By Alexander H.B. No. 830
75R2529 JD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the civil and criminal consequences of operating a
1-3 motor vehicle while intoxicated.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 49.04, Penal Code, is amended to read as
1-6 follows:
1-7 Sec. 49.04. Driving While Intoxicated. (a) A person
1-8 commits an offense if the person is intoxicated while operating a
1-9 motor vehicle in a public place.
1-10 (b) Except as provided by Subsection (c) and Section 49.09,
1-11 an offense under this section is a Class A [B] misdemeanor, except
1-12 that the court shall impose [with] a minimum term of confinement
1-13 that is not less than six days [of 72 hours].
1-14 (c) If it is shown on the trial of an offense under this
1-15 section that at the time of the offense the person operating the
1-16 motor vehicle had an open container of alcohol in the person's
1-17 immediate possession, the offense is a Class A [B] misdemeanor,
1-18 except that the court shall impose [with] a minimum term of
1-19 confinement that is not less than 12 [of six] days.
1-20 SECTION 2. Section 49.09, Penal Code, is amended to read as
1-21 follows:
1-22 Sec. 49.09. Enhanced Offenses and Penalties. (a) If it is
1-23 shown on the trial of an offense under Section 49.04[, 49.05, or
1-24 49.06] that the person has previously been convicted one time of an
2-1 offense relating to the operating of a motor vehicle while
2-2 intoxicated, an offense of operating an aircraft while intoxicated,
2-3 or an offense of operating a watercraft while intoxicated, the
2-4 offense is a state jail felony [Class A misdemeanor, with a minimum
2-5 term of confinement of 30 days].
2-6 (b) If it is shown on the trial of an offense under Section
2-7 49.04[, 49.05, or 49.06] that the person has previously been
2-8 convicted two times of an offense relating to the operating of a
2-9 motor vehicle while intoxicated, an offense of operating an
2-10 aircraft while intoxicated, or an offense of operating a watercraft
2-11 while intoxicated, the offense is a felony of the third degree,
2-12 except that the court shall impose a minimum term of imprisonment
2-13 that is not less than 90 days.
2-14 (c) If it is shown on the trial of an offense under Section
2-15 49.05 or 49.06 that the person has previously been convicted one
2-16 time of an offense relating to the operating of a motor vehicle
2-17 while intoxicated, an offense of operating an aircraft while
2-18 intoxicated, or an offense of operating a watercraft while
2-19 intoxicated, the offense is a Class A misdemeanor, except that the
2-20 court shall impose a minimum term of confinement that is not less
2-21 than 15 days.
2-22 (d) If it is shown on the trial of an offense under Section
2-23 49.05 or 49.06 that the person has previously been convicted two
2-24 times of an offense relating to the operating of a motor vehicle
2-25 while intoxicated, an offense of operating an aircraft while
2-26 intoxicated, or an offense of operating a watercraft while
2-27 intoxicated, the offense is a felony of the third degree.
3-1 (e) [(c)] For the purposes of this section:
3-2 (1) "Offense relating to the operating of a motor
3-3 vehicle while intoxicated" means:
3-4 (A) an offense under Section 49.04;
3-5 (B) an offense under Section 49.07 or 49.08, if
3-6 the vehicle operated was a motor vehicle;
3-7 (C) an offense under Article 6701l-1, Revised
3-8 Statutes, as that law existed before September 1, 1994;
3-9 (D) an offense under Article 6701l-2, Revised
3-10 Statutes, as that law existed before January 1, 1984;
3-11 (E) an offense under Section 19.05(a)(2), as
3-12 that law existed before September 1, 1994, if the vehicle operated
3-13 was a motor vehicle; or
3-14 (F) an offense under the laws of another state
3-15 that prohibit the operation of a motor vehicle while intoxicated.
3-16 (2) "Offense of operating an aircraft while
3-17 intoxicated" means:
3-18 (A) an offense under Section 49.05;
3-19 (B) an offense under Section 49.07 or 49.08, if
3-20 the vehicle operated was an aircraft;
3-21 (C) an offense under Section 1, Chapter 46, Acts
3-22 of the 58th Legislature, Regular Session, 1963 (Article 46f-3,
3-23 Vernon's Texas Civil Statutes), as that law existed before
3-24 September 1, 1994;
3-25 (D) an offense under Section 19.05(a)(2), as
3-26 that law existed before September 1, 1994, if the vehicle operated
3-27 was an aircraft; or
4-1 (E) an offense under the laws of another state
4-2 that prohibit the operation of an aircraft while intoxicated.
