
8-2 held not less than 10 days after the date of notification to the
8-3 person, unless the parties agree to waive this requirement. The
8-4 State Office of Administrative Hearings shall provide for the
8-5 stenographic or electronic recording of all hearings. The issue at
8-6 a hearing is whether, by a preponderance of the evidence, the
8-7 person had an alcohol concentration of a level specified in Article
8-8 6701l-1(a)(2)(B), Revised Statutes, while driving or in actual
8-9 physical control of a motor vehicle in a public place, and
8-10 reasonable suspicion or probable cause existed to stop or arrest
8-11 the person. If the administrative law judge finds in the
8-12 affirmative as to this issue, the suspension order shall be
8-13 sustained. If the administrative law judge does not find in the
8-14 affirmative as to this issue, the department shall reinstate any
8-15 license, permit, or privilege to operate a motor vehicle and shall
8-16 rescind an order prohibiting the issuance of a license or permit.
8-17 (c) With the consent of the person and the department, the
8-18 administrative law judge may conduct a hearing under Subsection (b)
8-19 of this section by telephone conference call.
8-20 (d) The administrative law judge may not make an affirmative
8-21 finding under this section if the analysis of the person's breath
8-22 or blood, submitted at the request of a peace officer, determined
8-23 that the person had an alcohol concentration of a level below that
8-24 specified in Article 6701l-1(a), Revised Statutes, at the time of
8-25 taking the specimen.
8-26 (e) A person who requests a hearing and fails to appear,
8-27 without just cause, waives the right to a hearing, and the
9-1 department's determination is final.
9-2 (f) Notwithstanding Subsection (a) of this section, if no
9-3 later than five days before the date of a scheduled hearing the
9-4 department has received a request for a continuance from the person
9-5 who has requested a hearing, the department shall reschedule the
9-6 hearing to a date no sooner than the fifth day after the date on
9-7 which the department received the request for the continuance,
9-8 unless otherwise agreed by both parties. A continuance under this
9-9 section stays a suspension of a driver's license until the date of
9-10 the final decision of the administrative law judge. A person who
9-11 has requested a hearing under this article may obtain only one
9-12 continuance under this subsection, unless a bona fide medical
9-13 condition be shown which prevents the person from attending the
9-14 hearing in which case one additional continuance may be granted for
9-15 a period not to exceed 10 days.
9-16 (g) A person whose driver's license has been suspended after
9-17 a hearing under this section may appeal the suspension by filing
9-18 within 30 days after the date that the administrative law judge's
9-19 final determination is issued a petition in a county court at law
9-20 in the county where the person was arrested or, if there is no
9-21 county court at law in the county, in the county court of the
9-22 county. If the county judge is not a licensed attorney, the county
9-23 judge shall transfer the case to a district court for the county on
9-24 the motion of either party or of the judge.
9-25 (h) Except as provided by this subsection, filing an appeal
9-26 petition does not stay a suspension. The filing of an appeal
9-27 petition stays a suspension if the person's driver's license has
10-1 not been suspended as a result of any alcohol-related or
10-2 drug-related enforcement contact, as defined in Section 1, Article
10-3 6687b-1, Revised Statutes, in the five years immediately preceding
10-4 the date of the person's arrest, and the person has not been
10-5 convicted under Article 6701l-1, Revised Statutes, or Section
10-6 19.05(a)(2), Penal Code, in the 10 years immediately preceding the
10-7 date of the person's arrest, regardless of whether the prior
10-8 alcohol-related or drug-related contact or conviction occurred
10-9 prior to the effective date of this article. A stay shall only be
10-10 effective for a period of 90 days from the filing of an appeal
10-11 petition, and on the expiration of that period the department shall
10-12 impose the suspension previously ordered by the department. No
10-13 extension of the stay or additional stay order may be granted by
10-14 the department or the court. On appeal, review is on the record
10-15 certified by the State Office of Administrative Hearings with no
10-16 additional testimony except as provided by Subsection (j) of this
10-17 section. Review shall be based on the substantial evidence rule.
10-18 (i) A person who appeals under this section must send by
10-19 certified mail a copy of the person's petition, certified by the
10-20 clerk of the court in which the petition is filed, to both the
10-21 department and the State Office of Administrative Hearings at their
10-22 headquarters in Austin. The department's right to appeal is
10-23 limited to issues of law. There is no right to a jury trial in an
10-24 appeal under this section. A district or county attorney may
10-25 represent the department in an appeal.
10-26 (j) On appeal, any party may apply to the court for leave to
10-27 present additional evidence, and the court, if satisfied that the
11-1 additional information is material and that there were good reasons
11-2 for the failure to present it in the hearing before an
11-3 administrative law judge, may order that the additional evidence be
11-4 taken before an administrative law judge on conditions determined
11-5 by the court. An administrative law judge may modify a prior
11-6 determination as to whether the person had an alcohol concentration
11-7 of a level specified in Article 6701l-1(a), Revised Statutes, by
11-8 reason of the additional evidence. The administrative law judge
11-9 shall file the evidence and any modifications. A remand under this
11-10 subsection does not stay the suspension of a driver's license.
11-11 (k) To obtain a transcript of an administrative hearing, a
11-12 party who appeals the determination must apply to the State Office
11-13 of Administrative Hearings. On payment to the State Office of
11-14 Administrative Hearings of a fee not to exceed the actual cost of
11-15 preparing the transcript, that agency shall promptly furnish both
11-16 parties with the transcript.
11-17 (l) A suspension under this article may not be probated.
11-18 (m) In a proceeding under this article, the reliability of
11-19 an instrument used to take or analyze a specimen of a person's
11-20 breath to determine alcohol concentration and the validity of the
11-21 results of the analysis may be attested to by affidavit from the
11-22 certified breath test technical supervisor who is responsible for
11-23 maintaining and directing the operation of breath test instruments
11-24 in compliance with the rules of the department. An affidavit
11-25 submitted under this subsection must contain statements on the
11-26 reliability of the instrument and the analytical results and on
11-27 compliance with state law in the administration of the program. An
12-1 affidavit of an expert witness contesting the reliability of the
12-2 instrument or the results is admissible. Except as provided by
12-3 Subsection (n) of this section, the affidavit may be submitted in
12-4 lieu of an appearance at the hearing by the breath test operator,
12-5 breath test technical supervisor, or expert witness.
