By West, et al.                                         S.B. No. 35

         75R3393 DWS-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to driving while intoxicated or under the influence of

 1-3     alcohol by a minor and other actions of a minor concerning the

 1-4     acquisition, possession, and use of alcohol; providing penalties.

 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-6           SECTION 1.  Section 106.02, Alcoholic Beverage Code, is

 1-7     amended to read as follows:

 1-8           Sec. 106.02.  PURCHASE OF ALCOHOL BY A MINOR.  (a)  A minor

 1-9     commits an offense if he purchases an alcoholic beverage.

1-10           (b)  An offense under this section is punishable as provided

1-11     by Section 106.071 [Except as provided in Subsection (c) of this

1-12     section, a violation of this section is a misdemeanor punishable by

1-13     a fine of not less than $25 nor more than $200.]

1-14           [(c)  If a person has been previously convicted of a

1-15     violation of this section, or of Section 106.04 or 106.05 of this

1-16     code, a violation is a misdemeanor punishable by a fine of not less

1-17     than $250 nor more than $1,000].

1-18           SECTION 2.  Section 106.025, Alcoholic Beverage Code, is

1-19     amended to read as follows:

1-20           Sec. 106.025.  ATTEMPT TO PURCHASE ALCOHOL BY A MINOR.

1-21     (a)  A minor commits an offense if, with specific intent to commit

1-22     an offense under Section 106.02 of this code, the minor does an act

1-23     amounting to more than mere preparation that tends but fails to

 2-1     effect the commission of the offense intended.

 2-2           (b)  An offense under this section is punishable as provided

 2-3     by Section 106.071 [Except as provided by Subsection (c) of this

 2-4     section, a violation of this section is a misdemeanor punishable by

 2-5     a fine of not less than $25 nor more than $200.]

 2-6           [(c)  If a person has previously been convicted of a

 2-7     violation of this section, a violation is a misdemeanor punishable

 2-8     by a fine of not less than $250 nor more than $1,000].

 2-9           SECTION 3.  Section 106.03, Alcoholic Beverage Code, is

2-10     amended to read as follows:

2-11           Sec. 106.03.  SALE TO MINORS.  (a)  A person commits an

2-12     offense if with criminal negligence he sells an alcoholic beverage

2-13     to a minor.

2-14           (b)  A person who sells a minor an alcoholic beverage does

2-15     not commit an offense if the minor falsely represents himself to be

2-16     21 years old or older by displaying an apparently valid Texas

2-17     driver's license or an identification card issued by the Texas

2-18     Department of Public Safety, containing a physical description

2-19     consistent with his appearance for the purpose of inducing the

2-20     person to sell him an alcoholic beverage.

2-21           (c)  An offense under this section is a Class A misdemeanor

2-22     [Except as provided in Subsection (d) of this section, a violation

2-23     of this section is a misdemeanor punishable by a fine of not less

2-24     than $100 nor more than $500, by confinement in jail for not more

2-25     than one year, or by both.]

 3-1           [(d)  If a person has been previously convicted of a

 3-2     violation of this section or Section 101.63 of this code, a

 3-3     violation is a misdemeanor punishable by a fine of not less than

 3-4     $500 nor more than $1,000, by confinement in jail for not more than

 3-5     one year, or by both].

 3-6           SECTION 4.  Section 106.04, Alcoholic Beverage Code, is

 3-7     amended to read as follows:

 3-8           Sec. 106.04.  CONSUMPTION OF ALCOHOL BY A MINOR.  (a) A

 3-9     [Except as provided in Subsection (b) of this section,  a] minor

3-10     commits an offense if he consumes an alcoholic beverage.

3-11           (b)  It is an affirmative defense to prosecution under this

3-12     section that the alcoholic beverage was consumed [A minor may

3-13     consume an alcoholic beverage if he is] in the visible presence of

3-14     the minor's [an] adult parent, guardian, or spouse.

3-15           (c)  An offense under this section is punishable as provided

3-16     by Section 106.071.

3-17           (d)  A minor who commits an offense under this section and

3-18     who has been previously convicted twice or more of offenses under

3-19     this section is not eligible for deferred adjudication.  For the

3-20     purposes of this subsection an adjudication under Title 3, Family

3-21     Code, that the minor engaged in conduct described by this section

3-22     is considered a conviction of an offense under this section [Except

3-23     as provided in Subsection (d) of this section, a violation of this

3-24     section is a misdemeanor punishable by a fine of not less than $25

3-25     nor more than $200.]

 4-1           [(d)  If a person has been previously convicted of a

 4-2     violation of this section, or of Section 106.02 or 106.05 of this

 4-3     code, a violation is a misdemeanor punishable by a fine of not less

 4-4     than $500 nor more than $1,000].

 4-5           SECTION 5.  Chapter 106, Alcoholic Beverage Code, is amended

 4-6     by adding Section 106.041 to read as follows:

 4-7           Sec. 106.041.  DRIVING UNDER THE INFLUENCE OF ALCOHOL BY

 4-8     MINOR.  (a) A minor commits an offense if the minor operates a

 4-9     motor vehicle in a public place while having any detectable amount

4-10     of alcohol in the minor's system.

4-11           (b)  Except as provided by Subsection (c), an offense under

4-12     this section is a Class C misdemeanor.

4-13           (c)  If it is shown at the trial of the defendent that the

4-14     defendent is a minor who is not a child and who has been previously

4-15     convicted at least twice of an offense under this section, the

4-16     offense is punishable by:

4-17                 (1)  a fine of not less than $500 or more than $2,000;

4-18                 (2)  confinement in jail for a term not to exceed 180

4-19     days; or

4-20                 (3)  both the fine and confinement.

4-21           (d)  If a child has been previously convicted twice or more

4-22     of offenses under this section, the proceeding shall be commenced

4-23     in the county in which the child resides.

4-24           (e)  In addition to any fine and any order issued under

4-25     Section 106.115, the court shall order a minor convicted of an

 5-1     offense under this section to perform community service for:

 5-2                 (1)  not less than 20 or more than 40 hours, if the

 5-3     minor has not been previously convicted of an offense under this

 5-4     section; or

 5-5                 (2)  not less than 40 or more than 60 hours, if the

 5-6     minor has been previously convicted of an offense under this

 5-7     section.

