By Zaffirini S.B. No. 521
74R4983 JD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the civil and criminal consequences of an arrest or
1-3 conviction for an offense involving the operation of a motor
1-4 vehicle while intoxicated.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 1, Article 6687b-1, Revised Statutes, is
1-7 amended by amending Subdivisions (1), (2), and (5) and adding
1-8 Subdivision (7) to read as follows:
1-9 (1) "Alcohol concentration" has the meaning assigned
1-10 by Section 49.01 <Article 6701l-1(a)>, Penal Code <Revised
1-11 Statutes>.
1-12 (2) "Alcohol-related or drug-related enforcement
1-13 contact" means a <driver's> license suspension, disqualification,
1-14 or prohibition order under the laws of this state or another state
1-15 following:
1-16 (A) conviction of an offense prohibiting the
1-17 operation of a motor vehicle while intoxicated<, while under the
1-18 influence of alcohol, or while under the influence of a controlled
1-19 substance>;
1-20 (B) a refusal to submit to the taking of a blood
1-21 or breath specimen following an arrest for an offense prohibiting
1-22 the operation of a motor vehicle while intoxicated<, while under
1-23 the influence of alcohol, or while under the influence of a
1-24 controlled substance>; or
2-1 (C) an analysis of a blood or breath specimen
2-2 showing an alcohol concentration of a level specified in Section
2-3 49.01(2)(B) <Article 6701l-1(a)>, Penal Code <Revised Statutes>,
2-4 following an arrest for an offense prohibiting the operation of a
2-5 motor vehicle while intoxicated.
2-6 (5) "License" <"Driver's license"> has the meaning
2-7 assigned by Section 1(3), Chapter 173, Acts of the 47th
2-8 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
2-9 Civil Statutes).
2-10 (7) "Intoxicated" has the meaning assigned by Section
2-11 49.01(2), Penal Code.
2-12 SECTION 2. Section 2, Article 6687b-1, Revised Statutes, is
2-13 amended to read as follows:
2-14 Sec. 2. (a) If a person arrested for an offense under
2-15 <Article 6701l-1, Revised Statutes, or> Section 49.04
2-16 <19.05(a)(2)>, Penal Code, or under Section 49.07 or 49.08 of that
2-17 code, if the offense involved the operation of a motor vehicle,
2-18 submits to the taking of a specimen of breath or blood and an
2-19 analysis of the specimen shows the person had an alcohol
2-20 concentration of a level specified in Section 49.01(2)(B) <Article
2-21 6701l-1(a)(2)(B)>, Penal Code <Revised Statutes>, the arresting
2-22 officer shall serve notice of <driver's> license suspension or
2-23 prohibition personally on the arrested person.
2-24 (b) If a person arrested for an offense under <Article
2-25 6701l-1, Revised Statutes, or> Section 49.04 <19.05(a)(2)>, Penal
2-26 Code, or under Section 49.07 or 49.08 of that code, if the offense
2-27 involved the operation of a motor vehicle, submits to the taking of
3-1 a specimen of breath or blood and an analysis of the specimen is
3-2 not returned to the arresting officer before the person is admitted
3-3 to bail, released from custody, or committed to jail, the arresting
3-4 officer shall attempt to serve notice of <driver's> license
3-5 suspension or prohibition personally on the arrested person.
3-6 (c) A copy of the notice of suspension or prohibition shall
3-7 be sent by the officer to the department before the end of the 10th
3-8 <fifth business> day after the date of the arrest.
3-9 (d) The department shall develop forms for notices of
3-10 suspension and prohibition that shall be used by all state and
3-11 local law enforcement agencies.
3-12 SECTION 3. Section 3, Article 6687b-1, Revised Statutes, is
3-13 amended by amending Subsection (a) and adding Subsection (c) to
3-14 read as follows:
3-15 (a) A peace officer who arrests a person for an offense
3-16 under <Article 6701l-1, Revised Statutes, or> Section 49.04
3-17 <19.05(a)(2)>, Penal Code, or under Section 49.07 or 49.08 of that
3-18 code, if the offense involved the operation of a motor vehicle,
3-19 shall, before the end of the 10th <fifth business> day after the
3-20 date of the arrest, send the department a <sworn> report of
3-21 information relevant to the arrest, if analysis of the specimen
3-22 showed an alcohol concentration of a level specified in Section
3-23 49.01(2)(B) <Article 6701l-1(a)(2)(B)>, Penal Code <Revised
3-24 Statutes>. The report shall identify the arrested person, include
3-25 a statement under oath of <state> the officer's grounds for
3-26 believing that the person committed the offense, and give the
3-27 analysis of the specimen<, and include a copy of the criminal
4-1 complaint filed in the case>.