4-3 (3) "Offense of operating a watercraft while
4-4 intoxicated" means:
4-5 (A) an offense under Section 49.06;
4-6 (B) an offense under Section 49.07 or 49.08, if
4-7 the vehicle operated was a watercraft;
4-8 (C) an offense under Section 31.097, Parks and
4-9 Wildlife Code, as that law existed before September 1, 1994;
4-10 (D) an offense under Section 19.05(a)(2), as
4-11 that law existed before September 1, 1994, if the vehicle operated
4-12 was a watercraft; or
4-13 (E) an offense under the laws of another state
4-14 that prohibit the operation of a watercraft while intoxicated.
4-15 (f) [(d)] For the purposes of this section, a conviction for
4-16 an offense under Section 49.04, 49.05, 49.06, 49.07, or 49.08 that
4-17 occurs on or after September 1, 1994, is a final conviction,
4-18 whether the sentence for the conviction is imposed or probated.
4-19 (g) [(e)] A conviction may not be used for purposes of
4-20 enhancement under this section if:
4-21 (1) the conviction was a final conviction under
4-22 Subsection (f) [(d)] and was for an offense committed more than 10
4-23 years before the offense for which the person is being tried was
4-24 committed; and
4-25 (2) the person has not been convicted of an offense
4-26 under Section 49.04, 49.05, 49.06, 49.07, or 49.08 or any offense
4-27 related to operating a motor vehicle while intoxicated committed
5-1 within 10 years before the date on which the offense for which the
5-2 person is being tried was committed.
5-3 (h) [(f)] A conviction may be used for purposes of
5-4 enhancement under this section or enhancement under Subchapter D,
5-5 Chapter 12, but not under both this section and Subchapter D.
5-6 SECTION 3. Chapter 42, Code of Criminal Procedure, is
5-7 amended by adding Articles 42.015, 42.0321, 42.038, and 42.039 to
5-8 read as follows:
5-9 Art. 42.015. FINDING THAT OFFENSE ORIGINALLY CHARGED
5-10 INVOLVED OPERATION OF MOTOR VEHICLE IN VIOLATION OF CHAPTER 49,
5-11 PENAL CODE. (a) In the trial of an offense, if the court
5-12 determines that the defendant was initially charged with an
5-13 "offense relating to the operating of a motor vehicle while
5-14 intoxicated," as that term is defined by Section 49.09, Penal Code,
5-15 in violation of Chapter 49, Penal Code, and the charge was reduced
5-16 under the terms of a plea bargain, the court shall make an
5-17 affirmative finding of that fact and include the affirmative
5-18 finding in the judgment of the case.
5-19 (b) If the defendant is convicted of a subsequent offense
5-20 relating to the operating of a motor vehicle while intoxicated, in
5-21 pronouncing sentence on the defendant for the subsequent offense,
5-22 the court shall consider the affirmative finding of the court under
5-23 Subsection (a) of this article.
5-24 Art. 42.0321. GOOD CONDUCT FOR CERTAIN DEFENDANTS. A
5-25 defendant sentenced to confinement for an offense under Section
5-26 49.04, Penal Code, or an offense under Section 49.07 or 49.08 of
5-27 that code that relates to the operating of a motor vehicle while
6-1 intoxicated may not begin to accrue commutation under Article
6-2 42.032 of this code until the defendant successfully completes an
6-3 educational program jointly approved by the Texas Commission on
6-4 Alcohol and Drug Abuse, the Department of Public Safety, and the
6-5 traffic safety section of the Texas Department of Transportation
6-6 that is designed to rehabilitate persons who have operated a motor
6-7 vehicle while intoxicated.
6-8 Art. 42.038. IMPOUNDMENT OF MOTOR VEHICLE. (a) In addition
6-9 to the penalty otherwise provided by law, if it is shown on the
6-10 trial of an offense under Section 49.04, Penal Code, or an offense
6-11 under Section 49.07 or 49.08 of that code relating to the operating
6-12 of a motor vehicle while intoxicated, that the person has
6-13 previously been convicted one time of an "offense relating to the
6-14 operating of a motor vehicle while intoxicated," as that term is
6-15 defined by Section 49.09, Penal Code, the court shall impound the
6-16 motor vehicle being operated by the defendant at the time of the
6-17 offense, if the defendant was an owner of the vehicle at the time
6-18 of the offense and is an owner of the vehicle on the date of
6-19 conviction.
6-20 (b) The duration of an impoundment under this article is 270
6-21 days.
6-22 (c) The court shall impose the cost of an impoundment under
6-23 this article against the defendant.
6-24 (d) The court shall notify the Texas Department of
6-25 Transportation, on a form designed and provided by the department,
6-26 that the defendant's vehicle has been impounded under this article.