12-6 (n) Notwithstanding Subsection (m) of this section, if no
12-7 later than five days before the date of a scheduled hearing the
12-8 department receives from the person who has requested the hearing
12-9 written notice, including facsimile transmissions, requesting the
12-10 presence at the hearing of the person who took the specimen of the
12-11 person's breath to determine alcohol concentration, or the
12-12 certified breath test technical supervisor who was responsible for
12-13 maintaining and directing the operation of the breath test
12-14 instrument used to analyze the specimen of the person's breath, or
12-15 both, each requested person must appear at the hearing. The
12-16 department may reschedule a hearing once at least 48 hours before
12-17 the time of the hearing if a person requested under this section is
12-18 unavailable. In addition, the department may reschedule the
12-19 hearing on a showing of good cause if the requested person is not
12-20 available at the time of the hearing. A suspension order may not
12-21 go into effect pending a final decision of the administrative law
12-22 judge as a result of a continuance granted under this subsection.
12-23 If any person whose presence is timely requested under this
12-24 subsection fails to appear at the hearing, without a showing of
12-25 good cause, an affidavit from that witness is inadmissible.
12-26 (o) A person whose driver's license is suspended under this
12-27 section is subject to Section 34, Chapter 173, Acts of the 47th
13-1 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
13-2 Civil Statutes).
13-3 (p) The Administrative Procedure and Texas Register Act
13-4 (Article 6252-13a, Vernon's Texas Civil Statutes) applies to
13-5 proceedings under this article to the extent not inconsistent with
13-6 this article. The State Office of Administrative Hearings shall
13-7 adopt rules that may conflict with the Administrative Procedure and
13-8 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
13-9 Statutes) as necessary to expedite the hearings process within the
13-10 time limits required by this article and applicable federal funding
13-11 guidelines. Notice required by this section to be given by the
13-12 department may be given telephonically or by other electronic
13-13 means, and written notice shall follow if such means are used.
13-14 Notice by mail is presumed received on the fifth day after the date
13-15 it is deposited with the United States Postal Service. The
13-16 decision of the administrative law judge is final when issued and
13-17 signed and immediately appealable without the requirement of a
13-18 motion for rehearing.
13-19 Sec. 8. (a) A driver's license suspended under this article
13-20 may not be reinstated and another driver's license may not be
13-21 issued until the person whose driver's license has been suspended
13-22 pays to the department a fee of $100 in addition to any other fee
13-23 required by law.
13-24 (b) If a suspension under this article is rescinded by the
13-25 department, an administrative law judge, or a court, payment of a
13-26 reinstatement fee is not required.
13-27 (c) Fees paid under this section shall be deposited in the
14-1 state treasury to the credit of the operator's and chauffeur's
14-2 license fund and may be appropriated only to the department to
14-3 administer this article and the driver's license suspension
14-4 provisions of Chapter 434, Acts of the 61st Legislature, Regular
14-5 Session, 1969 (Article 6701l-5, Vernon's Texas Civil Statutes).
14-6 Sec. 9. The department and the State Office of
14-7 Administrative Hearings shall adopt rules to administer this
14-8 article.
14-9 SECTION 2. Subsection (e), Section 22, Chapter 173, Acts of
14-10 the 47th Legislature, Regular Session, 1941 (Article 6687b,
14-11 Vernon's Texas Civil Statutes), is amended to read as follows:
14-12 (e) The judge or officer holding a hearing under Subsection
14-13 (a), (b), or (d) of this section, or the court trying an appeal
14-14 under Section 31 of this Act, on determining that the License shall
14-15 be suspended or revoked, may, when it appears to the satisfaction
14-16 of the court that the ends of justice and the best interests of the
14-17 public as well as the defendant will be subserved thereby,
14-18 recommend that the revocation or suspension be probated on terms
14-19 and conditions deemed by the officer or judge to be necessary or
14-20 proper. The report to the department of the results of the hearing
14-21 must include the terms and conditions of such probation. When
14-22 probation is recommended by the judge or officer presiding at a
14-23 hearing, the department shall probate the suspension or revocation.
14-24 <This subsection does not apply to an appeal under Section 31 of
14-25 this Act for suspension of a driver's license or denial of
14-26 operating privileges under Section 2, Chapter 434, Acts of the 61st
14-27 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
15-1 Civil Statutes).>
15-2 SECTION 3. Section 23A, Chapter 173, Acts of the 47th
15-3 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
15-4 Civil Statutes), as amended by Chapters 473 and 1127, Acts of the
15-5 70th Legislature, Regular Session, 1987, is amended by amending
15-6 Subsection (f) and adding Subsection (g) to read as follows:
15-7 (f) The judge hearing the petition shall enter an order
15-8 either finding that no essential need exists for the operation of a
15-9 motor vehicle or enter an order finding an essential need for
15-10 operating a motor vehicle. In the event the judge enters the order
15-11 finding an essential need, he shall also, as part of the order,
15-12 determine the actual need of the petitioner in operating a motor
15-13 vehicle. The order shall require the petitioner to give proof of a
15-14 valid policy of automobile liability insurance in accordance with
15-15 the Texas Motor Vehicle Safety-Responsibility Act<, as amended>
15-16 (Article 6701h, Vernon's Texas Civil Statutes). If the person's
15-17 license has been suspended following a conviction under Article
15-18 6701l-1, Revised Statutes, or Section 19.05(a)(2), Penal Code, but
15-19 only on conviction of a second or subsequent offense under this
15-20 article or section, the order may restrict the person to the
15-21 operation of a motor vehicle equipped with a device that uses a
15-22 deep-lung breath analysis mechanism to make impractical the
15-23 operation of the motor vehicle if ethyl alcohol is detected in the
15-24 breath of the restricted operator. The defendant shall obtain the
15-25 device at his own cost. Notwithstanding the provisions of this
15-26 section, if a person is required to operate a motor vehicle in the
15-27 course and scope of the person's employment and if the vehicle is
16-1 owned by the employer, the person may operate that vehicle without
16-2 installation of an approved ignition interlock device if the
16-3 employer has been notified of such driving privilege restriction
16-4 and if proof of that notification is with the vehicle. This
16-5 employment exemption does not apply, however, if the business
16-6 entity that owns the vehicle is owned or controlled by the person
16-7 whose driving privilege has been restricted. The order shall be
16-8 definite as to hours of the day, days of the week, specific reasons
16-9 for travel, and areas or routes of travel to be permitted, except
16-10 that the petitioner shall not be allowed to operate a motor vehicle
16-11 more than four (4) hours in any twenty-four (24) consecutive hours.