 5-8           (f)  A minor who commits an offense under this section and

 5-9     who has been previously convicted twice or more of offenses under

5-10     this section is not eligible for deferred adjudication.

5-11           (g)  An offense under this section is not a lesser included

5-12     offense under Section 49.04, Penal Code.

5-13           (h)  For the purpose of determining whether a minor has been

5-14     previously convicted of an offense under this section, an

5-15     adjudication under Title 3, Family Code, that the minor engaged in

5-16     conduct described by this section is considered a conviction under

5-17     this section.

5-18           (i)  In this section:

5-19                 (1)  "Child" has the meaning assigned by Section 51.02,

5-20     Family Code.

5-21                 (2)  "Motor vehicle" has the meaning assigned by

5-22     Section 32.34(a), Penal Code.

5-23                 (3)  "Public place" has the meaning assigned by Section

5-24     1.07, Penal Code.

5-25           SECTION 6.  Section 106.05, Alcoholic Beverage Code, is

 6-1     amended to read as follows:

 6-2           Sec. 106.05.  POSSESSION OF ALCOHOL BY A MINOR.  (a)  A

 6-3     [Except as provided in Subsection (b) of this section, a] minor

 6-4     commits an offense if he possesses an alcoholic beverage.

 6-5           (b)  It is an affirmative defense to prosecution under this

 6-6     section that the minor possessed the [A minor may possess an]

 6-7     alcoholic beverage:

 6-8                 (1)  while in the course and scope of his employment if

 6-9     he is an employee of a licensee or permittee and the employment is

6-10     not prohibited by this code; or

6-11                 (2)  if he is in the visible presence of the minor's

6-12     [an] adult parent, guardian, or spouse, or other adult to  whom he

6-13     has been committed by a court.

6-14           (c)  An offense under this section is punishable as provided

6-15     by Section 106.071 [Except as provided in Subsection (d) of  this

6-16     section, a violation of this section is a misdemeanor punishable by

6-17     a fine of not less than $25 nor more than $200.]

6-18           [(d)  If a person has been previously convicted of a

6-19     violation of this section, or of Section 106.02 or 106.04 of this

6-20     code, a violation is a misdemeanor punishable by a fine of not less

6-21     than $500 nor more than $1,000].

6-22           SECTION 7.  Section 106.06(c), Alcoholic Beverage Code, is

6-23     amended to read as follows:

6-24           (c)  An offense under this section is a Class B misdemeanor

6-25     [A violation of this section is a misdemeanor punishable by a  fine

 7-1     of not less than $100 nor more than $500].

 7-2           SECTION 8.  Section 106.07, Alcoholic Beverage Code, is

 7-3     amended to read as follows:

 7-4           Sec. 106.07.  MISREPRESENTATION OF AGE BY A MINOR.  (a)  A

 7-5     minor commits an offense if he falsely states that he is 21 years

 7-6     of age or older or presents any document that indicates he is 21

 7-7     years of age or older to a person engaged in selling or serving

 7-8     alcoholic beverages.

 7-9           (b)  An offense under this section is punishable as provided

7-10     by Section 106.071 [Except as provided in Subsection (c) of this

7-11     section, a violation of this section is a misdemeanor punishable by

7-12     a fine of not less than $25 nor more than $200.]

7-13           [(c)  If a person has been previously convicted of a

7-14     violation of this section, a violation is a misdemeanor punishable

7-15     by a fine of not less than $100 nor more than $500].

7-16           SECTION 9.  Chapter 106, Alcoholic Beverage Code, is amended

7-17     by adding Section 106.071 to read as follows:

7-18           Sec. 106.071.  PUNISHMENT FOR ALCOHOL RELATED OFFENSE BY

7-19     MINOR.  (a) This section applies to an offense under Section

7-20     106.02, 106.025, 106.04, 106.05, or 106.07.

7-21           (b)  Except as provided by Subsection (c), an offense  to

7-22     which this section applies is a Class C misdemeanor.

7-23           (c)  If it is shown at the trial of the defendant that the

7-24     defendant is a minor who is not a child and who has been previously

7-25     convicted at least twice of an offense to which this section

 8-1     applies, the offense is punishable by:

 8-2                 (1)  a fine of not less than $250 or more than $2,000;

 8-3                 (2)  confinement in jail for a term not to exceed 180

 8-4     days; or

 8-5                 (3)  both the fine and confinement.

 8-6           (d)  In addition to any fine and any order issued under

 8-7     Section 106.115:

 8-8                 (1)  the court shall order a minor convicted of an

 8-9     offense to which this section applies to perform community service

8-10     for:

8-11                       (A)  not less than eight or more than 12 hours,

8-12     if the minor has not been previously convicted of an offense to

8-13     which this section applies, except that if the minor resides in an

8-14     area in which access to an alcohol awareness course is not readily

8-15     available, the court shall order the minor to perform community

8-16     service for not less than eight or more than 20 hours; or

8-17                       (B)  not less than 20 or more than 40 hours, if

8-18     the minor has been previously convicted once of an offense to which

8-19     this section applies; and

8-20                 (2)  the court shall order the Department of Public

8-21     Safety to suspend the minor's driver's license or permit or, if the

8-22     minor does not have a driver's license or permit, to deny the

8-23     issuance of a driver's license or permit for:

8-24                       (A)  30 days, if the minor has not been

8-25     previously convicted of an offense to which this section applies;

 9-1                       (B)  60 days, if the minor has been previously

 9-2     convicted once of an offense to which this section applies; or

 9-3                       (C)  180 days, if the minor has been previously

 9-4     convicted twice or more of an offense to which this section

 9-5     applies.

 9-6           (e)  Community service ordered under this section must be

 9-7     related to education about or prevention of misuse of alcohol.

 9-8           (f)  For the purpose of determining whether a minor has been

 9-9     previously convicted of an offense to which this section applies,

9-10     an adjudication under Title 3, Family Code, that the minor engaged

9-11     in conduct described by this section is considered a conviction

9-12     under this section.