6-27 (e) An owner may not sell or transfer title to a motor
7-1 vehicle while the vehicle is impounded under this article, except
7-2 on application to the court that impounded the vehicle. If the
7-3 court is satisfied that the proposed sale or transfer would be in
7-4 good faith for valid consideration and would not be to circumvent
7-5 this article, and that the defendant will be deprived of custody or
7-6 control of the vehicle, the court shall approve the transfer and
7-7 authorize the release of the vehicle.
7-8 (f) If, after impoundment of a vehicle under this article,
7-9 title to the vehicle is transferred by foreclosure, sale on
7-10 execution, cancellation of a conditional sales contract, or
7-11 judicial order, the court shall authorize the release of the
7-12 vehicle and deliver the impounded vehicle to the new owner or
7-13 transferee.
7-14 Art. 42.039. FORFEITURE OF MOTOR VEHICLE. (a) In addition
7-15 to the penalty otherwise provided by law, if it is shown on the
7-16 trial of an offense under Section 49.04, Penal Code, or an offense
7-17 under Section 49.07 or 49.08 of that code relating to the operating
7-18 of a motor vehicle while intoxicated, that the person has
7-19 previously been convicted two times of an "offense relating to the
7-20 operating of a motor vehicle while intoxicated," as that term is
7-21 defined by Section 49.09, Penal Code, the court shall order the
7-22 motor vehicle being operated by the defendant at the time of the
7-23 offense forfeited to the state and county, if the defendant was an
7-24 owner of the vehicle at the time of the offense and is an owner of
7-25 the vehicle on the date of conviction.
7-26 (b) A motor vehicle that has been forfeited under this
7-27 article shall be sold at a public auction under the direction of
8-1 the sheriff after notice of public auction as provided by law for
8-2 other sheriff's sales. The proceeds of the sale shall be delivered
8-3 to the county clerk and shall be disposed of as follows:
8-4 (1) to any person, including a bona fide lienholder,
8-5 secured party, or other party holding an interest in the vehicle in
8-6 the nature of a security interest, to the extent of that person's
8-7 interest;
8-8 (2) one-half of the balance, if any, to be deposited
8-9 in the county treasury; and
8-10 (3) one-half of the balance, if any, to be sent to the
8-11 comptroller for deposit to the credit of the general revenue fund.
8-12 (c) The Texas Department of Transportation shall issue a
8-13 certificate of title to any person who purchases a motor vehicle
8-14 under this article.
8-15 SECTION 4. Section 15, Article 42.12, Code of Criminal
8-16 Procedure, is amended by adding Subsection (d-1) to read as
8-17 follows:
8-18 (d-1) The judge placing on community supervision a defendant
8-19 convicted of an offense under Section 49.04, Penal Code, and
8-20 punished under Section 49.09(a) of that code, shall impose as a
8-21 condition of supervision that the defendant submit at the beginning
8-22 of the period of supervision to a period of confinement in a state
8-23 jail felony facility for a term of not less than 30 days, or if at
8-24 the time of the offense the defendant had an open container of
8-25 alcohol in the defendant's immediate possession, a term of not less
8-26 than 60 days.
8-27 SECTION 5. Chapter 498, Government Code, is amended by
9-1 adding Section 498.0031 to read as follows:
9-2 Sec. 498.0031. ACCRUAL OF GOOD CONDUCT TIME BY CERTAIN
9-3 INMATES. An inmate imprisoned for an offense under Section 49.04,
9-4 Penal Code, or an offense under Section 49.07 or 49.08 of that code
9-5 that relates to the operating of a motor vehicle while intoxicated
9-6 may not begin to accrue good conduct time under Section 498.003
9-7 until the inmate successfully completes an educational program
9-8 jointly approved by the Texas Commission on Alcohol and Drug Abuse,
9-9 the Department of Public Safety, the traffic safety section of the
9-10 Texas Department of Transportation, and the institutional division
9-11 that is designed to rehabilitate persons who have operated a motor
9-12 vehicle while intoxicated.
