HBA-NIK C.S.H.B. 3641 76(R)BILL ANALYSIS
Office of House Bill AnalysisC.S.H.B. 3641
By: Turner, Bob
Public Safety
4/23/1999
Committee Report (Substituted)
BACKGROUND AND PURPOSE
Various offenses related to the operation of a motor vehicle are handled
through administrative hearings. Patterning such hearings after the
administrative license revocation (ALR) program may make them more
efficient. C.S.H.B. 3641 authorizes the public safety director to notify a
person of the revocation or suspension of the person's driver's license,
permit, or operating privilege. This bill requires a $50 processing fee
for a hearing on that matter, provides the time frame in which the hearing
is to take place, and requires the hearing to be heard by a judge of a
municipal court or a justice of the peace of the county in which the
license holder resides.
RULEMAKING AUTHORITY
It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Department of Public Safety in
SECTION 1 (Section 521.291) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Subchapter N, Chapter 521, Transportation Code, as
follows:
SUBCHAPTER N. GENERAL PROVISIONS RELATING TO LICENSE
DENIAL, SUSPENSION, OR REVOCATION
Sec. 521.291. New title: RULES. Requires the Department of Public Safety
(DPS) to adopt rules to administer the subchapter.
Sec. 521.292. New title: DEPARTMENT'S DETERMINATION FOR LICENSE SUSPENSION.
Requires DPS to suspend a person's license if DPS determines that the
person has committed one of the enumerated offenses. Provides that a person
is a "habitual violator" if the person has four or more convictions that
arise out of different transactions in 12 consecutive months, or seven or
more convictions that arise out of different transactions in 24 months, if
the convictions are for moving violations of the traffic laws of any state,
Canadian province, or political subdivision, other than a violation under
certain specified sections.
Sec. 521.293. New title: PERIOD OF SUSPENSION UNDER SECTION 521.292.
Provides that if a person does not request a hearing, the period of license
suspension under Section 521.292 is 90 days. Provides that if DPS
determines that the person operated a motor vehicle while the person's
license was suspended, canceled, disqualified, or revoked, the period of
license suspension is extended for an additional period of the lesser of
the term of the original suspension or one year.
Sec. 521.294. New title: DEPARTMENT'S DETERMINATION FOR LICENSE REVOCATION.
Requires DPS to revoke a person's license if DPS determines that the person
is incapable of safely operating a motor vehicle or has committed one of
the specified offenses.
Sec. 521.295. New title: NOTICE OF DEPARTMENT'S DETERMINATION. Requires DPS
to send a notice of suspension or revocation by first class mail to a
person's address in the records of DPS, if DPS suspends the person's
license under Section 521.292 or revokes a person's license under Section
521.294.
Sec. 521.296. New title: NOTICE OF SUSPENSION OR REVOCATION. Provides that
a notice of suspension under Section 521.292 or revocation under Section
521.294 must state the reason and statutory grounds for the suspension or
revocation, the effective date of the suspension or revocation, the right
of the person to a hearing, how to request a hearing, and the period in
which the person must request a hearing.
Sec. 521.297. New title: SUSPENSION OR REVOCATION EFFECTIVE DATE. Provides
that a license suspension under Section 521.292 or revocation under Section
521.294 takes effect on the 40th day after the date the person is
considered to have received notice of the suspension or revocation under
Section 521.295.
Sec. 521.298. New title: HEARING REQUEST. Requires a hearing to be held as
provided by Sections 521.295-521.303 if, not later than the 15th day after
the date on which the person is considered to have received the notice of
the suspension or revocation under Section 521.295(b), DPS receives at its
headquarters in Austin, in writing, including a facsimile transmission, or
by another manner prescribed by DPS, a request for such a hearing.
Sec. 521.299. New title: HEARING DATE; RESCHEDULING. Requires a hearing
requested under Section 521.298 to be held not earlier than the 11th day
after the date on which the person requesting the hearing is notified of
the hearing. Requires the hearing to be set for the earliest practical
date. Authorizes a hearing to be continued on a motion of the person, DPS,
both parties, or as necessary to accommodate the docket of the presiding
officer. Provides that a hearing stays suspension or revocation of a
person's license until the date of the final decision of the presiding
officer.
