HBA-DMD C.S.H.B. 487 76(R) BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 487 By: Hill Criminal Jurisprudence 4/29/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Under current federal law, states are required to enact and enforce laws that meet the requirements for the Repeat Offender Program and the Open Container Program. Under each program, if the state provisions are not in place and enforced by October 1, 2001, Texas could lose its ability to spend construction dollars on congestion relief and other highway construction projects because one and one-half percent of the state's NHS, STP, and IM funds, or approximately $20 million in federal highway dollars, would be transferred to the highway safety or hazard elimination programs. For each year that a state is noncompliant, the amount that will be transferred will be increased to 3 percent of the state's NHS, STP, and IM funds. C.S.H.B. 487 brings Texas into compliance with federal law by establishing that a repeat offender of some alcohol related offenses is required to attend a drug or alcohol rehabilitation program. This bill also establishes that an occupant of a motor vehicle located on a public highway, rest area, comfort station, picnic area, roadside park, or scenic overlook who is consuming alcohol or possesses an open container of alcohol commits a Class C misdemeanor and that the driver need not be observed by a peace officer in the physical act of consumption to commit the offense. This bill also creates Subchapter I, Chapter 502, Transportation Code, relating to the suspension of registration for repeat DWI offenders. Additionally, this bill provides punishments and an affirmative defense for an offense. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 49.03, Penal Code, as follows: Sec. 49.03. CONSUMPTION OR POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE. (a) Deletes the condition that a peace officer must observe a person consuming an alcoholic beverage while operating a motor vehicle in a public place in order for the actor to commit an offense. (b) Establishes that an occupant of a motor vehicle located on a public highway, rest area, comfort station, picnic area, roadside park, or scenic overlook commits a Class C misdemeanor if that person consumes an alcohol beverage, or possesses in the passenger area a bottle, can, or other receptacle that contains an alcoholic beverage and has been opened, has a broken seal, or has the contents partially removed. (c) Establishes that it is an affirmative defense to prosecution under Subsection (b), that the person consuming an alcoholic beverage or the receptacle containing the alcoholic beverage is in the possession of a passenger in the living quarters of a house coach or house trailer; a passenger in a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation. (d) Created from existing text. SECTION 2. Amends Chapter 502, Transportation Code, by adding Subchapter I, as follows: SUBCHAPTER I. SUSPENSION OF REGISTRATION OF REPEAT DWI OFFENDERS Sec. 502.451. SUSPENSION OF REGISTRATION. Defines "offense relating to the operating of a motor vehicle" in this section. Requires the Department of Public Safety (DPS) to automatically suspend all vehicle registration of certain persons. Specifies the time period under which a suspension of a vehicle registration under this section begins and ends. Sec. 502.452. PROHIBITION AGAINST RENEWAL OR OTHER REGISTRATION. Prohibits a person whose vehicle registration is suspended under this section from renewing the suspended vehicle registration or registering another vehicle in the person's name, before the expiration of the period of registration suspension. Sec. 502.453. OPERATION OF MOTOR VEHICLE IN VIOLATION OF SUSPENSION; OFFENSE. (a) Sets forth that a person commits an offense if the person, during a period that a suspension of the person's vehicle registration is in effect under this subchapter, operates the vehicle on a highway or knowingly permits the vehicle to be operated on a highway. (b) Provides that it is an affirmative defense to prosecution under this section that the person had not received notice of a suspension order concerning the person's vehicle registration. Provides that for the purposes of this subsection, notice is presumed to be received if the notice was mailed in accordance with this chapter to the last known address of the person as shown by the Texas Department of Transportation (TxDOT) or DPS records. (c) Provides that an offense under this section is a misdemeanor punishable by a fine of not less than $100 or more than $500 and confinement in county jail for a term of not less than 72 hours or more than six months. Sec. 502.454. NOTICE OF SUSPENSION OF VEHICLE REGISTRATION. (a) Requires DPS to give written notice of a vehicle registration suspension under this subchapter. (b) Provides that the notice must be by personal delivery to the person or by deposit in the United States mail addressed to the person at the last address supplied to TxDOT or DPS by the person. (c) Provides that notice by mail is presumed to be received 10 days after it is mailed. Authorizes proof of notice to be made by the certificate of a DPS employee that the notice was prepared in the regular course of business and placed in the United States mail as part of the regular organized activity of DPS or the employee delivered the notice in person. (d) Provides that a certificate under Subsection (c) must specify the name of the person to whom the notice was given and the time, place, and manner of the delivery of the notice. Sec. 502.455. RETURN OF VEHICLE REGISTRATIONS AND LICENSE PLATES TO DEPARTMENT OF PUBLIC SAFETY. Requires a person notified of a vehicle registration suspension under Section 502.454 to send to DPS the person's vehicle registration receipts and the license plates for the person's vehicles. Provides that the registration receipts and license plates must be sent no later than 10 days after the person receives written notice from DPS. Sec. 502.456. FAILURE TO RETURN VEHICLE REGISTRATIONS AND LICENSE PLATES; OFFENSE. (a) Provides that a person commits an offense if the person fails or refuses to timely send to DPS the person's vehicle registration receipts and license plates as required by Section 502.455. (b) Provides that an offense under this section is a misdemeanor punishable by a fine of not less than $100 or more than $500 and confinement in county jail for a term of not less than 72 hours or more than six months. (c) Requires DPS to