9-13 SECTION 6. Section 521.341, Transportation Code, is amended
9-14 to read as follows:
9-15 Sec. 521.341. REQUIREMENTS FOR AUTOMATIC LICENSE SUSPENSION
9-16 OR REVOCATION. (a) Except as provided by Subsection (b) and
9-17 Sections 521.344(d)-(i), a license is automatically suspended on
9-18 final conviction of the license holder of:
9-19 (1) an offense under Section 19.05, Penal Code,
9-20 committed as a result of the holder's criminally negligent
9-21 operation of a motor vehicle;
9-22 (2) an offense under Section 38.04, Penal Code;
9-23 (3) an offense under Section 49.04 or 49.08 [49.07],
9-24 Penal Code[, committed as a result of the introduction of alcohol
9-25 into the body];
9-26 (4) [(3)] an offense under Section 49.07 [49.08],
9-27 Penal Code, if the person used a motor vehicle in the commission of
10-1 the offense;
10-2 (5) [(4)] an offense punishable as a felony under the
10-3 motor vehicle laws of this state;
10-4 (6) [(5)] an offense under Section 550.021; or
10-5 (7) [(6)] an offense under Section 521.451 or 521.453.
10-6 (b) The license of a person shall be automatically revoked
10-7 on final conviction of an offense under Section 49.04, Penal Code,
10-8 if the defendant is punished under Section 49.09(b), Penal Code, or
10-9 a third or subsequent conviction of an offense under Section 49.07
10-10 or 49.08 of that code. A license revoked under this subsection may
10-11 not be reinstated, and the department is prohibited from issuing a
10-12 new driver's license to the person.
10-13 SECTION 7. Section 521.344(a), Transportation Code, is
10-14 amended to read as follows:
10-15 (a) Except as provided by Sections 521.342(b) and 521.345,
10-16 and by Subsections (d)-(i), if a person is convicted of an offense
10-17 under Section 49.04 or 49.07, Penal Code, [that is committed as a
10-18 result of the introduction of alcohol into the body,] the license
10-19 suspension:
10-20 (1) begins on a date set by the court that is not
10-21 earlier than the date of the conviction or later than the 30th day
10-22 after the date of the conviction, as determined by the court; and
10-23 (2) continues for a period of [set by the court
10-24 according to the following schedule]:
10-25 (A) 18 months [not less than 90 days or more
10-26 than one year] if the person is punished under Section 49.04 or
10-27 49.07, Penal Code; or
11-1 (B) five [not less than 180 days or more than
11-2 two] years, if the person is punished under Section 49.09, Penal
11-3 Code.
11-4 SECTION 8. Section 521.457, Transportation Code, is amended
11-5 by amending Subsection (e), redesignating Subsection (g) as
11-6 Subsection (h), and adding a new Subsection (g) to read as follows:
11-7 (e) Except as provided by Subsections [Subsection] (f) and
11-8 (g), an offense under this section is a misdemeanor punishable by:
11-9 (1) a fine of not less than $100 or more than $500;
11-10 and
11-11 (2) confinement in county jail for a term of not less
11-12 than 72 hours or more than six months.
11-13 (g) If at the time of the offense the defendant's driver's
11-14 license was suspended under Section 521.341(a)(1), (3), or (4) or
11-15 was revoked under Section 521.341(b), an offense under this section
11-16 is:
11-17 (1) a Class A misdemeanor; or
11-18 (2) a third degree felony, if the defendant has been
11-19 previously convicted of an offense under this section and punished
11-20 under Subdivision (1).
11-21 (h) [(g)] For purposes of this section, a conviction for an
11-22 offense that involves operation of a motor vehicle after August 31,
11-23 1987, is a final conviction, regardless of whether the sentence for
11-24 the conviction is probated.
11-25 SECTION 9. (a) In addition to the substantive changes in
11-26 law made by this Act, this Act amends Section 521.341,
11-27 Transportation Code, to conform to the changes in the law made by
12-1 Section 3, Chapter 708, Acts of the 74th Legislature, Regular
12-2 Session, 1995.
12-3 (b) Section 3, Chapter 708, Acts of the 74th Legislature,
12-4 Regular Session, 1995, is repealed.
12-5 (c) To the extent of any conflict, this Act prevails over
12-6 another Act of the 75th Legislature, Regular Session, 1997,
12-7 relating to nonsubstantive additions to and corrections in enacted
12-8 codes.
12-9 SECTION 10. This Act takes effect September 1, 1997. The
12-10 new substantive changes in law made by this Act apply only to the
12-11 punishment for or the civil consequences of a first or subsequent
12-12 offense committed on or after that date. An offense committed
12-13 before the effective date of this Act is covered by the law in
12-14 effect when the offense was committed, and the former law is
12-15 continued in effect for that purpose. For purposes of this
12-16 section, an offense was committed before the effective date of this
12-17 Act if any element of the offense occurred before that date.
12-18 SECTION 11. The importance of this legislation and the
12-19 crowded condition of the calendars in both houses create an
12-20 emergency and an imperative public necessity that the
12-21 constitutional rule requiring bills to be read on three several
12-22 days in each house be suspended, and this rule is hereby suspended.