Sec. 521.300. New title: HEARING: LOCATION; PRESIDING OFFICER. (a) Requires
a hearing under this subchapter to be conducted in a municipal court or a
justice court in the county in which the person resides. Provides that the
judge of the municipal court or the justice is designated as the presiding
officer.
(b) Provides that the presiding officer is entitled to receive a fee for
hearing the case if a fee is approved and set by the commissioners court in
which the person resides. Prohibits the fee from exceeding $5 and requires
the fee to be paid from the general revenue fund of the county.
(c) Authorizes the presiding officer to administer oaths and issue
subpoenas to compel the attendance of witness and the production of
relevant books and documents.
Sec. 521.301. New title: ISSUE AT HEARING. (a) Provides that the issue that
must be proved at the hearing by a preponderance of the evidence is whether
the grounds for suspension or revocation stated in the notice are true.
(b) Provides that if the presiding officer finds in the affirmative on that
issue, the suspension or revocation is sustained.
(c) Requires DPS to suspend the person's license for the period specified
by the presiding officer, which may not be less than 30 days or more than
one year if the presiding officer sustains a suspension.
(d) Prohibits DPS from suspending or revoking the person's license if the
presiding officer does not find in the affirmative on that issue.
(e) Provides that the decision of the presiding officer is final when
issued and signed.
Sec. 521.302. New title: FAILURE TO APPEAR. Provides that a person who
requests a hearing under this subchapter and fails to appear without just
cause waives the right to a hearing and the determination of DPS is final.
Sec. 521.303. New title: CONTINUANCE. Provides that a continuance under
Section 521.299 stays the suspension or revocation of a license until the
date of the final decision of the presiding officer.
Deletes Section 521.291 (Authority to Suspend or Revoke License; Notice;
Hearing), 521.592 (Written Charges Required), 521.293 (Jurisdiction;
Presiding Officer), 521.294 (Suspension; Revocation), 521.295 (Habitual
Violators; Notice), Transportation Code.
Sections 521.304-521.307 Redesignated from Sections 521.296-521.300.
Sec. 521.308. Redesignated from Section 521.302. APPEAL; JUDICIAL REVIEW.
(a) Authorizes a person whose driver's license suspension or revocation has
been sustained by a presiding officer under this subchapter to appeal the
decision of the presiding officer, rather than authorizing a person whose
driver's license has been suspended, whose license suspension has been
probated under Section 521.303, or who is denied a license or whose
driver's license has been canceled or revoked by DPS to appeal the action
unless the suspension, cancellation, or revocation is automatic under this
chapter or Chapter 522 (Commercial Driver's License).
(b) Provides that to appeal the decision of the presiding officer, rather
than the action, the person must file a petition not later than the 30th
day after the date on which the DPS order was entered in the county court
at law of the county in which the person resides, or, if there is no county
at law, in the county court. Provides that the person must send a
filestamped copy of the petition, certified by the clerk of the court in
which the petition is filed, to DPS by certified mail.
(c) Makes no changes in this subsection.
(d) Requires the court to take testimony, examine the facts of the case,
and determine whether the petitioner is, subject to the suspension or
revocation of a license under this subchapter, rather than whether the
petition is entitled to a license or is subject to the cancellation,
denial, suspension, revocation of a license under this chapter.
(e) Provides that a trial on appeal is a trial de novo, and the person,
rather than license holder, has the right to trial by jury.
(f) Provides that the filing of a petition of appeal as provided by this
section stays an order of suspension, probated suspension, or revocation
until the earlier of the 91st day after the date the appeal petition is
filed or the date the trial is completed and final judgment is rendered.
Makes a conforming change.
(g) Requires DPS to impose, on expiration of the stay, to impose the
suspension, probated suspension, or revocation. Prohibits the stay from be
extended, and prohibits an additional stay from being granted.