4-2 (c) A report submitted by a peace officer under Subsection
4-3 (a) of this section is a governmental record for the purposes of
4-4 Section 37.10, Penal Code.
4-5 SECTION 4. Section 4, Article 6687b-1, Revised Statutes, is
4-6 amended to read as follows:
4-7 Sec. 4. (a) On receipt of a report of a peace officer under
4-8 this article, if the officer did not serve notice of suspension or
4-9 prohibition of <driver's> license at the time of obtaining the
4-10 results of the analysis of the blood or breath specimen, the
4-11 department, in accordance with Section 5 of this article, shall
4-12 make the determination and issue notice of <driver's> license
4-13 suspension or prohibition if required.
4-14 (b) In the event that the officer did not serve notice of
4-15 suspension or prohibition of <driver's> license in accordance with
4-16 Section 5 of this article, the department shall mail<, by certified
4-17 mail,> notice of suspension or prohibition to the address of the
4-18 person, as shown by the records of the department, or <and> to the
4-19 address given in the peace officer's report, if different. Notice
4-20 is presumed received on the fifth day after the day it is mailed.
4-21 (c) A notice of suspension or prohibition must clearly state
4-22 the reason and statutory grounds for suspension or prohibition, the
4-23 effective date of suspension or prohibition, the right of the
4-24 person to a hearing, how to request a hearing, and the time limit
4-25 within which a request for a hearing must be made. If the
4-26 department does not suspend the person's <driver's> license or
4-27 prohibit the issuance of a license to the person, the department
5-1 shall notify the person of its determination and shall rescind any
5-2 notice of suspension or prohibition served on the person.
5-3 SECTION 5. Sections 5(a), (b), and (d), Article 6687b-1,
5-4 Revised Statutes, are amended to read as follows:
5-5 (a) The department shall suspend the <driver's> license of a
5-6 person or prohibit the person from obtaining a license if it
5-7 determines that the person had an alcohol concentration of a level
5-8 specified in Section 49.01(2)(B) <Article 6701l-1(a)(2)(B)>, Penal
5-9 Code <Revised Statutes>, while driving or operating a motor vehicle
5-10 in a public place.
5-11 (b) The department may not suspend the <driver's> license of
5-12 a person or prohibit the issuance of a license to the person if the
5-13 analysis of the person's breath or blood, submitted at the request
5-14 of a peace officer, determined that the person had an alcohol
5-15 concentration of a level below that specified in Section
5-16 49.01(2)(B) <Article 6701l-1(a)(2)(B)>, Penal Code <Revised
5-17 Statutes>, at the time of taking the specimen.
5-18 (d) The determination of the department is a civil matter,
5-19 is independent of and is not an estoppel as to any matter in issue
5-20 in an adjudication of a criminal charge arising from the occurrence
5-21 that is the basis for the suspension or prohibition, and does not
5-22 preclude litigation of the same or similar facts in a criminal
5-23 prosecution. Except as provided by this subsection, the
5-24 disposition of a criminal charge does not affect a <driver's>
5-25 license suspension or prohibition under this article and is not an
5-26 estoppel as to any matter in issue in a <driver's> license
5-27 suspension or prohibition proceeding under this article. Provided,
6-1 that if a criminal charge under <Article 6701l-1, Revised Statutes,
6-2 or> Section 49.04, 49.07, or 49.08 <19.05(a)(2)>, Penal Code,
6-3 results in an acquittal, a suspension or prohibition under this
6-4 article shall not be imposed. If a suspension or prohibition under
6-5 this article has already been imposed, the department shall rescind
6-6 the suspension or prohibition and remove references to the
6-7 suspension or prohibition from the computerized driving record of
6-8 the individual.