16-12 On a proper showing of necessity, however, the court may waive the
16-13 four-hour restriction and allow the petitioner to operate a motor
16-14 vehicle for any period determined by the court that does not exceed
16-15 twelve (12) hours in any twenty-four (24) consecutive hours. When
16-16 a person's license is suspended under Article 6687b-1, Revised
16-17 Statutes, or Chapter 434, Acts of the 61st Legislature, Regular
16-18 Session, 1969 (Article 6701l-5, Vernon's Texas Civil Statutes), and
16-19 the person has not had a prior suspension arising from an
16-20 alcohol-related or drug-related enforcement contact, as defined in
16-21 Article 6687b-1, Revised Statutes, in the five years immediately
16-22 preceding the date of the person's arrest, an order under this
16-23 section granting the person an occupational license to meet an
16-24 essential need shall be immediately effective. Provided, that the
16-25 court shall order the petitioner to comply with the alcohol
16-26 counselling and rehabilitation program requirements contained in
16-27 Subsection (g) of this section. If the person's driver's license
17-1 has been suspended as a result of an alcohol-related or
17-2 drug-related enforcement contact, as defined in Section 1(2)(B) or
17-3 (C), Article 6687b-1, Revised Statutes, in the five years
17-4 immediately preceding the date of the person's arrest, the order
17-5 may not be effective before 90 days after the effective date of the
17-6 suspension. If the person's driver's license has been suspended as
17-7 a result of a conviction under Article 6701l-1, Revised Statutes,
17-8 or under Section 19.05(a)(2), Penal Code, in the five years
17-9 immediately preceding the date of the person's arrest, the order
17-10 may not be effective before 180 days after the effective date of
17-11 the suspension. An order entered by the court shall extend until
17-12 the end of <for> the period of the <original> suspension. A
17-13 certified copy of the petition and the court order setting out the
17-14 judge's finding and the restrictions shall be forwarded to the
17-15 Department. The petitioner may use a copy of the court order as a
17-16 restricted license for thirty (30) days after the date the order is
17-17 effective <entered>. The Department of Public Safety shall
17-18 promulgate rules and regulations for the approval of models and
17-19 classes of devices used under this subsection and Section 25(a) of
17-20 this Act. The Department by rule shall establish standards for the
17-21 calibration and maintenance of devices, but the calibration and
17-22 maintenance of each individual device is the responsibility of the
17-23 manufacturer of that device. If the Department approves a device,
17-24 the Department shall notify the manufacturer in writing of that
17-25 fact. Written notice from the Department to a manufacturer
17-26 approving a device is admissible in any civil or criminal
17-27 proceeding in this state. The manufacturer shall reimburse the
18-1 Department for any cost incurred by the Department in approving a
18-2 device under this subsection. The Department may not be held
18-3 liable in a civil or criminal proceeding arising out of the use of
18-4 a device approved under this subsection.
18-5 (g) The court granting an occupational license under this
18-6 section to a person whose driver's license has been suspended
18-7 under Article 6687b-1, Revised Statutes, or Chapter 434, Acts of
18-8 the 61st Legislature, Regular Session, 1969 (Article 6701l-5,
18-9 Vernon's Texas Civil Statutes), shall require the person to attend
18-10 a program approved by the court designed to provide counselling and
18-11 rehabilitation services to persons for alcohol dependence, which
18-12 requirement shall be placed in the order granting the occupational
18-13 license. The program required as a condition of the occupational
18-14 license shall not be the program provided for in Section 24(g) of
18-15 this Act or in Section 13, Article 42.12, Code of Criminal
18-16 Procedure. The court may require the person to report to
18-17 the court on a periodic basis to verify that the person is
18-18 attending the required program. The court may, on a finding that
18-19 the person has not complied with the order requiring attendance at
18-20 the program, revoke the order granting the occupational license. A
18-21 certified copy of the order revoking the occupational license shall
18-22 be forwarded to the Department, which shall suspend the person's
18-23 license for a period of 60 days if the original suspension was
18-24 under Article 6687b-1, Revised Statutes, or for 120 days if the
18-25 original suspension was under Chapter 434, Acts of the 61st
18-26 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
18-27 Civil Statutes). The person shall not be eligible for an
19-1 occupational license during the period of the suspension provided
19-2 for under this subsection. The effective date of a suspension
19-3 under this subsection shall be the date on which the order is
19-4 signed, and such suspension shall be cumulative of the original
19-5 suspension.
19-6 SECTION 4. Section 31, Chapter 173, Acts of the 47th
19-7 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
19-8 Civil Statutes), is amended to read as follows:
19-9 Sec. 31. RIGHT OF APPEAL TO COURTS. (a) Any person whose
19-10 driver's license has been suspended or revoked after an
19-11 administrative hearing under Section 22(a) of this Act, any person
19-12 whose license suspension has been probated under Section 22(e) of
19-13 this Act, and any person denied a license or whose driver's license
19-14 has been cancelled by the Department, except where such
19-15 cancellation, suspension, or revocation is automatic under the
19-16 provisions of this Act, shall have the right to file a petition
19-17 within thirty (30) days after the date the order of the Department
19-18 was entered for a hearing in the matter in the County Court at Law
19-19 in the county wherein such person shall reside, or if there be no
19-20 County Court at Law therein, then in the county court of said
19-21 county, and such court is hereby vested with jurisdiction, and it
19-22 shall be its duty to set the matter for hearing upon thirty (30)
19-23 days written notice to the Department, and thereupon to take
19-24 testimony and examine into the facts of the case, and to determine
19-25 whether the petitioner is entitled to a license or is subject to
19-26 suspension, cancellation, denial, or revocation of license under
19-27 the provisions of this Act. A person who appeals under this
20-1 section must send a copy of the person's petition, certified by the
20-2 clerk of the court in which the petition is filed, to the
20-3 Department by certified mail. An order of the Department is
20-4 binding on the person to whom it pertains unless the person appeals
20-5 the order as provided by this section or unless the person
20-6 establishes that a hearing was timely requested, as provided by
20-7 Section 24(g) of this Act <or Section 2(f), Chapter 434, Acts of
20-8 the 61st Legislature, Regular Session, 1969 (Article 6701l-5,
20-9 Vernon's Texas Civil Statutes)>, but was not held. The Department
20-10 may appeal the ruling of the judge or officer presiding at the
20-11 hearing by filing a petition in the manner provided by this
20-12 section.