Sec. 521.309. Redesignated from Section 521.303. PROBATION OF SUSPENSION.
(a) Authorizes the presiding officer who conducted a hearing under this
subchapter, rather than Section 521.291, or the court that tries an appeal
under this subchapter, to recommend that the suspension be probated on any
terms and conditions considered necessary or proper by the presiding
officer or court, if it appears that justice and the best interests of the
public and the person, rather than the defendant, will be served by the
probation.
(b) Adds text prohibiting the revocation of a license from being probated.
(c) Redesignated from existing Subsection (b).
(d) Redesignated from existing Subsection (c).
(e) Requires the probationary period to be for a term of not less than 90
days or more than two years, if a presiding officer or a court probates a
suspension of a license under this section, rather than probates a
suspension of a driver's license or privilege under this section.
Redesignated from subsection (d).
Sec. 521.310. Redesignated from Section 521.304. PROBATION VIOLATION.
Requires the director of DPS (director) to notify the person, rather than
license holder, and summon the person to appear at a hearing in the court
or before the presiding officer or judge who, recommended that the person
be placed on probation, rather than that the suspension be probated, after
notice as provided by Sections 521.295 and 521.296, rather than Section
521.291. Makes conforming changes. Requires DPS, under certain conditions,
to take the action, rather than suspend the license, as determined in the
original hearing.
Sec. 521.311. Redesignated from Section 521.305. EFFECTIVE DATE OF ORDER.
Adds an exception as provided by another section of this subchapter to the
contrary, to the provision that a decision under this subchapter takes
effect on the 11th day after the date on which an order is rendered. Makes
a nonsubstantive change.
Sec. 521.312. Redesignated from Section 521.306. New title: PERIOD OF
SUSPENSION OR REVOCATION; REINSTATEMENT OF LICENSE. Deletes the prohibition
that revocation of a license may not be probated. Prohibits DPS from
suspending a license for a period that exceeds one year, except as provided
by Subsection (c), Section 521.293(b), rather than of this section, or
Subchapter O. Prohibits DPS from reinstating a license revoked, rather than
suspended, under Section 521.294(5) until the court that filed the report
for which the license was revoked files an additional report on final
disposition of the case.
Sec. 521.313. New title: REINSTATEMENT AND REISSUANCE; FEE. (a) Prohibits a
license suspended or revoked under this subchapter from being reinstated or
another license issued to the person until the person pays DPS a fee of
$100 in addition to any other fee required by law.
(b) Provides that the payment of a reinstatement fee is not required if a
suspension or revocation under this subchapter is rescinded by DPS, or not
sustained by a presiding officer or a court.
Deletes existing text which prohibits DPS from reinstating a license
suspended or revoked unless the person whose license was suspended or
revoked applies for reinstatement of the license and pays a $50
reinstatement fee.
Sec. 521.314. Redesignated from Section 521.307.
Sec. 521.315. Redesignated from Section 521.308. Authorizes, rather than
requires, DPS to require the license holder to surrender the license to the
department.
Sec. 521.316. Redesignated from Section 521.309.
Sec. 521.317. Redesignated from Section 521.310.
Sec. 521.318. Redesignated from Section 521.311.
Sec. 521.319. Redesignated from Section 521.312. Makes a nonsubstantive
change.
Sec. 521.320. Redesignated from Section 521.314.
SECTION 2. Amends Section 521.344(h), Transportation Code, to make a
conforming change.
SECTION 3. Amends Section 522.087(b), Transportation Code, to make
conforming changes.
SECTION 4. Amends Section 601.156(a), Transportation Code, to provide that
a hearing under this subchapter is subject to the notice and hearing
procedures of Sections 521.295-521.303 and to require it to be heard by
judge of a municipal court or a justice of the peace of the county, rather
than precinct, in which the person requesting the hearing resides.
SECTION 5. Amends Section 601.158, Transportation Code, by amending
Subsection (b) and adding Subsections (c)-(f), as follows:
(b) Provides that, to appeal a determination under Subsection (a), the
person must file a petition not later than the 30th day after the date of
the determination in the county court at law of the county in which the
person resides, or, if there is no county court at law, in county court of
the county, rather than providing that an appeal under this section is by
trial de novo to the county court of the county in which the hearing was
held.