9-13           (g)  In this section, "child" has the meaning assigned by

9-14     Section 51.02, Family Code.

9-15           SECTION 10.  Section 106.115, Alcoholic Beverage Code, is

9-16     amended to read as follows:

9-17           Sec. 106.115.  ATTENDANCE AT ALCOHOL AWARENESS COURSE;

9-18     LICENSE SUSPENSION.  (a)  Except as provided by Subsection (b), on

9-19     conviction of a minor of an offense under Section 106.02, 106.025,

9-20     106.04, 106.041, [or] 106.05, or 106.07, the court, in addition to

9-21     assessing a fine as provided by those sections, shall require a

9-22     [the] defendant who has not been previously convicted of an offense

9-23     under one of those sections to attend an alcohol awareness course

9-24     approved by the Texas Commission on Alcohol and Drug Abuse. If the

9-25     defendant has been previously convicted once or more of an offense

 10-1    under one or more of those sections, the court may require the

 10-2    defendant to attend the alcohol awareness course.  If the defendant

 10-3    is younger than 18 years of age, the court may require the parent

 10-4    or guardian of the defendant to attend the course with the

 10-5    defendant.

 10-6          (b)  [If the defendant resides in a rural or other area in

 10-7    which access to an alcohol awareness course is not readily

 10-8    available, the court shall require the defendant to perform eight

 10-9    to 12 hours of community service instead of participating in an

10-10    alcohol awareness course.]

10-11          [(c)]  When requested, an alcohol awareness course may be

10-12    taught in languages other than English.

10-13          (c) [(d)]  The court shall require the defendant to present

10-14    to the court, within 90 days of the date of final conviction,

10-15    evidence in the form prescribed by the court that the defendant, as

10-16    ordered by the court, has satisfactorily completed an alcohol

10-17    awareness course or performed the required hours of community

10-18    service.  For good cause the court may extend this period by not

10-19    more than 90 days.  If the  defendant presents the required

10-20    evidence within the prescribed period, the court may reduce the

10-21    assessed fine to an amount equal to no less than one-half of the

10-22    amount of the initial fine.

10-23          (d) [(e)]  If the defendant does not present the required

10-24    evidence within the prescribed period, the court shall order the

10-25    Department of Public Safety to suspend the defendant's driver's

 11-1    license or permit for a period not to exceed six months or, if the

 11-2    defendant does not have a license or permit, to deny the issuance

 11-3    of a license or permit to the defendant for that period.

 11-4          (e) [(f)]  The Department of Public Safety shall send notice

 11-5    of the suspension or prohibition order issued under Subsection (d)

 11-6    [(e)] by certified mail, return receipt requested, to the

 11-7    defendant.  The notice must include the date of the suspension or

 11-8    prohibition order, the reason for the suspension or prohibition,

 11-9    and the period covered by the suspension or prohibition.

11-10          SECTION 11.  Chapter 106, Alcoholic Beverage Code, is amended

11-11    by adding Section 106.116 to read as follows:

11-12          Sec. 106.116.  REPORTS OF ADJUDICATION OR CONVICTION UNDER

11-13    THIS CHAPTER.  Unless the clerk is otherwise required to include

11-14    the information in a report submitted under Section 101.09, the

11-15    clerk of a court, including a justice court, municipal court, or

11-16    juvenile court, shall furnish to the commission on request a notice

11-17    of an adjudication under Title 3, Family Code, or a conviction  of

11-18    an offense under this chapter.  The report must be in the form

11-19    prescribed by the commission.

11-20          SECTION 12.  Section 51.02(15), Family Code, is amended to

11-21    read as follows:

11-22                (15)  "Status offender" means a child who is accused,

11-23    adjudicated, or convicted for conduct that would not, under state

11-24    law, be a crime if committed by an adult, including:

11-25                      (A)  truancy under Section 51.03(b)(2);

 12-1                      (B)  running away from home under Section

 12-2    51.03(b)(3);

 12-3                      (C)  a fineable only offense under Section

 12-4    51.03(b)(1) transferred to the juvenile court under Section

 12-5    51.08(b), but only if the conduct constituting the offense would

 12-6    not have been criminal if engaged in by an adult;

 12-7                      (D)  failure to attend school under Section

 12-8    4.251, Education Code;

 12-9                      (E)  a violation of standards of student conduct

12-10    as described by Section 51.03(b)(5) [51.03(b)(6)];

12-11                      (F)  a violation of a juvenile curfew ordinance

12-12    or order;

12-13                      (G)  a violation of a provision of the Alcoholic

12-14    Beverage Code applicable to minors only; or

12-15                      (H)  a violation of any other fineable only

12-16    offense under Section 8.07(a)(4) or (5), Penal Code, but only if

12-17    the conduct constituting the offense would not have been criminal

12-18    if engaged in by an adult.

12-19          SECTION 13.  Sections 51.03(a) and (b), Family Code, are

12-20    amended to read as follows:

12-21          (a)  Delinquent conduct is:

12-22                (1)  conduct, other than a traffic offense, that

12-23    violates a penal law of this state or of the United States

12-24    punishable by imprisonment or by confinement in jail;

12-25                (2)  conduct that violates a reasonable and lawful

 13-1    order of a juvenile court entered under Section 54.04 or 54.05 of

 13-2    this code, except an order prohibiting the following conduct:

 13-3                      (A)  a violation of the penal laws of this state

 13-4    of the grade of misdemeanor that is punishable by fine only or a

 13-5    violation of the penal ordinances of any political subdivision of

 13-6    this state;

 13-7                      (B)  the unexcused voluntary absence of a child

 13-8    from school;  or

 13-9                      (C)  the voluntary absence of a child from his

13-10    home without the consent of his parent or guardian for a

13-11    substantial length of time or without intent to return;

13-12                (3)  conduct that violates a lawful order of a

13-13    municipal court or justice court under circumstances that would

13-14    constitute contempt of that court; [or]

13-15                (4)  conduct that violates Section 49.04, Penal Code,

13-16    or that violates Section 49.07 or 49.08 of that code and involves

13-17    the operation of a motor vehicle; or

13-18                (5)  conduct that violates Section 106.041, Alcoholic

13-19    Beverage Code, relating to driving under the influence of alcohol

13-20    by a minor [the laws of this state prohibiting driving while

13-21    intoxicated or under the influence of intoxicating liquor (third or

13-22    subsequent offense) or driving while under the influence of any

13-23    narcotic drug or of any other drug to the degree that renders the

13-24    child incapable of safely driving a vehicle] (third or subsequent

13-25    offense).