6-9 SECTION 6. Section 6, Article 6687b-1, Revised Statutes, is
6-10 amended to read as follows:
6-11 Sec. 6. (a) A <driver's> license suspension or prohibition
6-12 under this article takes effect on the 40th day after the date on
6-13 which:
6-14 (1) the person received notice from the officer under
6-15 Section 2 of this article; or
6-16 (2) the person is presumed to have received notice of
6-17 suspension or prohibition from the department by mail under Section
6-18 4 of this article.
6-19 (b) A period of suspension or prohibition under this article
6-20 is:
6-21 (1) 60 days if the person's driving record shows no
6-22 prior alcohol-related or drug-related enforcement contact during
6-23 the five years immediately preceding the date of the person's
6-24 arrest; or
6-25 (2) 120 days if the person's driving record shows one
6-26 or more alcohol-related or drug-related enforcement contacts, as
6-27 defined in Section 1(2)(B) or (C) of this article, during the five
7-1 years immediately preceding the date of the person's arrest; or
7-2 (3) 180 days if the person's driving record shows one
7-3 or more alcohol-related or drug-related enforcement contacts, as
7-4 defined in Section 1(2)(A) of this article, during the five years
7-5 immediately preceding the date of the person's arrest.
7-6 (c) If a person's <driver's> license is suspended or the
7-7 person is prohibited from being issued a license under this article
7-8 and the person is also convicted of an offense under <Article
7-9 6701l-1, Revised Statutes, or> Section 49.04 <19.05(a)(2)>, Penal
7-10 Code, or of an offense involving the operation of a motor vehicle
7-11 under Section 49.07 or 49.08 of that code, arising out of the same
7-12 occurrence, the license suspensions and prohibitions required by
7-13 this article and by Section 24, Chapter 173, Acts of the 47th
7-14 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
7-15 Civil Statutes), or Section 25, Texas Commercial Driver's License
7-16 Act (Article 6687b-2, Revised Statutes), shall all be imposed.
7-17 Provided, that the court shall credit toward the period of
7-18 suspension or prohibition <of a person's license> required by
7-19 Section 24, Chapter 173, Acts of the 47th Legislature, Regular
7-20 Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes), or by
7-21 Section 25, Texas Commercial Driver's License Act (Article 6687b-2,
7-22 Revised Statutes), a period of suspension or prohibition imposed
7-23 under this article if the suspension or prohibition arose from the
7-24 same offense for which the court is suspending the person's
7-25 license. The court may not extend the credit to a person who has
7-26 been previously convicted of an offense under Article 6701l-1,
7-27 Revised Statutes, or Section 19.05(a)(2), Penal Code, as those laws
8-1 existed before September 1, 1994, an offense under Section 49.04,
8-2 Penal Code, or an offense involving the operation of a motor
8-3 vehicle under Section 49.07 or 49.08 of that code.
8-4 SECTION 7. Section 7, Article 6687b-1, Revised Statutes, is
8-5 amended by amending Subsections (a), (b), (d), (f), (g), (h), (j),
8-6 (l), (m), (n), (o), and (p) and adding Subsection (q) to read as
8-7 follows:
8-8 (a) A person who receives notice of suspension or
8-9 prohibition under this article may request a hearing in writing,
8-10 including facsimile transmissions, or by other manner prescribed by
8-11 the department. A request must be received by the department at
8-12 its headquarters in Austin not later than the 15th day after the
8-13 date notice of suspension or prohibition was given under Section 2
8-14 of this article or the 15th day after the date the person is
8-15 presumed to have received notice by mail under Section 4 of this
8-16 article. The department shall schedule the hearing. The hearing
8-17 shall be held before the effective date of the suspension or
8-18 prohibition. A request for a hearing stays the suspension or
8-19 prohibition <of driver's license> until the date of the final
8-20 decision of the administrative law judge. For the purpose of a
8-21 hearing, jurisdiction is vested in an administrative law judge
8-22 employed by the chief administrative law judge of the State Office
8-23 of Administrative Hearings.