direct an employee of that department to obtain and sent to DPS the vehicle registration receipts and license plates of a person who fails to return the person's registration receipts and license plates in accordance with Section 502.455. (d) Authorizes the director of DPS (director) or the director' s designee to file a complaint against a person for an offense under Subsection (a). Sec. 502.457. TRANSFER OF VEHICLE REGISTRATION PROHIBITED. (a) Prohibits an owner whose vehicle registration has been suspended under this subchapter from transferring the registration unless the transfer is authorized by Subsection (b) or registering in another name the motor vehicle to which the registration applies. (b) Authorizes DPS to authorize the transfer of a vehicle registration if the director determines that the transfer is proposed in good faith and not to defeat the purposes of this subchapter. (c) Provides that this section does not affect the rights of a conditional vendor or lessor of, or person with a security interest in, a motor vehicle owned by a person who is subject to this section if the vendor, lessor, or secured party is not the registered owner of the vehicle. Sec. 502.458. REINSTATEMENT FEE. Prohibits a vehicle registration that has been suspended under this subchapter from being reinstated and a new registration receipt or license plates are prohibited from being issued to the person until the person pays a fee of $50 to DPS. Provides that the fee imposed by this section is in addition to other fees imposed by law. Provides that a person is required to pay only one fee under this section, without regard to the number of vehicle registrations and license plates to be reinstated for or issued to the person in connection with the payment. SECTION 3. Amends Section 521.251, Transportation Code, by redesignating existing Subsection (d) as Subsection (e) and adding a new Subsection (d), as follows: (d) Provides that notwithstanding any other provision in this section, if the person's driver's license has been suspended as a result of a second or subsequent conviction under Section 49.04 (Driving While Intoxicated), 49.07 (Intoxication Assault), or 49.08 (Intoxication Manslaughter), Penal Code, an order granting the person an occupational license is prohibited from taking effect before the first anniversary of the effective date of the suspension. SECTION 4. Amends Section 521.344, Transportation Code, as follows: Sec. 521.344. New Title: SUSPENSION FOR OFFENSES INVOLVING INTOXICATION. (a) Deletes the reference to an offense committed as a result of the introduction of alcohol into the body. Establishes that a license suspension for a person punished under Sections 49.04, Penal Code (Driving While Intoxicated) or 49.07, Penal Code (Intoxication Assault), continues for a period set by a court for not less than one year, rather than 180 days, and not more than two years if the person was punished under Section 49.09, Penal Code (Enhanced Offenses and Penalties). Deletes "related to use of alcohol" from the title. (b) Makes conforming and nonsubstantive changes. (d) Prohibits DPS from revoking the license of a person required to successfully complete an educational program designed to rehabilitate persons who have operated motor vehicles while intoxicated, unless the person was punished under Section 49.09, Penal Code (Enhanced Offenses and Penalties). SECTION 5. Amends Section 9(h), Article 42.12, Code of Criminal Procedure, to require the judge, in any case involving a second or subsequent offense of Driving While Intoxicated, Intoxication Assault, or Intoxication Manslaughter under Sections 49.04, 49.07, and 49.08, Penal Code respectively, and involving the operation of a motor vehicle, to direct an approved person to conduct an evaluation to determine the appropriate action for a drug or alcohol rehabilitation program for a defendant. SECTION 6. Amends Sections 13(g) and (k), Article 42.12, Code of Criminal Procedure, to establish that Subsection (g) (which allows a jury to recommend that a driver's license of a defendant not be suspended) does not apply to a person punished under Section 49.09, Penal Code (Enhanced Offenses and Penalties). Makes a conforming change. SECTION 7. Amends Section 16, Article 42.12, Code of Criminal Procedure, by amending Subsection (b) and adding Subsection (b-1), to create an exception to the amounts of specified community service hours that can be ordered by the judge. Prohibits the amount of community service work ordered by the judge from being less than 30 eight-hour days for an offense of Driving While Intoxicated under Section 49.04, Penal Code, that is punished under Section 49.09(a), and prohibits the work from being less than 60 eight-hour days for the offense of Driving While Intoxicated (Section 49.04, Penal Code), that is punished under Section 49.09(b). SECTION 8. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 9. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE This substitute further amends SECTION 1 (Section 49.03, Penal Code), by removing the provision establishing that it is an affirmative defense to prosecution under Subsection (b), that the person consuming an alcoholic beverage or the receptacle containing the alcoholic beverage is in the possession of a minister, priest, rabbi, accredited Christian Science practitioner, or other similar functionary of a religious organization who is transporting the alcoholic beverage to or from a religious function or ceremony. This substitute differs from the original bill by redesignating SECTIONS 2-7 of the original bill to SECTIONS 4-9 of the substitute, respectively. This substitute adds new SECTION 2 (proposed Subchapter I, Chapter 502, Transportation Code), relating to the suspension of registration of repeat DWI offenders. For further analysis refer to the Section-by-Section analysis in this document. This substitute adds new SECTION 3 (Section 521.251, Transportation Code), to provide that notwithstanding any other provision in this section, if the person's driver's license has been suspended as a result of a second or subsequent conviction under Section 49.04, 49.07, or 49.08, Penal Code, an order granting the person an occupational license is prohibited from taking effect before the first anniversary of the effective date of the suspension. This substitute modifies SECTION 8, as redesignated from SECTION 6 of the original, to conform to the additions of the new SECTIONS by making application of the new sections prospective.