 14-1          (b)  Conduct indicating a need for supervision is:

 14-2                (1)  subject to Subsection (f) of this section,

 14-3    conduct, other than a traffic offense, that violates:

 14-4                      (A)  the penal laws of this state of the grade of

 14-5    misdemeanor that are punishable by fine only; or

 14-6                      (B)  the penal ordinances of any political

 14-7    subdivision of this state;

 14-8                (2)  the unexcused voluntary absence of a child on 10

 14-9    or  more days or parts of days within a six-month period or three

14-10    or more days or parts of days within a four-week period from school

14-11    without the consent of his parents;

14-12                (3)  the voluntary absence of a child from his home

14-13    without the consent of his parent or guardian for a substantial

14-14    length of time or without intent to return;

14-15                (4)  [conduct which violates the laws of this state

14-16    prohibiting driving while intoxicated or under the influence of

14-17    intoxicating liquor (first or second offense) or driving while

14-18    under the influence of any narcotic drug or of any other drug to a

14-19    degree which renders him incapable of safely driving a vehicle

14-20    (first or second offense);]

14-21                [(5)]  conduct prohibited by city ordinance or by state

14-22    law involving the inhalation of the fumes or vapors of paint and

14-23    other protective coatings or glue and other adhesives and the

14-24    volatile chemicals itemized in Section 484.002, Health and Safety

14-25    Code;

 15-1                (5) [(6)]  an act that violates a school district's

 15-2    previously communicated written standards of student conduct for

 15-3    which the child has been expelled under Section 21.3011, Education

 15-4    Code; or

 15-5                (6) [(7)]  conduct that violates a reasonable and

 15-6    lawful order of a court entered under Section 264.305.

 15-7          SECTION 14.  Section 51.06, Family Code, is amended by

 15-8    amending Subsection (a) and adding Subsection (c) to read as

 15-9    follows:

15-10          (a)  Except as provided by Subsection (c), a [A] proceeding

15-11    under this title shall be commenced in:

15-12                (1)  the county in which the child resides; or

15-13                (2)  the county in which the alleged delinquent conduct

15-14    or conduct indicating a need for supervision occurred.

15-15          (c)  A proceeding that involves delinquent conduct under

15-16    Section 51.03(a)(4) relating to a violation of Section 106.041,

15-17    Alcoholic Beverage Code, driving under the influence of alcohol by

15-18    a minor, shall be commenced in the county in which the child

15-19    resides.

15-20          SECTION 15.  Section 52.02, Family Code, is amended by

15-21    amending Subsection (a) and adding Subsection (c) to read as

15-22    follows:

15-23          (a)  Except as provided by Subsection (c), a [A] person

15-24    taking a child into custody, without unnecessary delay and without

15-25    first taking the child to any place other than a juvenile

 16-1    processing office designated under Section 52.025 of this code,

 16-2    shall do one of the following:

 16-3                (1)  release the child to a parent, guardian, custodian

 16-4    of the child, or other responsible adult upon that person's promise

 16-5    to bring the child before the juvenile court as requested by the

 16-6    court;

 16-7                (2)  bring the child before the office or official

 16-8    designated by the juvenile court if there is probable cause to

 16-9    believe that the child engaged in delinquent conduct or conduct

16-10    indicating a need for supervision;

16-11                (3)  bring the child to a detention facility designated

16-12    by the juvenile court;

16-13                (4)  bring the child to a medical facility if the child

16-14    is believed to suffer from a serious physical condition or illness

16-15    that requires prompt treatment; or

16-16                (5)  dispose of the case under Section 52.03 of this

16-17    code.

16-18          (c)  A person who takes a child into custody and who has

16-19    reasonable grounds to believe that the child has been operating a

16-20    motor vehicle in a public place while having any detectable amount

16-21    of alcohol in the child's system may, before complying with

16-22    Subsection (a):

16-23                (1)  take the child to a place to obtain a specimen of

16-24    the child's breath or blood as provided by Chapter 724,

16-25    Transportation Code; and

 17-1                (2)  perform intoxilyzer processing and videotaping of

 17-2    the child in an adult processing office of a police department.

 17-3          SECTION 16.  Section 53.03, Family Code, is amended by

 17-4    amending Subsection (a) and adding Subsection (g) to read as

 17-5    follows:

 17-6          (a)  Subject to Subsections [Subsection] (e) and (g), if the

 17-7    preliminary investigation required by Section 53.01 of this code

 17-8    results in a determination that further proceedings in the case are

 17-9    authorized, the probation officer or other designated officer  of

17-10    the court, subject to the direction of the juvenile court, may

17-11    advise the parties for a reasonable period of time not to exceed

17-12    six months concerning deferred prosecution and rehabilitation of a

17-13    child if:

17-14                (1)  deferred prosecution would be in the interest of

17-15    the public and the child;

17-16                (2)  the child and his parent, guardian, or custodian

17-17    consent with knowledge that consent is not obligatory; and

17-18                (3)  the child and his parent, guardian, or custodian

17-19    are informed that they may terminate the deferred prosecution at

17-20    any point and petition the court for a court hearing in the case.

17-21          (g)  Prosecution may not be deferred for a child alleged to

17-22    have engaged in conduct that:

17-23                (1)  is an offense under Section 49.04, Penal Code, or

17-24    an offense under Section 49.07 or 49.08 of that code involving the

17-25    operation of a motor vehicle; or

 18-1                (2)  is a third or subsequent offense under Section

 18-2    106.04 or 106.041, Alcoholic Beverage Code.