20-13 (b) The trial on appeal as herein provided for shall be a
20-14 trial de novo and the licensee shall have the right of trial by
20-15 jury.
20-16 (c) The filing of a petition of appeal as provided by this
20-17 section shall abate an order of suspension, probated suspension,
20-18 revocation, or cancellation until the trial herein provided for
20-19 shall have been consummated and final judgment thereon is had.
20-20 SECTION 5. Subsections (a) and (d), Section 34, Chapter 173,
20-21 Acts of the 47th Legislature, Regular Session, 1941 (Article 6687b,
20-22 Vernon's Texas Civil Statutes), are amended to read as follows:
20-23 (a) A person commits an offense if the person operates a
20-24 motor vehicle on a highway:
20-25 (1) after the person's driver's license has been
20-26 cancelled under this Act and the person does not have a valid
20-27 license that was subsequently issued under this Act;
21-1 (2) during a period that a suspension or revocation,
21-2 imposed under this Act, <or> Chapter 434, Acts of the 61st
21-3 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
21-4 Civil Statutes), or Article 6687b-1, Revised Statutes, of the
21-5 person's driver's license or privilege is in effect; or
21-6 (3) while the person's driver's license is expired, if
21-7 the license expired during a period of suspension imposed under
21-8 this Act, <or> Chapter 434, Acts of the 61st Legislature, Regular
21-9 Session, 1969 (Article 6701l-5, Vernon's Texas Civil Statutes), or
21-10 Article 6687b-1, Revised Statutes.
21-11 (d) Except as provided by Subsection (c) of this section, it
21-12 is an affirmative defense to prosecution of an offense, other than
21-13 an offense listed in Section 24(a) of this Act, that the person had
21-14 not received actual notice of a suspension, revocation,
21-15 cancellation, or prohibition order concerning the person's driver's
21-16 license or privilege to operate a motor vehicle. For purposes of
21-17 this section, actual notice shall be presumed if the notice was
21-18 mailed according to procedures provided by law <sent by certified
21-19 mail to the last known address of the person as shown by the
21-20 records of the Department>.
21-21 SECTION 6. Subsection (l), Section 25, Texas Commercial
21-22 Driver's License Act (Article 6687b-2, Revised Statutes), is
21-23 amended to read as follows:
21-24 (l) A person who is subject to disqualification under this
21-25 article may also have the person's <his> driver's license
21-26 suspended, revoked, canceled, or denied under Chapter 173, Acts of
21-27 the 47th Legislature, Regular Session, 1941 (Article 6687b,
22-1 Vernon's Texas Civil Statutes); Article 6687b-1, Revised
22-2 Statutes;<,> Chapter 434, Acts of the 61st Legislature, Regular
22-3 Session, 1969 (Article 6701l-5, Vernon's Texas Civil Statutes);<,>
22-4 or the Texas Motor Vehicle Safety-Responsibility Act (Article
22-5 6701h, Vernon's Texas Civil Statutes), if the conduct providing
22-6 grounds for disqualification under this article also constitutes a
22-7 ground for suspension, revocation, cancellation, or denial under
22-8 any of those laws.
22-9 SECTION 7. Subsections (e) and (f), Section 27, Texas
22-10 Commercial Driver's License Act (Article 6687b-2, Revised
22-11 Statutes), are amended to read as follows:
22-12 (e) On receipt of the sworn report of a peace officer
22-13 submitted under this section, the department shall disqualify the
22-14 driver from driving a commercial motor vehicle under Section 25 of
22-15 this article. The procedure for notice and disqualification under
22-16 this section is that specified in Section 2<(f)>, Chapter 434, Acts
22-17 of the 61st Legislature, Regular Session, 1969 (Article 6701l-5,
22-18 Vernon's Texas Civil Statutes), or in Article 6687b-1, Revised
22-19 Statutes, except that the department shall disqualify the person
22-20 from driving a commercial motor vehicle for the period of time
22-21 authorized by this article if, in a hearing held under this
22-22 section, the court finds that:
22-23 (1) probable cause existed that the person was driving
22-24 a commercial motor vehicle while having alcohol, a controlled
22-25 substance, or drug in the person's system;
22-26 (2) the person was offered an opportunity to give a
22-27 specimen under the provisions of this article; and
23-1 (3) the person either submitted a specimen that
23-2 disclosed an alcohol concentration of 0.04 or more or refused to
23-3 submit a specimen.
23-4 (f) An appeal of a disqualification under this section is
23-5 subject to Sections 7(g)-(k), Article 6687b-1, Revised Statutes
23-6 <Section 31, Chapter 173, Acts of the 47th Legislature, Regular
23-7 Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes)>. A
23-8 disqualification under this section may not be probated.
23-9 SECTION 8. Subsections (d) and (e), Article 6701l-1, Revised
23-10 Statutes, are amended to read as follows:
23-11 (d) If it is shown on the trial of an offense under this
23-12 article that the person has previously been convicted one time of
23-13 an offense under this article, the offense is punishable by:
23-14 (1) a fine of not less than $300 or more than $2,000;
23-15 and
23-16 (2) confinement in jail for a term of not less than 15
23-17 days or more than two years, of which not less than 48 hours must
23-18 be served consecutively.
23-19 (e) If it is shown on the trial of an offense under this
23-20 article that the person has previously been convicted two or more
23-21 times of an offense under this article, the offense is punishable
23-22 by:
23-23 (1) a fine of not less than $500 or more than $2,000;
23-24 and
23-25 (2) confinement in jail for a term of not less than 30
23-26 days or more than two years, of which not less than 48 hours must
23-27 be served consecutively, or imprisonment in the state penitentiary
24-1 for a term of not less than 60 days or more than five years.