8-24 (b) A hearing shall be held at a location designated by the
8-25 State Office of Administrative Hearings in the county in which the
8-26 person was alleged to have committed the offense for which the
8-27 person was arrested or at a site designated by the State Office of
9-1 Administrative Hearings no more than 75 miles from the county seat
9-2 of the county of the arrest, except as provided by Subsection (c)
9-3 of this section. Provided that in counties with a population of
9-4 300,000 or more according to the most recent federal census,
9-5 hearings shall be held in the county of arrest, unless held as
9-6 provided in Subsection (c) of this section. A hearing shall be
9-7 held not less than 10 days after the date of notification to the
9-8 person, unless the parties agree to waive this requirement. The
9-9 State Office of Administrative Hearings shall provide for the
9-10 stenographic or electronic recording of all hearings. The issue at
9-11 a hearing is whether, by a preponderance of the evidence, the
9-12 person had an alcohol concentration of a level specified in Section
9-13 49.01(2)(B) <Article 6701l-1(a)(2)(B)>, Penal Code <Revised
9-14 Statutes>, while driving or in actual physical control of a motor
9-15 vehicle in a public place, and reasonable suspicion to stop or
9-16 probable cause <existed> to <stop or> arrest the person existed.
9-17 If the administrative law judge finds in the affirmative as to this
9-18 issue, the suspension or prohibition order shall be sustained. If
9-19 the administrative law judge does not find in the affirmative as to
9-20 this issue, the department may not suspend <shall reinstate> any
9-21 license or prohibit<, permit, or privilege to operate a motor
9-22 vehicle and shall rescind an order prohibiting> the issuance of a
9-23 license <or permit>.
9-24 (d) The administrative law judge may not make an affirmative
9-25 finding under this section if the analysis of the person's breath
9-26 or blood, submitted at the request of a peace officer, determined
9-27 that the person had an alcohol concentration of a level below that
10-1 specified in Section 49.01(2)(B) <Article 6701l-1(a)>, Penal Code
10-2 <Revised Statutes>, at the time of taking the specimen.
10-3 (f) Notwithstanding Subsection (a) of this section, if no
10-4 later than five days before the date of a scheduled hearing the
10-5 department has received a request for a continuance from the person
10-6 who has requested a hearing, the department shall reschedule the
10-7 hearing to a date no sooner than the fifth day after the date on
10-8 which the matter was scheduled for the hearing <department received
10-9 the request for the continuance>, unless otherwise agreed by both
10-10 parties. A continuance under this section stays a suspension or
10-11 prohibition of a <driver's> license until the date of the final
10-12 decision of the administrative law judge. A person who has
10-13 requested a hearing under this article may obtain only one
10-14 continuance under this subsection, unless a bona fide medical
10-15 condition be shown which prevents the person from attending the
10-16 hearing in which case one additional continuance may be granted for
10-17 a period not to exceed 10 days.
10-18 (g) A person whose <driver's> license is <has been>
10-19 suspended or who is prohibited from being issued a license after a
10-20 hearing under this section may appeal the suspension or prohibition
10-21 by filing within 30 days after the date that the administrative law
10-22 judge's final determination is issued a petition in a county court
10-23 at law in the county where the person was arrested or, if there is
10-24 no county court at law in the county, in the county court of the
10-25 county. If the county judge is not a licensed attorney, the county
10-26 judge shall transfer the case to a district court for the county on
10-27 the motion of either party or of the judge.
11-1 (h) Except as provided by this subsection, filing an appeal
11-2 petition does not stay a suspension or prohibition. The filing of
11-3 an appeal petition stays a suspension or prohibition if the
11-4 person's <driver's> license has not been suspended as a result of
11-5 any alcohol-related or drug-related enforcement contact, as defined
11-6 in Section 1, Article 6687b-1, Revised Statutes, in the five years
11-7 immediately preceding the date of the person's arrest, and the
11-8 person has not been convicted under Article 6701l-1, Revised
11-9 Statutes, or Section 19.05(a)(2), Penal Code, as those laws existed
11-10 before September 1, 1994, an offense under Section 49.04, Penal
11-11 Code, or an offense involving the operation of a motor vehicle
11-12 under Section 49.07 or 49.08 of that code, in the 10 years
11-13 immediately preceding the date of the person's arrest, regardless
11-14 of whether the prior alcohol-related or drug-related contact or
11-15 conviction occurred prior to the effective date of this article. A
11-16 stay shall only be effective for a period of 90 days from the
11-17 filing of an appeal petition, and on the expiration of that period
11-18 the department shall impose the suspension or prohibition
11-19 previously ordered by the department. No extension of the stay or
11-20 additional stay order may be granted by the department or the
11-21 court. On appeal, review is on the record certified by the State
11-22 Office of Administrative Hearings with no additional testimony
11-23 except as provided by Subsection (j) of this section. Review shall
11-24 be based on the substantial evidence rule.