(c) Requires the person who files an appeal under this section to send a
file-stamped copy of the petition by certified mail to DPS at DPS
headquarters in Austin. Provides that the copy must be certified by the
clerk of the court in which the petition is filed.
(d) Provides that the filing of a petition of appeals as provided by this
section stays an order of suspension until the earlier of the 91st day
after the date the appeal petition is filed or the date the trial is
completed and final judgement is rendered.
(e) Requires DPS to impose the suspension on the expiration of the stay.
Prohibits the stay from being extended. Prohibits an additional stay from
being granted.
(f) Provides that a trial is de novo.
SECTION 6. Amends Section 601.401, Transportation Code, as follows:
Sec. 601.401. New title: DEPARTMENT ACTIONS SUBJECT TO REVIEW. (a)
Authorizes an action, rather than act, of DPS to be appealed, unless an
order of suspension by DPS is based on an existing unsatisfied final
judgement rendered against a person by a court in this state arising out of
use of a motor vehicle in this state, or the suspension is automatic under
Section 601.231(a).
(b) Provides that, to appeal an action of DPS, the person must file a
petition not later than the 30th day after the date of the action in
specified locations. Deletes the provision that the petition may be filed
in the district court of the county in which the person resides if the
county does not have a county court at law and the county court does not
have the civil jurisdiction provided by general law for a county court.
(c) Requires a person who files an appeal under this section to send a
file-stamped copy of the petition by certified mail to DPS at the DPS
headquarters in Austin. Provides that the copy must be certified by the
clerk of the court in which the petition is filed.
(d) Provides that the filing of a petition of appeal as provided by this
section stays an oder of suspension until the earlier of the 91st day after
the date the appeal petition is filed or the date the trial is completed
and final judgment is rendered.
(e) Requires DPS to impose the suspension on the expiration of the stay.
Prohibits the suspension from being extended, and prohibits an additional
stay from being granted.
SECTION 7. Amends Section 2001.221, Government Code, to make conforming
changes.
SECTION 8. Amends Section 2002.023, Government Code, to make conforming
changes.
SECTION 9. Repealer: Sections 601.402 (Time for Appeal), 601.403 (Trial),
601.404 (Stay of Act on Appeal), 601.405 (Filing of Evidence of Financial
Responsibility; Effect on Appeal), 601.406 (Temporary Stay of Department's
Order on Filing of Affidavit), 601.407 (Stay After Plea or Conviction),
601.408 (Stay After Acquittal or Dismissal), 601.409 (Maintenance of
Evidence of Financial Responsibility), and 601.410 (Limit on Courts),
Transportation Code.
SECTION 10. Effective date: September 1, 2000.
Makes application of this Act prospective.
SECTION 11. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
C.S.H.B 3641 modifies the original by deleting SECTION 1, which proposed
to amend Section 521.291, Transportation Code, relating to the authority to
suspend or revoke a license, and to notice and hearing on that matter.
C.S.H.B 3641 modifies the original by deleting SECTION 2, which proposed
to amends Section 521.292, Transportation Code, requiring the hearing to be
based on written charges.
C.S.H.B 3641 modifies the original by deleting SECTION 3, which proposed
to amend Section 521.293, Transportation Code, relating to jurisdiction and
the presiding officer.
C.S.H.B 3641 modifies the original by deleting SECTION 4, which proposed
to amend Section 521.294, Transportation Code, relating to suspension and
revocation.
C.S.H.B 3641 modifies the original by deleting SECTION 5, which proposed
to amend Section 521.295, Transportation Code, relating to habitual
violators and notice.
C.S.H.B 3641 modifies the original by deleting SECTION 6, which proposed
to amend Section 521.301, Transportation Code, providing that an order is
binding on the person to whom it pertains.