24-2 SECTION 9. Section 2, Chapter 434, Acts of the 61st
24-3 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
24-4 Civil Statutes), is amended to read as follows:
24-5 Sec. 2. (a) Except as provided by Subsection (i) of Section
24-6 3 of this Act, if a person under arrest refuses, upon the request
24-7 of a peace officer, to give a specimen designated by the peace
24-8 officer as provided in Section 1, none shall be taken.
24-9 (b) Before requesting a person to give a specimen, the
24-10 officer shall inform the person orally and in writing that if the
24-11 person refuses to give the specimen, that refusal may be admissible
24-12 in a subsequent prosecution, and that the person's license, permit,
24-13 or privilege to operate a motor vehicle will be automatically
24-14 suspended for not less than 90 days <after the date of adjournment
24-15 of the hearing provided for in Subsection (f) of this section>,
24-16 whether or not the person is subsequently prosecuted as a result of
24-17 the arrest. The officer shall inform the person that if the person
24-18 gives a specimen designated by the officer, and an analysis of the
24-19 specimen shows the person had an alcohol concentration of a level
24-20 specified in Article 6701l-1, Revised Statutes, the person's
24-21 license, permit, or privilege to operate a motor vehicle will be
24-22 automatically suspended for not less than 60 days, whether or not
24-23 the person is subsequently prosecuted as a result of the arrest.
24-24 If the officer determines that the person is a resident without a
24-25 license or permit to operate a motor vehicle in this state, the
24-26 officer shall inform the person that the <Texas> Department of
24-27 Public Safety shall deny to the person the issuance of a license or
25-1 permit for a period of not less than 90 days if the person refuses
25-2 to give the specimen, or for a period of not less than 60 days if
25-3 the person gives a specimen designated by the officer, and an
25-4 analysis of the specimen shows the person had an alcohol
25-5 concentration of a level specified in Article 6701l-1(a)(2)(B),
25-6 Revised Statutes <after the date of adjournment of the hearing
25-7 provided for in Subsection (f) of this section>, whether or not the
25-8 person is subsequently prosecuted as a result of the arrest. The
25-9 officer shall inform the person that the person has a right to a
25-10 hearing on suspension or denial if, not later than the 15th <20th>
25-11 day after the date on which the person receives notice of
25-12 suspension or denial or the person is presumed to have received
25-13 notice of suspension or denial by mail as provided by law <is
25-14 received>, the department receives, at its headquarters in Austin,
25-15 a written demand, including facsimile transmissions, or a demand in
25-16 another form prescribed by the department, that the hearing be
25-17 held.
25-18 (c) The officer shall provide the person with a written
25-19 statement containing the information required by Subsection (b) of
25-20 this section. If the person refuses the request of the officer to
25-21 give a specimen, the officer shall request the person to sign a
25-22 statement that the officer requested that he give a specimen, that
25-23 he was informed of the consequences of not giving a specimen, and
25-24 that he refused to give a specimen.
25-25 (d) If the person refuses to give a specimen, whether the
25-26 refusal was express or the result of an intentional failure of the
25-27 person to give a specimen as designated by the peace officer, the
26-1 officer before whom the refusal was made shall serve notice of
26-2 driver's license suspension or denial to the person and
26-3 <immediately> make a written report of the refusal to the Director
26-4 of the <Texas> Department of Public Safety.
26-5 (e) The director shall approve the form of the report. The
26-6 report must show the grounds for the officer's belief that the
26-7 person had been operating a motor vehicle while intoxicated. The
26-8 report must also show that the person refused to give a specimen,
26-9 as evidenced by:
26-10 (1) a written refusal to give a specimen, signed by
26-11 the person; or
26-12 (2) a statement signed by the officer stating that the
26-13 person refused to give a specimen and also refused to sign the
26-14 statement requested by the officer under Subsection (c) of this
26-15 section <article>.
26-16 (f) A copy of the notice of suspension or denial and the
26-17 refusal report under Subsection (e) of this section shall be
26-18 forwarded by the officer to the department before the end of the
26-19 fifth business day after the date of the arrest.
26-20 (g) The department shall develop forms for notices of
26-21 suspension or denial that shall be used by all state and local law
26-22 enforcement agencies.
26-23 (h) On receipt of a report of a peace officer under this
26-24 section, if the officer did not serve notice of suspension or
26-25 denial of driver's license at the time of refusal to give a
26-26 specimen, the department shall issue notice to the person of
26-27 driver's license suspension or prohibition. In the event the
27-1 officer did not serve notice of suspension at the time of refusal,
27-2 the department shall mail notice of suspension or prohibition, by
27-3 certified mail, to the address of the person, as shown by the
27-4 records of the department, and to the address given in the peace
27-5 officer's report, if different. Notice is presumed received on the
27-6 fifth day after the date it is mailed. A notice of suspension or
27-7 prohibition must clearly state the reason and statutory grounds for
27-8 and the effective date of the action, the right of the person to a
27-9 hearing, how to request a hearing, and the period within which a
27-10 request for a hearing must be received by the department.
27-11 (i) If a person under arrest refuses on the request of a
27-12 peace officer to give a specimen designated by the peace officer as
27-13 provided in this Act, <When the director receives the report, the
27-14 director shall suspend> the person's license, permit, or
27-15 <nonresident> operating privilege shall be suspended for 90 days,
27-16 or, if the person is a resident without a permit to operate a
27-17 motor vehicle in this state, the department shall issue an order
27-18 prohibiting the person from obtaining a license or permit<,> for 90
27-19 days <effective 28 days after the date the person receives notice
27-20 by certified mail or 31 days after the date the director sends
27-21 notice by certified mail, if the person has not accepted delivery
27-22 of the notice>. The period of suspension or prohibition under this
27-23 Act is 180 days if the person's driving record shows one or more
27-24 previous alcohol-related or drug-related enforcement contacts, as
27-25 defined in Section 1(2)(B) or (C), Article 6687b-1, Revised
27-26 Statutes, during the five years immediately preceding the date of
27-27 the person's arrest. The period of suspension or prohibition under
28-1 this Act is one year if the person's driving record shows one or
28-2 more previous alcohol-related or drug-related enforcement contacts,
28-3 as defined in Section 1(2)(A), Article 6687b-1, Revised Statutes,
28-4 during the five years immediately preceding the date of the
28-5 person's arrest. A suspension or prohibition under this section is
28-6 effective on the 40th day after the date on which the person
28-7 receives from an arresting officer notice of suspension or denial
28-8 under Subsection (d) of this section or the 40th day after the date
28-9 on which the person is considered to have received, from the
28-10 department, notice of suspension or prohibition by mail under
28-11 Subsection (h) of this section.