11-25 (j) On appeal, any party may apply to the court for leave to
11-26 present additional evidence, and the court, if satisfied that the
11-27 additional information is material and that there were good reasons
12-1 for the failure to present it in the hearing before an
12-2 administrative law judge, may order that the additional evidence be
12-3 taken before an administrative law judge on conditions determined
12-4 by the court. An administrative law judge may modify a prior
12-5 determination as to whether the person had an alcohol concentration
12-6 of a level specified in Section 49.01(2)(B) <Article 6701l-1(a)>,
12-7 Penal Code <Revised Statutes>, by reason of the additional
12-8 evidence. The administrative law judge shall file the evidence and
12-9 any modifications. A remand under this subsection does not stay
12-10 the suspension or prohibition <of a driver's license>.
12-11 (l) A suspension or prohibition under this article may not
12-12 be probated.
12-13 (m)(1) In a proceeding under this article:
12-14 (A) <,> the reliability of an instrument used to
12-15 take or analyze a specimen of a person's breath to determine
12-16 alcohol concentration and the validity of the results of the
12-17 analysis may be attested to by affidavit from the certified breath
12-18 test technical supervisor who is responsible for maintaining and
12-19 directing the operation of breath test instruments in compliance
12-20 with the rules of the department; and
12-21 (B) the chemical analysis of the specimen of the
12-22 person's blood or urine may be attested to by affidavit from the
12-23 individual who performed the analysis.
12-24 (2) An affidavit submitted under Subdivision (1)(A) of
12-25 this subsection must contain statements on the reliability of the
12-26 instrument and the analytical results and on compliance with state
12-27 law in the administration of the program. An affidavit of an
13-1 expert witness contesting the reliability of the instrument or the
13-2 results is admissible.
13-3 (3) Except as provided by Subsection (n) of this
13-4 section, the affidavit may be submitted in lieu of an appearance at
13-5 the hearing by the breath test operator, breath test technical
13-6 supervisor, individual who performed the chemical analysis, or
13-7 expert witness.
13-8 (n) Notwithstanding Subsection (m) of this section, if no
13-9 later than five business days before the date of a scheduled
13-10 hearing the department receives from the person who has requested
13-11 the hearing written notice, including facsimile transmissions,
13-12 requesting the presence at the hearing of the person who took the
13-13 specimen of the person's breath to determine alcohol concentration,
13-14 <or> the certified breath test technical supervisor who was
13-15 responsible for maintaining and directing the operation of the
13-16 breath test instrument used to analyze the specimen of the person's
13-17 breath, or the individual who performed the chemical analysis
13-18 <both>, each requested person must appear at the hearing. The
13-19 technical supervisor or the individual who performed the chemical
13-20 analysis may designate an authorized representative to appear for
13-21 that person at the hearing. The department may reschedule a
13-22 hearing once at least 48 hours before the time of the hearing if a
13-23 person requested under this section is unavailable. In addition,
13-24 the department may reschedule the hearing on a showing of good
13-25 cause if the requested person is not available at the time of the
13-26 hearing. A suspension or prohibition order may not go into effect
13-27 pending a final decision of the administrative law judge as a
14-1 result of a continuance granted under this subsection. If any
14-2 person whose presence is timely requested under this subsection
14-3 fails to appear at the hearing, without a showing of good cause, an
14-4 affidavit from that witness is inadmissible.
14-5 (o) A person whose <driver's> license is suspended under
14-6 this section is subject to Section 34, Chapter 173, Acts of the
14-7 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
14-8 Texas Civil Statutes).
14-9 (p) Chapter 2001, Government Code, <The Administrative
14-10 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
14-11 Civil Statutes)> applies to proceedings under this article to the
14-12 extent not inconsistent with this article. The State Office of
14-13 Administrative Hearings shall adopt rules that may conflict with
14-14 Chapter 2001, Government Code, <the Administrative Procedure and
14-15 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
14-16 Statutes)> as necessary to expedite the hearings process within the
14-17 time limits required by this article and applicable federal funding
14-18 guidelines. Notice required by this section to be given by the
14-19 department may be given telephonically or by other electronic
14-20 means, and written notice shall follow if such means are used.