 18-3          SECTION 17.  Chapter 54, Family Code, is amended by adding

 18-4    Section 54.046 to read as follows:

 18-5          Sec. 54.046.  ALCOHOL-RELATED OFFENSE.  If the court or jury

 18-6    finds at an adjudication hearing for a child that the child engaged

 18-7    in conduct indicating a need for supervision or delinquent conduct

 18-8    that violates the alcohol related offenses in Section 106.02,

 18-9    106.025, 106.04, 106.05, or 106.07, Alcoholic Beverage Code, the

18-10    court shall, subject to a finding under Section 54.04(c), order, in

18-11    addition to any other order authorized by this title, that, in the

18-12    manner provided by Section 106.071(d), Alcoholic Beverage Code:

18-13                (1)  the child perform community service; and

18-14                (2)  the child's driver's license or permit be

18-15    suspended or that the child be denied issuance of a driver's

18-16    license or permit.

18-17          SECTION 18.  Chapter 59, Family Code, is amended by adding

18-18    Section 59.0031 to read as follows:

18-19          Sec. 59.0031.  SANCTION LEVEL ASSIGNMENT GUIDELINES FOR

18-20    DRIVING WHILE INTOXICATED.  Subject to Section 59.003(e), the

18-21    probation department may or the juvenile court may, in a

18-22    disposition hearing under Section 54.04, assign a child, for

18-23    conduct that is an offense under Section 49.04, Penal Code, or an

18-24    offense under Section 49.07 or 49.08 of that code involving the

18-25    operation of a motor vehicle, the following sanction levels:

 19-1                (1)  for the first offense, the sanction level is two;

 19-2                (2)  for the second offense, the sanction level is

 19-3    three; and

 19-4                (3)  for the third offense, the sanction level is four.

 19-5          SECTION 19.  Section 521.145, Transportation Code, is amended

 19-6    to read as follows:

 19-7          Sec. 521.145.  APPLICATION BY MINOR.  (a)  The application of

 19-8    an applicant under 18 years of age must be signed by:

 19-9                (1)  the parent or guardian who has custody of the

19-10    applicant; or

19-11                (2)  if the applicant has no parent or guardian:

19-12                      (A)  the applicant's employer; or

19-13                      (B)  the county judge of the county in which the

19-14    applicant resides.

19-15          (b)  The department shall provide the applicant and the

19-16    cosignor with information concerning state laws relating to driving

19-17    while intoxicated, driving by a minor with alcohol in the minor's

19-18    system, and implied consent.  The applicant and cosignor must

19-19    acknowledge receipt of this information.

19-20          SECTION 20.  Section 524.001, Transportation Code, is amended

19-21    to read as follows:

19-22          Sec. 524.001.  DEFINITIONS.  In this chapter:

19-23                (1)  "Adult" means an individual 21 years of age or

19-24    older.

19-25                (2)  "Alcohol concentration" has the meaning assigned

 20-1    by Section 49.01, Penal Code.

 20-2                (3) [(2)]  "Alcohol-related or drug-related enforcement

 20-3    contact" means a driver's license suspension, disqualification, or

 20-4    prohibition order under the laws of this state or another state

 20-5    resulting from:

 20-6                      (A)  a conviction of an offense prohibiting the

 20-7    operation of a motor vehicle while:

 20-8                            (i)  intoxicated;

 20-9                            (ii)  under the influence of alcohol; or

20-10                            (iii)  under the influence of a controlled

20-11    substance;

20-12                      (B)  a refusal to submit to the taking of a

20-13    breath or blood specimen following an arrest for an offense

20-14    prohibiting the operation of a motor vehicle while:

20-15                            (i)  intoxicated;

20-16                            (ii)  under the influence of alcohol; or

20-17                            (iii)  under the influence of a controlled

20-18    substance; or

20-19                      (C)  an analysis of a breath or blood specimen

20-20    showing an alcohol concentration of a level specified by Section

20-21    49.01, Penal Code, following an arrest for an offense prohibiting

20-22    the operation of a motor vehicle while intoxicated.

20-23                (4)  "Arrest" includes taking into custody of a child,

20-24    as defined by Section 51.02, Family Code.

20-25                (5)  "Conviction" includes an adjudication under Title

 21-1    3, Family Code.

 21-2                (6)  "Criminal charge" includes a charge that may

 21-3    result in a proceeding under Title 3, Family Code.

 21-4                (7)  "Criminal prosecution" includes a proceeding under

 21-5    Title 3, Family Code.

 21-6                (8) [(3)]  "Department" means the Department of Public

 21-7    Safety.

 21-8                (9) [(4)]  "Director" means the public safety director

 21-9    of the department.

21-10                (10) [(5)]  "Driver's license" has the meaning assigned

21-11    by Section 521.001.

21-12                (11)  "Minor" means an individual under 21 years of

21-13    age.

21-14                (12) [(6)]  "Public place" has the meaning assigned by

21-15    Section 1.07(a), Penal Code.

21-16          SECTION 21.  Section 524.011, Transportation Code, is amended

21-17    to read as follows:

21-18          Sec. 524.011.  ARRESTING OFFICER'S DUTIES FOR DRIVER'S

21-19    LICENSE SUSPENSION.  (a)  An officer arresting a person shall

21-20    comply with Subsection (b) if:

21-21                (1)  the [If a] person is arrested for an offense under

21-22    Section 49.04, Penal Code, or an offense under Section 49.07 or

21-23    49.08 of that code involving the operation of a motor vehicle,

21-24    submits to the taking of a specimen of breath or blood and an

21-25    analysis of the specimen shows the person had an alcohol

 22-1    concentration of a level specified by Section 49.01(2)(B), Penal

 22-2    Code; or

 22-3                (2)  the person is a minor arrested for an offense

 22-4    under Section 106.041, Alcoholic Beverage Code, or Section 49.04,

 22-5    Penal Code, or an offense under Section 49.07 or 49.08, Penal Code,

 22-6    involving the operation of a motor vehicle and:

 22-7                      (A)  the minor is not requested to submit to the

 22-8    taking of a specimen; or

 22-9                      (B)  the minor submits to the taking of a

22-10    specimen and an analysis of the specimen shows that the minor had

22-11    an alcohol concentration of greater than .00 but less than the

22-12    level specified by Section 49.01(2)(B), Penal Code.