28-12 (j) If, not later than the 15th <20th> day after the date on
28-13 which the person receives notice of suspension or prohibition under
28-14 Subsection (d) of this section or is presumed to have received
28-15 notice by mail under Subsection (h) of this section <by certified
28-16 mail or the 23rd day after the date the director sent notice by
28-17 certified mail, if the person has not accepted delivery of the
28-18 notice>, the department receives, at its headquarters in Austin, in
28-19 writing or by another manner prescribed by the department, a
28-20 <written> demand that a hearing be held, the State Office of
28-21 Administrative Hearings <department> shall hold a hearing before
28-22 the effective date of the notice of suspension or prohibition. A
28-23 request for a hearing stays the suspension of a driver's license or
28-24 the prohibition on obtaining a driver's license until the date of
28-25 the final decision of the administrative law judge<, not later than
28-26 the 10th day after the day of receipt of the demand, request a
28-27 court to set the hearing for the earliest possible date>. For the
29-1 purpose of a hearing, jurisdiction is vested in an administrative
29-2 law judge employed by the chief administrative law judge of the
29-3 State Office of Administrative Hearings. A hearing shall be held
29-4 at a location designated by the State Office of Administrative
29-5 Hearings in the county in which the person was alleged to have
29-6 committed the offense for which the person was arrested or at a
29-7 site designated by the State Office of Administrative Hearings no
29-8 more than 75 miles from the county seat of the county of the
29-9 arrest, except as provided by Subsection (k) of this section.
29-10 Provided that in counties with a population of 300,000 or more
29-11 according to the most recent federal census, hearings shall be held
29-12 in the county of arrest, unless held as provided in Subsection (k)
29-13 of this section. A hearing shall be held not earlier than 10 days
29-14 after the date of notification to the person, unless the parties
29-15 agree to waive this requirement. The State Office of
29-16 Administrative Hearings shall provide for the stenographic or
29-17 electronic recording of all hearings.
29-18 (k) With the consent of the person and the department, the
29-19 administrative law judge may conduct a hearing under Subsection (b)
29-20 of this section by telephone conference call.
29-21 (l) The issues at a hearing are:
29-22 (1) whether reasonable suspicion or probable cause
29-23 existed to stop or arrest the person;
29-24 (2) whether probable cause existed that the person was
29-25 driving or in actual physical control of a motor vehicle in a
29-26 public place while intoxicated;
29-27 (3) whether the person was placed under arrest by the
30-1 officer and was offered an opportunity to give a specimen under
30-2 this Act; and
30-3 (4) whether the person refused to give a specimen on
30-4 request of the officer.
30-5 (m) If the administrative law judge finds in the affirmative
30-6 as to all four issues, the suspension order shall be sustained
30-7 <The hearing shall be set in the same manner as a hearing under
30-8 Section 22(a), Chapter 173, Acts of the 47th Legislature, Regular
30-9 Session, 1941, as amended (Article 6687b, Vernon's Texas Civil
30-10 Statutes). If, upon such hearing the court finds (1) that probable
30-11 cause existed that such person was driving or in actual physical
30-12 control of a motor vehicle on the highway or upon a public beach
30-13 while intoxicated, (2) that the person was placed under arrest by
30-14 the officer and was offered an opportunity to give a specimen under
30-15 the provisions of this Act, and (3) that such person refused to
30-16 give a specimen upon request of the officer, then the Director of
30-17 the Texas Department of Public Safety shall suspend the person's
30-18 license or permit to drive, or any nonresident operating privilege
30-19 for a period of 90 days, as ordered by the court>. If the person
30-20 is a resident without a license or permit to operate a motor
30-21 vehicle in this State, the <Texas> Department of Public Safety
30-22 shall continue to deny to the person the issuance of a license or
30-23 permit for the applicable period provided by this Act <90 days>.
30-24 If the administrative law judge does not find in the affirmative as
30-25 to all four issues <(g) If, after the hearing, the court finds in
30-26 the negative one of the issues required by Subsection (f) of this
30-27 section>, the department <director> shall reinstate any license,
31-1 permit, or privilege to operate a motor vehicle and shall rescind
31-2 any order prohibiting the issuance of a license or permit on the
31-3 basis of the person's refusal to give a specimen under Subsection
31-4 (d) of this section.
31-5 (n) A suspension under this Act may not be probated.
31-6 (o) A person who requests a hearing and fails to appear,
31-7 without good cause, waives the right to a hearing, and the
31-8 department's determination is final.
31-9 (p) Notwithstanding the provisions of Subsection (j) of this
31-10 section, if no later than five days before the date of a scheduled
31-11 hearing the department has received a request for a continuance
31-12 from the person who has requested a hearing, the department shall
31-13 reschedule the hearing to a date no sooner than the fifth day after
31-14 the date on which the department received the request for the
31-15 continuance, unless otherwise agreed by both parties. A
31-16 continuance under this section stays a suspension of a driver's
31-17 license until the date of the final decision of the administrative
31-18 law judge. A person who has requested a hearing under this article
31-19 may obtain only one continuance under this subsection, unless a
31-20 bona fide medical condition be shown which prevents the person from
31-21 attending the hearing in which case one additional continuance may
31-22 be granted for a period not to exceed 10 days.
31-23 (q) If a hearing under Subsection (j) of this section is not
31-24 requested, the department's suspension or prohibition is final, and
31-25 the person has no right to appeal the suspension or prohibition.