14-21 Notice by mail is presumed received on the fifth day after the date
14-22 it is deposited with the United States Postal Service. The
14-23 decision of the administrative law judge is final when issued and
14-24 signed and immediately appealable without the requirement of a
14-25 motion for rehearing.
14-26 (q)(1) In a proceeding under this article, the testimony of
14-27 a witness, an item, including a document, video or audio recording,
15-1 or a statement that relates to an offense under Section 49.04,
15-2 49.07, or 49.08, Penal Code, and is in the possession of or under
15-3 the control of a law enforcement agency or the attorney prosecuting
15-4 the offense may not be the subject of a discovery order or
15-5 subpoenaed without the effective consent of that prosecuting
15-6 attorney.
15-7 (2) A person seeking testimony or an item described by
15-8 Subdivision (1) of this subsection has the burden of showing the
15-9 effective consent of the prosecuting attorney to the discovery
15-10 order or subpoena.
15-11 (3) This subsection does not apply to a peace
15-12 officer's report filed with the department under:
15-13 (A) Section 3 of this article; or
15-14 (B) Section 2(d) or (e), Chapter 434, Acts of
15-15 the 61st Legislature, Regular Session, 1969 (Article 6701l-5,
15-16 Revised Statutes).
15-17 SECTION 8. Sections 2(b), (d), (f), (g), (h), (i), (l), (p),
15-18 and (r), Chapter 434, Acts of the 61st Legislature, Regular
15-19 Session, 1969 (Article 6701l-5, Vernon's Texas Civil Statutes), are
15-20 amended to read as follows:
15-21 (b) Before requesting a person to give a specimen, the
15-22 officer shall inform the person orally and in writing that if the
15-23 person refuses to give the specimen, that refusal may be admissible
15-24 in a subsequent prosecution, and that the person's license, permit,
15-25 or privilege to operate a motor vehicle will be automatically
15-26 suspended for not less than 90 days if the person is 21 years of
15-27 age or older, or one year if the person is younger than 21 years of
16-1 age, whether or not the person is subsequently prosecuted as a
16-2 result of the arrest. The officer shall inform the person that if
16-3 the person gives a specimen designated by the officer, and an
16-4 analysis of the specimen shows the person had an alcohol
16-5 concentration of a level specified in Section 49.01(2)(B) <Article
16-6 6701l-1>, Penal Code <Revised Statutes>, the person's license,
16-7 permit, or privilege to operate a motor vehicle will be
16-8 automatically suspended for not less than 60 days, whether or not
16-9 the person is subsequently prosecuted as a result of the arrest.
16-10 If the officer determines that the person is a resident without a
16-11 license or permit to operate a motor vehicle in this state, the
16-12 officer shall inform the person that the Department of Public
16-13 Safety shall prohibit <deny to the person> the issuance of a
16-14 license or permit to the person for a period of not less than 90
16-15 days if the person is 21 years of age or older, or one year if the
16-16 person is younger than 21 years of age, if the person refuses to
16-17 give the specimen, or for a period of not less than 60 days if the
16-18 person gives a specimen designated by the officer, and an analysis
16-19 of the specimen shows the person had an alcohol concentration of a
16-20 level specified in Section 49.01(2)(B) <Article 6701l-1(a)(2)(B)>,
16-21 Penal Code <Revised Statutes>, whether or not the person is
16-22 subsequently prosecuted as a result of the arrest. The officer
16-23 shall inform the person that the person has a right to a hearing on
16-24 suspension or prohibition <denial> if, not later than the 15th day
16-25 after the date on which the person receives notice of suspension or
16-26 prohibition <denial> or the person is presumed to have received
16-27 notice of suspension or prohibition <denial> by mail as provided by
17-1 law, the department receives, at its headquarters in Austin, a
17-2 written demand, including facsimile transmissions, or a demand in
17-3 another form prescribed by the department, that the hearing be
17-4 held.