22-13          (b)  The [, the] arresting officer shall:

22-14                (1)  serve or, if a specimen is taken and the analysis

22-15    of the specimen is not returned to the arresting officer before the

22-16    person is admitted to bail, released from custody, delivered as

22-17    provided by Title 3, Family Code, or committed to jail, attempt to

22-18    serve notice of driver's license suspension by personally

22-19    delivering the notice to the arrested person; and

22-20                (2)  send to the department not later than the fifth

22-21    business day after the date of the arrest:

22-22                      (A)  a copy of the driver's license suspension

22-23    notice; and

22-24                      (B)  a sworn report of information relevant to

22-25    the arrest.

 23-1          (c) [(b)]  The report required under Subsection (b)(2)(B)

 23-2    [(a)(2)(B)] must:

 23-3                (1)  identify the arrested person;

 23-4                (2)  state the arresting officer's grounds for

 23-5    believing the person committed the offense;

 23-6                (3)  give the analysis of the specimen if any; and

 23-7                (4)  include a copy of the criminal complaint filed in

 23-8    the case, if any.

 23-9          (d) [(c)]  An arresting officer shall make the report on a

23-10    form approved by the department and in the manner specified by  the

23-11    department.

23-12          (e) [(d)]  The department shall develop a form for the notice

23-13    of driver's license suspension that shall be used by all  state and

23-14    local law enforcement agencies.

23-15          SECTION 22.  Sections 524.012(b) and (c), Transportation

23-16    Code, are amended to read as follows:

23-17          (b)  The department shall suspend the person's driver's

23-18    license if the department determines that:

23-19                (1)  the person had an alcohol concentration of a level

23-20    specified by Section 49.01(2)(B), Penal Code, while operating a

23-21    motor vehicle in a public place; or

23-22                (2)  the person is a minor and had any detectable

23-23    amount of alcohol in the minor's system while operating a motor

23-24    vehicle in a public place.

23-25          (c)  The department may not suspend a person's driver's

 24-1    license if:

 24-2                (1)  the person is an adult and the analysis of the

 24-3    person's breath or blood specimen determined that the person had an

 24-4    alcohol concentration of a level below that specified by Section

 24-5    49.01(2)(B), Penal Code, at the time the specimen was taken; or

 24-6                (2)  the person is a minor and the department does not

 24-7    determine that the minor had any detectable amount of alcohol in

 24-8    the minor's system when the minor was arrested.

 24-9          SECTION 23.  Section 524.022, Transportation Code, is amended

24-10    to read as follows:

24-11          Sec. 524.022.  PERIOD OF SUSPENSION.  (a)  A period of

24-12    suspension under this chapter for an adult is:

24-13                (1)  60 days if the person's driving record shows no

24-14    alcohol-related or drug-related enforcement contact during the five

24-15    years preceding the date of the person's arrest;

24-16                (2)  120 days if the person's driving record shows one

24-17    or more alcohol-related or drug-related enforcement contacts, as

24-18    defined by Section 524.001(2)(B) or (C), during the five years

24-19    preceding the date of the person's arrest; or

24-20                (3)  180 days if the person's driving record shows one

24-21    or more alcohol-related or drug-related enforcement contacts, as

24-22    defined by Section 524.001(2)(A), during the five years preceding

24-23    the date of the person's arrest.

24-24          (b)  A period of suspension under this chapter for a minor

24-25    is:

 25-1                (1)  120 days if the minor has not been previously

 25-2    convicted of an offense under Section 106.041, Alcoholic Beverage

 25-3    Code, or Section 49.04, Penal Code, or an offense under Section

 25-4    49.07 or 49.08, Penal Code, involving the operation of a motor

 25-5    vehicle;

 25-6                (2)  150 days if the minor has been previously

 25-7    convicted once of an offense listed by Subdivision (1); or

 25-8                (3)  180 days if the minor has been previously

 25-9    convicted twice or more of an offense listed by Subdivision (1).

25-10          (c)  A minor whose driver's license is suspended under this

25-11    chapter is not eligible for an occupational license under

25-12    Subchapter L, Chapter 521, for:

25-13                (1)  the first 30 days of a suspension under Subsection

25-14    (b)(1);

25-15                (2)  the first 90 days of a suspension under Subsection

25-16    (b)(2); or

25-17                (3)  the entire period of a suspension under Subsection

25-18    (b)(3).

25-19          SECTION 24.  Section 524.023, Transportation Code, is amended

25-20    to read as follows:

25-21          Sec. 524.023.  APPLICATION OF SUSPENSION UNDER OTHER LAWS.

25-22    (a)  If a person is convicted of an offense under Section 106.041,

25-23    Alcoholic Beverage Code, or Section 49.04, 49.07, or 49.08, Penal

25-24    Code, and if any conduct on which that conviction is based is a

25-25    ground for a driver's license suspension under this chapter and

 26-1    Section 106.041, Alcoholic Beverage Code, Subchapter O, Chapter

 26-2    521, or Subchapter H, Chapter 522, each of the suspensions shall be

 26-3    imposed.

 26-4          (b)  The court imposing a driver's license suspension under

 26-5    Section 106.041, Alcoholic Beverage Code, or Chapter 521 or 522 as

 26-6    required by Subsection (a) shall credit a period of suspension

 26-7    imposed under this chapter toward the period of suspension required

 26-8    under Section 106.041, Alcoholic Beverage Code, or Subchapter O,

 26-9    Chapter 521, or Subchapter H, Chapter 522, unless the person was

26-10    convicted of an offense under Article 6701l-1, Revised Statutes, as

26-11    that law existed before September 1, 1994, Section 19.05(a)(2),

26-12    Penal Code, as that law existed before September 1, 1994, [or]

26-13    Section 49.04, 49.07, or 49.08, Penal Code, or Section 106.041,

26-14    Alcoholic Beverage Code, before the date of the conviction on which

26-15    the suspension is based, in which event credit may not be given.