31-26 (r) The determination of the department or administrative
31-27 law judge is a civil matter, is independent of and is not an
32-1 estoppel as to any matter in issue in an adjudication of a criminal
32-2 charge arising from the occurrence that is the basis for the
32-3 suspension or prohibition, and does not preclude litigation of the
32-4 same or similar facts in a criminal prosecution. Except as
32-5 provided by this subsection, the disposition of a criminal charge
32-6 does not affect a driver's license suspension or prohibition under
32-7 this Act and is not an estoppel as to any matter in issue in a
32-8 suspension or prohibition proceeding under this Act. Provided,
32-9 that if a criminal charge under Article 6701l-1, Revised Statutes,
32-10 or Section 19.05(a)(2), Penal Code, results in an acquittal, a
32-11 suspension under this article shall not be imposed. If a
32-12 suspension under this article has already been imposed, the
32-13 department shall rescind the suspension and remove references to
32-14 the suspension from the computerized driving record of the
32-15 individual.
32-16 (s) Administrative hearings under this section are governed
32-17 by Subsections (f)-(k) and Subsection (p) of Section 7, Article
32-18 6687b-1, Revised Statutes.
32-19 (t) <(h)> A written report submitted by an officer under
32-20 Subsection (d) of this section <article> is a governmental record
32-21 for the purposes of Section 37.10, Penal Code.
32-22 (u) <(i)> A person whose license, permit, or privilege is
32-23 suspended under this section, or who is the subject of a
32-24 prohibition order issued under this section, is subject to Section
32-25 34, Chapter 173, Acts of the 47th Legislature, Regular Session,
32-26 1941 (Article 6687b, Vernon's Texas Civil Statutes).
32-27 (v)(1) A driver's license suspended under this Act may not
33-1 be reinstated or a new license issued until the person whose
33-2 driver's license has been suspended pays to the department a fee of
33-3 $100 in addition to any other fee required by law. A person
33-4 subject to a prohibition order issued under this Act may not obtain
33-5 a driver's license after the period of prohibition has ended unless
33-6 the person pays to the department a fee of $100 in addition to any
33-7 other fee required by law.
33-8 (2) If a suspension or prohibition under this Act is
33-9 rescinded by the department, an administrative law judge, or a
33-10 court under this Act, payment of a fee under this subsection is not
33-11 required for reinstatement or issuance of a driver's license.
33-12 (3) Fees paid under this subsection shall be deposited
33-13 in the state treasury to the credit of the operator's and
33-14 chauffeur's license fund and may be appropriated only to the
33-15 department to administer this Act and Article 6687b-1, Revised
33-16 Statutes.
33-17 SECTION 10. Section 3, Chapter 434, Acts of the 61st
33-18 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
33-19 Civil Statutes), is amended by amending Subsection (d), as added by
33-20 Chapter 434, Acts of the 61st Legislature, Regular Session, 1969,
33-21 and by amending Subsection (f) to read as follows:
33-22 (d) The person who gave a specimen of breath, blood, urine,
33-23 or other bodily substances in connection with this Act may, upon
33-24 request and within a reasonable time not to exceed two hours after
33-25 the arrest, have a physician, qualified technician, chemist, or
33-26 registered professional nurse of his own choosing draw a specimen
33-27 and have an analysis made of his blood in addition to any specimen
34-1 taken and analyzed at the direction of a peace officer. Such
34-2 person shall be allowed a reasonable opportunity to contact a
34-3 person listed in this subsection who may draw blood, provided that
34-4 a peace officer or law enforcement agency is not required to
34-5 transport for such testing a person who has requested that a blood
34-6 specimen be drawn under this subsection. The failure or inability
34-7 to obtain an additional specimen or analysis by a person shall not
34-8 preclude the admission of evidence relating to the analysis of the
34-9 specimen taken at the direction of the peace officer under this
34-10 Act. A peace officer, any other person acting for or on behalf of
34-11 the state, or a law enforcement agency shall not be held liable for
34-12 damages arising from the person's request to have a specimen of his
34-13 blood drawn under this subsection.
34-14 (f) If for any reason the person's request to have a
34-15 chemical test is refused by the officer or any other person acting
34-16 for or on behalf of the state, if the person was not provided a
34-17 reasonable opportunity to contact a person listed in Subsection (d)
34-18 of this section who may draw blood, or if reasonable access was not
34-19 allowed to the arrested person for purposes of blood testing by a
34-20 person listed in Subsection (d) of this section who may draw blood,
34-21 such fact may be introduced into evidence on the trial of such
34-22 person.
34-23 SECTION 11. Subsection (j), Section 3, Chapter 434, Acts of
34-24 the 61st Legislature, Regular Session, 1969 (Article 6701l-5,
34-25 Vernon's Texas Civil Statutes), is amended by adding Subdivision
34-26 (8) to read as follows:
34-27 (8) "Alcohol-related or drug-related enforcement
35-1 contact" has the meaning assigned by Section 1, Article 6687b-1,
35-2 Revised Statutes.
35-3 SECTION 12. Section 4, Chapter 434, Acts of the 61st
35-4 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
35-5 Civil Statutes), is amended to read as follows:
35-6 Sec. 4. Appeals from all actions of the department,
35-7 following an administrative hearing under this Act, in suspending,
35-8 denying, or refusing to issue a license shall be governed by
35-9 <Chapter 173, Acts of the 47th Legislature, Regular Session, 1941,
35-10 as amended (>Article 6687b-1 <6687b>, Revised <Vernon's Texas
35-11 Civil> Statutes<)>.
35-12 SECTION 13. Chapter 434, Acts of the 61st Legislature,
35-13 Regular Session, 1969 (Article 6701l-5, Vernon's Texas Civil
35-14 Statutes), is amended by adding Section 4A to read as follows:
35-15 Sec. 4A. The Department of Public Safety and the State
35-16 Office of Administrative Hearings shall adopt rules to administer
35-17 this Act.
35-18 SECTION 14. Subsection (a), Section 21, Administrative
35-19 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
35-20 Civil Statutes), is amended to read as follows:
35-21 (a) This Act does not apply to suspensions, revocations,
35-22 cancellations, denials, or disqualifications of driver's licenses
35-23 or commercial driver's licenses as authorized in Article IV,
35-24 Chapter 173, Acts of the 47th Legislature, Regular Session, 1941,
35-25 as amended (Article 6687b, Vernon's Texas Civil Statutes), the
35-26 Texas Commercial Driver's License Act (Article 6687b-2, Revised
35-27 Statutes), the Texas Motor Vehicle Safety-Responsibility Act
36-1 (Article 6701h, Vernon's Texas Civil Statutes), <Chapter 434, Acts
36-2 of the 61st Legislature, Regular Session, 1969 (Article 6701l-5,
36-3 Vernon's Texas Civil Statutes),> or Section 13 <6f>, Article 42.12,
36-4 Code of Criminal Procedure<, as added by Chapter 427, Acts of the
36-5 69th Legislature, Regular Session, 1985>.