17-5 (d) If the person refuses to give a specimen, whether the
17-6 refusal was express or the result of an intentional failure of the
17-7 person to give a specimen as designated by the peace officer, the
17-8 officer before whom the refusal was made shall serve notice of
17-9 driver's license, permit, or privilege suspension or prohibition
17-10 <denial> to the person and make a written report of the refusal to
17-11 the Director of the Department of Public Safety.
17-12 (f) A copy of the notice of suspension or prohibition
17-13 <denial> and the <refusal> report under Subsection (e) of this
17-14 section shall be forwarded by the officer to the department before
17-15 the end of the 10th <fifth> business day after the date of the
17-16 arrest.
17-17 (g) The department shall develop forms for notices of
17-18 suspension or prohibition <denial> that shall be used by all state
17-19 and local law enforcement agencies.
17-20 (h) On receipt of a report of a peace officer under this
17-21 section, if the officer did not serve notice of suspension or
17-22 prohibition <denial> of driver's license, permit, or privilege at
17-23 the time of refusal to give a specimen, the department shall issue
17-24 notice to the person of driver's license suspension or prohibition.
17-25 In the event the officer did not serve notice of suspension or
17-26 prohibition at the time of refusal, the department shall mail
17-27 notice of suspension or prohibition<, by certified mail,> to the
18-1 address of the person, as shown by the records of the department,
18-2 or <and> to the address given in the peace officer's report, if
18-3 different. Notice is presumed received on the fifth day after the
18-4 date it is mailed. A notice of suspension or prohibition must
18-5 clearly state the reason and statutory grounds for and the
18-6 effective date of the action, the right of the person to a hearing,
18-7 how to request a hearing, and the period within which a request for
18-8 a hearing must be received by the department.
18-9 (i) If a person under arrest refuses on the request of a
18-10 peace officer to give a specimen designated by the peace officer as
18-11 provided in this Act, the person's license, permit, or privilege to
18-12 operate a motor vehicle on a public highway shall be suspended for
18-13 90 days if the person is 21 years of age or older, or one year if
18-14 the person is younger than 21 years of age, or, if the person is a
18-15 resident without a permit to operate a motor vehicle in this
18-16 state, the department shall issue an order prohibiting the person
18-17 from obtaining a license or permit for 90 days if the person is 21
18-18 years of age or older, or one year if the person is younger than 21
18-19 years of age. The period of suspension or prohibition under this
18-20 Act is 180 days if the person's driving record shows one or more
18-21 previous alcohol-related or drug-related enforcement contacts, as
18-22 defined in Section 1(2)(B) or (C), Article 6687b-1, Revised
18-23 Statutes, during the five years immediately preceding the date of
18-24 the person's arrest. The period of suspension or prohibition under
18-25 this Act is one year if the person's driving record shows one or
18-26 more previous alcohol-related or drug-related enforcement contacts,
18-27 as defined in Section 1(2)(A), Article 6687b-1, Revised Statutes,
19-1 during the five years immediately preceding the date of the
19-2 person's arrest. A suspension or prohibition under this section is
19-3 effective on the 40th day after the date on which the person
19-4 receives from an arresting officer notice of suspension or
19-5 prohibition <denial> under Subsection (d) of this section or the
19-6 40th day after the date on which the person is considered to have
19-7 received, from the department, notice of suspension or prohibition
19-8 by mail under Subsection (h) of this section.
19-9 (l) The issues at a hearing are:
19-10 (1) whether reasonable suspicion to stop or probable
19-11 cause <existed> to <stop or> arrest the person existed;
19-12 (2) whether probable cause existed that the person was
19-13 driving or in actual physical control of a motor vehicle in a
19-14 public place while intoxicated;
19-15 (3) whether the person was placed under arrest by the
19-16 officer and was offered an opportunity to give a specimen under
19-17 this Act; and
19-18 (4) whether the person refused to give a specimen on
19-19 request of the officer.
19-20 (p) Notwithstanding the provisions of Subsection (j) of this
19-21 section, if no later than five days before the date of a scheduled
19-22 hearing the department has received a request for a continuance
19-23 from the person who has requested a hearing, the department shall
19-24 reschedule the hearing to a date no sooner than the fifth day after
19-25 the date on which the hearing was scheduled <department received
19-26 the request for the continuance>, unless otherwise agreed by both
19-27 parties. A continuance under this section stays a suspension or
20-1 prohibition of a driver's license, permit, or privilege until the
20-2 date of the final decision of the administrative law judge. A
20-3 person who has requested a hearing under this article may obtain
20-4 only one continuance under this subsection, unless a bona fide
20-5 medical condition be shown which prevents the person from attending
20-6 the hearing in which case one additional continuance may be granted
20-7 for a period not to exceed 10 days.