26-16          SECTION 25.  Sections 524.035(a) and (d), Transportation

26-17    Code, are amended to read as follows:

26-18          (a)  The issues that must be proved at a hearing by a

26-19    preponderance of the evidence are:

26-20                (1)  whether:

26-21                      (A) [(1)]  the person had an alcohol

26-22    concentration of a level specified by Section 49.01(2)(B), Penal

26-23    Code, while operating a motor vehicle in a public place; or

26-24                      (B)  the person is a minor and had any detectable

26-25    amount of alcohol in the minor's system while operating a motor

 27-1    vehicle in a public place; and

 27-2                (2)  whether reasonable suspicion to stop or probable

 27-3    cause to arrest the person existed.

 27-4          (d)  An administrative law judge may not find in the

 27-5    affirmative on the issue in Subsection (a)(1) if:

 27-6                (1)  the person is an adult and the analysis of the

 27-7    person's breath or blood determined that the person had an alcohol

 27-8    concentration of a level below that specified by Section 49.01,

 27-9    Penal Code, at the time the specimen was taken; or

27-10                (2)  the person is a minor and the administrative law

27-11    judge does not find that the minor had any detectable amount of

27-12    alcohol in the minor's system when the minor was arrested.

27-13          SECTION 26.  Section 524.042(a), Transportation Code, is

27-14    amended to read as follows:

27-15          (a)  A suspension of a driver's license under this chapter is

27-16    stayed on the filing of an appeal petition only if:

27-17                (1)  the person's driver's license has not been

27-18    suspended as a result of an alcohol-related or drug-related

27-19    enforcement contact during the five years preceding the date of the

27-20    person's arrest; and

27-21                (2)  the person has not been convicted during the 10

27-22    years preceding the date of the person's arrest of an offense

27-23    under:

27-24                      (A)  Article 6701l-1, Revised Statutes, as that

27-25    law existed before September 1, 1994;

 28-1                      (B)  Section 19.05(a)(2), Penal Code, as that law

 28-2    existed before September 1, 1994;

 28-3                      (C)  Section 49.04, Penal Code; [or]

 28-4                      (D)  Section 49.07 or 49.08, Penal Code, if the

 28-5    offense involved the operation of a motor vehicle; or

 28-6                      (E)  Section 106.041, Alcoholic Beverage Code.

 28-7          SECTION 27.  Section 524.043(d), Transportation Code, is

 28-8    amended to read as follows:

 28-9          (d)  An administrative law judge may change a finding or

28-10    decision as to whether the person had an alcohol concentration of a

28-11    level specified in Section 49.01, Penal Code, or whether a minor

28-12    had any detectable amount of alcohol in the minor's system because

28-13    of the  additional evidence and shall file the additional evidence

28-14    and any changes, new findings, or decisions with the reviewing

28-15    court.

28-16          SECTION 28.  Section 724.001, Transportation Code, is amended

28-17    to read as follows:

28-18          Sec. 724.001.  DEFINITIONS. In this chapter:

28-19                (1)  "Alcohol concentration" has the meaning assigned

28-20    by Section 49.01, Penal Code.

28-21                (2)  "Arrest" includes taking into custody of a child,

28-22    as defined by Section 51.02, Family Code.

28-23                (3) [(2)]  "Controlled substance" has the meaning

28-24    assigned by Section 481.002, Health and Safety Code.

28-25                (4)  "Criminal charge" includes a charge that may

 29-1    result in a proceeding under Title 3, Family Code.

 29-2                (5)  "Criminal proceeding" includes a proceeding under

 29-3    Title 3, Family Code.

 29-4                (6) [(3)]  "Dangerous drug" has the meaning assigned by

 29-5    Section 483.001, Health and Safety Code.

 29-6                (7) [(4)]  "Department" means the Department of Public

 29-7    Safety.

 29-8                (8) [(5)]  "Drug" has the meaning assigned by Section

 29-9    481.002, Health and Safety Code.

29-10                (9) [(6)]  "Intoxicated" has the meaning assigned by

29-11    Section 49.01, Penal Code.

29-12                (10) [(7)]  "License" has the meaning assigned by

29-13    Section 521.001.

29-14                (11) [(8)]  "Operate" means to drive or be in actual

29-15    control of a motor vehicle or watercraft.

29-16                (12) [(9)]  "Public place" has the meaning assigned by

29-17    Section 1.07, Penal Code.

29-18          SECTION 29.  Section             724.011(a), Transportation

29-19    Code, is amended to read as follows:

29-20          (a)  If a person is arrested for an offense arising out of

29-21    acts  alleged to have been committed while the person was operating

29-22    a motor vehicle in a public place, or a watercraft, while

29-23    intoxicated, or an offense under Section 106.041, Alcoholic

29-24    Beverage Code, the person is deemed to have consented, subject to

29-25    this chapter, to submit to the taking of one or more specimens of

 30-1    the person's breath or blood for analysis to determine the alcohol

 30-2    concentration or the presence in the person's body of a controlled

 30-3    substance, drug, dangerous drug, or other substance.

 30-4          SECTION 30.  Section 724.012(a), Transportation Code, is

 30-5    amended to read as follows:

 30-6          (a)  One or more specimens of a person's breath or blood may

 30-7    be taken if the person is arrested and at the request of a peace

 30-8    officer having reasonable grounds to believe the person:

 30-9                (1)  while intoxicated was operating a motor vehicle in

30-10    a public place, or a watercraft; or

30-11                (2)  was in violation of Section 106.041, Alcoholic

30-12    Beverage Code.