C.S.H.B 3641 modifies the original by deleting SECTION 7, which proposed
to amend Section 601.156, Transportation Code, relating to the setting of a
hearing.
The substitute in SECTION 1 amends Subchapter N, Chapter 521,
Transportation Code, by adding new Sections 521.291-521.320, relating to
general provisions relating to license denial, suspension, or revocation.
For a complete analysis of these provisions see the Section-by-Section
Analysis.
The substitute in SECTION 2 amends Section 521.344, Transportation Code, to
make a conforming change.
The substitute in SECTION 3 amends Section 522.087, Transportation Code, to
make a conforming change.
The substitute in SECTION 4 amends Section 601.156(a), Transportation Code,
to make a conforming change.
The substitute in SECTION 5 amends Section 601.158, Transportation Code, by
amending Subsection (b) and adding Subsections (c)-(f), as follows:
(b) Provides that, to appeal a determination under Subsection (a), the
person must file a petition not later than the 30th day after the date of
the determination in the county court at law of the county in which the
person resides, or, if there is no county court at law, in county court of
the county, rather than providing that an appeal under this section is by
trial de novo to the county court of the county in which the hearing was
held.
(c) Requires the person who files an appeal under this section to send a
file-stamped copy of the petition by certified mail to DPS at DPS
headquarters in Austin. Provides that the copy must be certified by the
clerk of the court in which the petition is filed.
(d) Provides that the filing of a petition of appeals as provided by this
section stays an order of suspension until the earlier of the 91st day
after the date the appeal petition is filed or the date the trial is
completed and final judgement is rendered.
(e) Requires DPS to impose the suspension on the expiration of the stay.
Prohibits the stay from being extended. Prohibits an additional stay from
being granted.
(f) Provides that a trial on appeal is de novo.
The substitute in SECTION 6 amends Section 601.401, Transportation Code, as
follows:
Sec. 601.401. New title: DEPARTMENT ACTIONS SUBJECT TO REVIEW. (a)
Authorizes an action, rather than act, of DPS to be appealed, unless an
order of suspension by the department is based on an existing unsatisfied
final judgement rendered against a person by a court in this state arising
out of use of a motor vehicle in this state, or the suspension is
automatic under Section 601.231(a).
(b) Provides that, to appeal an action of DPS, the person must file a
petition not later than the 30th day after the date of the action in
specified locations. Deletes the provision that the petition may be filed
in the district court of the county in which the person resides if the
county does not have a county court at law and the county court does not
have the civil jurisdiction provided by general law for a county court.
(c) Requires a person who files an appeal under this section to send a
file-stamped copy of the petition by certified mail to DPS at the DPS
headquarters in Austin. Provides that the copy must be certified by the
clerk of the court in which the petition is filed.
(d) Provides that the filing of a petition of appeal as provided by this
section stays an order of suspension until the earlier of the 91st day
after the date the appeal petition is filed or the date the trial is
completed and final judgment is rendered.
(e) Requires DPS to impose the suspension on the expiration of the stay.
Prohibits the suspension from being extended, and prohibits an additional
stay from being granted.
The substitute in SECTION 7 amends Section 2001.221, Government Code, to
make a conforming change.
The substitute in SECTION 8 amends Section 2002.023, Government Code, to
make a conforming change.
The substitute in SECTION 9 repeals: Sections 601.402 (Time for Appeal),
601.403 (Trial), 601.404 (Stay of Act on Appeal), 601.405 (Filing of
Evidence of Financial Responsibility; Effect on Appeal), 601.406 (Temporary
Stay of Department's Order on Filing of Affidavit), 601.407 (Stay After
Plea or Conviction), 601.408 (Stay After Acquittal or Dismissal), 601.409
(Maintenance of Evidence of Financial Responsibility), and 601.410 (Limit
on Courts), Transportation Code.
The substitute in SECTION 10 amends the original by changing the effective
and prospective dates from September 1, 1999, to September 1, 2000, and by
making application of this Act prospective.
SECTION 8 of the original (long emergency clause) is redesignated to
SECTION 11 (short emergency clause) of the substitute.