20-8 (r) The determination of the department or administrative
20-9 law judge is a civil matter, is independent of and is not an
20-10 estoppel as to any matter in issue in an adjudication of a criminal
20-11 charge arising from the occurrence that is the basis for the
20-12 suspension or prohibition, and does not preclude litigation of the
20-13 same or similar facts in a criminal prosecution. Except as
20-14 provided by this subsection, the disposition of a criminal charge
20-15 does not affect a driver's license suspension or prohibition under
20-16 this Act and is not an estoppel as to any matter in issue in a
20-17 suspension or prohibition proceeding under this Act. Provided,
20-18 that if a criminal charge under <Article 6701l-1, Revised Statutes,
20-19 or> Section 49.04, 49.07, or 49.08 <19.05(a)(2)>, Penal Code,
20-20 results in an acquittal, a suspension under this article shall not
20-21 be imposed. If a suspension under this article has already been
20-22 imposed, the department shall rescind the suspension and remove
20-23 references to the suspension from the computerized driving record
20-24 of the individual.
20-25 SECTION 9. Section 13(a), Article 42.12, Code of Criminal
20-26 Procedure, as amended by Chapters 886 and 900, Acts of the 73rd
20-27 Legislature, Regular Session, 1993, is amended to read as follows:
21-1 (a) A judge granting community supervision to a defendant
21-2 convicted of an offense under Chapter 49, Penal Code, shall require
21-3 as a condition of community supervision that the defendant submit
21-4 to:
21-5 <(1) 72 hours of detention in a jail if the defendant
21-6 was convicted under Subsection (d) of Article 6701l-1, Revised
21-7 Statutes, of which not less than 48 hours must be served
21-8 consecutively, except that in lieu of the requirement of 48
21-9 consecutive hours of detention, the court may require not less than
21-10 80 hours of community service; 10 days of detention in a jail if
21-11 the defendant was convicted under Subsection (e) of Article
21-12 6701l-1, Revised Statutes, of which not less than 48 hours must be
21-13 served consecutively, except that in lieu of the requirement of 48
21-14 consecutive hours of detention, the court may require not less than
21-15 160 hours of community service; or 30 days of detention in a jail
21-16 if the defendant was convicted under Subsection (f) of Article
21-17 6701l-1, Revised Statutes, of which not less than 48 hours must be
21-18 served consecutively, except that in lieu of the requirement of 48
21-19 consecutive hours of detention, the court may require not less than
21-20 360 hours of community service; and>
21-21 (1) not less than 72 hours of continuous confinement
21-22 if the defendant was punished under Section 49.09(a); not less than
21-23 10 days of continuous confinement if the defendant was punished
21-24 under Section 49.09(b) or (c); or not less than 30 days of
21-25 continuous confinement if the defendant was convicted under Section
21-26 49.07; and
21-27 (2) an evaluation by a supervision officer or by a
22-1 person, program, or facility approved by the Texas Commission on
22-2 Alcohol and Drug Abuse for the purpose of having the facility
22-3 prescribe and carry out a course of conduct necessary for the
22-4 rehabilitation of the defendant's drug or alcohol dependence
22-5 condition.
22-6 SECTION 10. (a) The change in law made by this Act applies
22-7 only to an offense committed on or after the effective date of this
22-8 Act. For purposes of this section, an offense is committed before
22-9 the effective date of this Act if any element of the offense occurs
22-10 before the effective date.
22-11 (b) An offense committed before the effective date of this
22-12 Act is covered by the law in effect when the offense was committed,
22-13 and the former law is continued in effect for this purpose.
22-14 SECTION 11. The importance of this legislation and the
22-15 crowded condition of the calendars in both houses create an
22-16 emergency and an imperative public necessity that the
22-17 constitutional rule requiring bills to be read on three several
22-18 days in each house be suspended, and this rule is hereby suspended,
22-19 and that this Act take effect and be in force from and after its
22-20 passage, and it is so enacted.