30-13          SECTION 31.  Section 724.015, Transportation Code, is amended

30-14    to read as follows:

30-15          Sec. 724.015.  INFORMATION PROVIDED BY OFFICER BEFORE

30-16    REQUESTING SPECIMEN. (a) Before requesting a person to submit to

30-17    the taking of a specimen, the officer shall inform the person

30-18    orally and in writing that:

30-19                (1)  if the person refuses to submit to the taking of

30-20    the specimen, that refusal may be admissible in a subsequent

30-21    prosecution;

30-22                (2)  if the person refuses to submit to the taking of

30-23    the specimen, the person's license to operate a motor vehicle will

30-24    be automatically suspended, whether or not the person is

30-25    subsequently prosecuted as a result of the arrest, for:

 31-1                      (A)  not less than 90 days if the person is 21

 31-2    years of age or older; or

 31-3                      (B)  one year if the person is younger than 21

 31-4    years of age;

 31-5                (3)  if the person is 21 years of age or older and

 31-6    submits to the taking of a specimen designated by the officer and

 31-7    an analysis of the specimen shows the person had an alcohol

 31-8    concentration of a level specified by Chapter 49, Penal Code, the

 31-9    person's license to operate a motor vehicle will be automatically

31-10    suspended for not less than 60 days, whether or not the person is

31-11    subsequently prosecuted as a result of the arrest;

31-12                (4)  if the person is younger than 21 years of age and

31-13    has any detectable amount of alcohol in the person's system, the

31-14    person's license to operate a motor vehicle will be automatically

31-15    suspended for not less than 120 days even if the person submits to

31-16    the taking of the specimen, but that if the person submits to the

31-17    taking of the specimen and an analysis of the specimen shows the

31-18    person had an alcohol concentration less than the level specified

31-19    by Chapter 49, Penal Code, the person may be subject to criminal

31-20    penalties less severe than those provided under that chapter;

31-21                (5)  if the officer determines that the person is a

31-22    resident without a license to operate a motor vehicle in this

31-23    state, the department will deny to the person the issuance of a

31-24    license, whether or not the person is subsequently prosecuted as a

31-25    result of the arrest, under the same conditions and for the same

 32-1    periods that would have applied to a revocation of the person's

 32-2    driver's license if the person had held a driver's license issued

 32-3    by this state [if:]

 32-4                      [(A)  the person refuses to submit to the taking

 32-5    of a specimen, in which case the denial is for:]

 32-6                            [(i)  not less than 90 days if the person

 32-7    is 21 years of age or older; or]

 32-8                            [(ii)  one year if the person is younger

 32-9    than 21 years of age; or]

32-10                      [(B)  a specimen designated by the officer is

32-11    taken and an analysis of the specimen shows the person had an

32-12    alcohol concentration of a level specified by Section 49.01(2)(B),

32-13    Penal Code, in which case the denial is for not less than 60 days];

32-14    and

32-15                (6) [(5)]  the person has a right to a hearing on the

32-16    suspension or denial if, not later than the 15th day after the

32-17    date on which the person receives the notice of suspension or

32-18    denial or on which the person is considered to have received the

32-19    notice by mail as provided by law, the department receives, at its

32-20    headquarters in Austin, a written demand, including a facsimile

32-21    transmission, or a request in another form prescribed by the

32-22    department for the hearing.

32-23          (b)  On request by the arrested person after the officer has

32-24    complied with Subsection (a), the officer, in a manner that is not

32-25    coercive  or misleading, shall explain the information required by

 33-1    this section or provide additional information about the

 33-2    consequences of the person's submitting or refusing to submit to

 33-3    the taking of the specimen.  The provision by the officer of true

 33-4    information is presumed to be not coercive.

 33-5          (c)  Evidence of a person's refusal to submit to the taking

 33-6    of a specimen or of the analysis of the specimen is admissible in

 33-7    court if the arresting officer substantially complies with this

 33-8    section.  The evidence is not made inadmissible by a harmless error

 33-9    of the officer in providing information about the consequences of

33-10    the person's submitting or refusing to submit to the taking of the

33-11    specimen.

33-12          SECTION 32.  Sections 724.035(b) and (c), Transportation

33-13    Code, are amended to read as follows:

33-14          (b)  The period of suspension or denial is 180 days if the

33-15    person is 21 years of age or older and the person's driving record

33-16    shows one or more alcohol-related or drug-related enforcement

33-17    contacts, as defined by Section 524.001(3)(B) or (C) [524.001],

33-18    during the five years preceding the date of the person's arrest.

33-19          (c)  The period of suspension or denial is one year if the

33-20    person is 21 years of age or older and the person's driving record

33-21    shows one or more alcohol-related or drug-related enforcement

33-22    contacts, as defined by Section 524.001(3)(A) [524.001], during the

33-23    five years preceding the date of the person's arrest.

33-24          SECTION 33.  Section 724.048(c), Transportation Code, is

33-25    amended to read as follows:

 34-1          (c)  If a criminal charge arising from the same arrest as a

 34-2    suspension under this chapter [under Chapter 49, Penal Code,]

 34-3    results in an acquittal, the [a] suspension under this chapter may

 34-4    not be imposed.  If a suspension under this chapter has already

 34-5    been imposed, the department shall rescind the suspension and

 34-6    remove references to the suspension from the computerized driving

 34-7    record of the individual.

 34-8          SECTION 34.  Section 724.064, Transportation Code, is amended

 34-9    to read as follows:

34-10          Sec. 724.064.  ADMISSIBILITY IN CRIMINAL PROCEEDING OF

34-11    SPECIMEN ANALYSIS.  On the trial of a criminal proceeding arising

34-12    out of an offense under Chapter 49, Penal Code, involving the

34-13    operation of a motor vehicle or a watercraft, or an offense under

34-14    Section 106.041, Alcoholic Beverage Code, evidence of the alcohol

34-15    concentration or presence of a controlled substance, drug,

34-16    dangerous drug, or other substance as shown by analysis of a

34-17    specimen of the person's blood, breath, or urine or any other

34-18    bodily substance taken at the request or order of a peace officer

34-19    is admissible.

34-20          SECTION 35.  Section 521.298, Transportation Code, is

34-21    repealed.

34-22          SECTION 36.  (a)  The changes in law made by this Act apply

34-23    only to an offense committed on or after the effective date of this

34-24    Act.  For the purposes of this section, an offense is committed

34-25    before the effective date of this Act if any element of the offense

 35-1    occurs before that date.

 35-2          (b)  An offense committed before the effective date of this

 35-3    Act is covered by the law in effect when the offense was committed,

 35-4    and the former law is continued in effect for that purpose.

 35-5          SECTION 37.  This Act takes effect September 1, 1997.

 35-6          SECTION 38.  The importance of this legislation and the

 35-7    crowded condition of the calendars in both houses create an

 35-8    emergency and an imperative public necessity that the

 35-9    constitutional rule requiring bills to be read on three several

35-10    days in each house be suspended, and this rule is hereby suspended.