36-6 SECTION 15. Subsection (a), Section 13, Article 42.12, Code
36-7 of Criminal Procedure, is amended to read as follows:
36-8 (a) A court granting probation to a defendant convicted of
36-9 an offense under Article 6701l-1, Revised Statutes, and punished
36-10 under Subsection (d), (e), or (f) of that article shall require as
36-11 a condition of probation that the defendant submit to:
36-12 (1) 72 hours of detention in a jail if the defendant
36-13 was convicted under Subsection (d) of Article 6701l-1, Revised
36-14 Statutes, of which not less than 48 hours must be served
36-15 consecutively, except that in lieu of the requirement of 48
36-16 consecutive hours of detention, the court may require not less than
36-17 80 hours of community service; 10 days of detention in a jail if
36-18 the defendant was convicted under Subsection (e) of Article
36-19 6701l-1, Revised Statutes, of which not less than 48 hours must be
36-20 served consecutively, except that in lieu of the requirement of 48
36-21 consecutive hours of detention, the court may require not less than
36-22 160 hours of community service; or 30 days of detention in a jail
36-23 if the defendant was convicted under Subsection (f) of Article
36-24 6701l-1, Revised Statutes, of which not less than 48 hours must be
36-25 served consecutively, except that in lieu of the requirement of 48
36-26 consecutive hours of detention, the court may require not less than
36-27 360 hours of community service; and
37-1 (2) an evaluation by a probation officer or by a
37-2 person, program, or facility approved by the Texas Commission on
37-3 Alcohol and Drug Abuse for the purpose of having the facility
37-4 prescribe and carry out a course of conduct necessary for the
37-5 rehabilitation of the defendant's drug or alcohol dependence
37-6 condition.
37-7 SECTION 16. Chapter 55, Code of Criminal Procedure, is
37-8 amended by adding Article 55.06 to read as follows:
37-9 Art. 55.06. License Suspensions and Revocations. A person
37-10 may not use the provisions of this chapter to expunge records
37-11 relating to the suspension or revocation of a driver's license,
37-12 permit, or privilege to operate a motor vehicle except as provided
37-13 in Section 5(d), Article 6687b-1, Revised Statutes, or Section
37-14 2(r), Chapter 434, Acts of the 61st Legislature, Regular Session,
37-15 1969 (Article 6701l-5, Vernon's Texas Civil Statutes).
37-16 SECTION 17. The Department of Public Safety shall enter into
37-17 a contract with the State Office of Administrative Hearings to
37-18 carry out the provisions of this Act. The interagency contract
37-19 shall set forth the procedures necessary for the orderly scheduling
37-20 of hearings and other matters requiring cooperation. The agreement
37-21 shall also provide for an interagency transfer of funds to the
37-22 State Office of Administrative Hearings necessary to cover the cost
37-23 to the State Office of Administrative Hearings in carrying out its
37-24 responsibilities. This transfer of funds may be made only from
37-25 amounts appropriated to the department.
37-26 SECTION 18. (a) The changes in law made by this Act for the
37-27 punishment for an offense under Article 6701l-1, Revised Statutes,
38-1 and for the suspension of driver's licenses following a conviction
38-2 for an offense under that article or Section 19.05, Penal Code,
38-3 apply only to an offense committed on or after the effective date
38-4 of this Act. The changes in law relating to the administrative
38-5 suspension of a driver's license and to a suspension for refusal to
38-6 give a specimen of breath or blood apply only to a person who is
38-7 arrested on or after the effective date of this Act.
38-8 (b) For the purposes of this Act, an offense was committed
38-9 before the effective date of this Act if any element of the offense
38-10 occurred before the effective date of this Act. The suspension of
38-11 a driver's license for a reason other than the conviction of an
38-12 offense is controlled by the law in effect when the action that is
38-13 the basis for the suspension occurred. An offense committed before
38-14 the effective date of this Act is covered by the law in effect when
38-15 the offense was committed, and the former law is continued in
38-16 effect for this purpose.
38-17 SECTION 19. The Department of Public Safety shall deliver an
38-18 annual report to the legislature relating to the operation and
38-19 administration of Article 6687b-1, Revised Statutes, as added by
38-20 this Act. The report shall be separate from any other report of
38-21 the Department of Public Safety to the legislature. The report
38-22 shall include statistical information relating to the number of
38-23 driver's licenses suspended under Article 6687b-1, Revised
38-24 Statutes, the number of administrative hearings requested by
38-25 persons whose licenses were suspended, the number of administrative
38-26 hearings conducted under Article 6687b-1, Revised Statutes, by the
38-27 State Office of Administrative Hearings and the results of those
39-1 hearings, the number of judicial appeals of hearings conducted
39-2 under Article 6687b-1, Revised Statutes, and the results of those
39-3 appeals, the number of requests for testimony of breath test
39-4 operators and breath test supervisors and the outcomes of hearings,
39-5 the number of continuances requested by persons subject to license
39-6 suspension hearings, the amount of federal funds received by the
39-7 state as a result of this program, together with recommendations
39-8 concerning the operation or administration of Article 6687b-1,
39-9 Revised Statutes, and other information that demonstrates whether
39-10 the purposes of this Act are being achieved.
39-11 SECTION 20. This Act takes effect January 1, 1995.
39-12 SECTION 21. Notwithstanding any other legislation enacted by
39-13 the 73rd Legislature, Regular Session, the reinstatement fees
39-14 provided for in this Act shall prevail with regard to any
39-15 suspension imposed under this Act.
39-16 SECTION 22. The importance of this legislation and the
39-17 crowded condition of the calendars in both houses create an
39-18 emergency and an imperative public necessity that the
39-19 constitutional rule requiring bills to be read on three several
39-20 days in each house be suspended, and this rule is hereby suspended.