SRC-JJJ S.B. 128 76(R)   BILL ANALYSIS


Senate Research Center   S.B. 128
76R2850 JD-DBy: Nelson
Criminal Justice
2/22/1999
As Filed


DIGEST 

Currently, federal law requires each state, under the Transportation Equity
Act for the 21st Century (TEA-21), to have an open container law and a
repeat offender law for driving while intoxicated (DWI).   In order for the
state to comply,  TEA-21 must be in effect by certain deadlines, or certain
funds will be  transferred to the state's highway safety and other
safety-related programs. Noncompliance with TEA-21with respect to an open
container law or with respect to repeat offenders for DWI by the specified
dates may result in the state's loss of significant construction dollars.
This bill would make provisions for both the Repeat DWI Offender Program
and the Open Container Program as prescribed by federal law, establish that
it is an offense for the driver or passenger of a motor vehicle to possess
an open alcoholic beverage container while in a public place, and provides
for an affirmative defense to prosecution for certain people consuming or
possessing an open alcoholic beverage.  This bill also provides certain
punishments and consequences for repeat DWI offenders. 

PURPOSE

As proposed, S.B. 128 establishes provisions regarding the civil and
criminal consequences of possessing or consuming an alcoholic beverage in a
motor vehicle while intoxicated. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 49.03, Penal Code, to establish that a person
who commits an offense with  an occupant of a motor vehicle that is located
on a public highway, the right-of-way on a public highway, or other
specified areas along a highway, if the occupant consumes or possesses an
alcoholic beverage.  Establishes an affirmative defense to prosecution that
the person consuming alcoholic beverage is in the possession of certain
persons.  Deletes text regarding the need for observance by a peace
officer.  Makes a conforming change. 

SECTION 2.  Amends Section 521.251, Transportation Code, by redesignating
Subsection (d) as (e) and adding a new Subsection (d) to prohibit an order
granting a person an occupational license from taking effect  before the
first anniversary of the effective date of the suspension, if the person's
driver's license has been suspended for a second or subsequent conviction
under Section 49.04, 49.07, or 49.08, Penal Code.  Makes a conforming
change. 

SECTION 3.  Amends Sections 521.344(a), (b), and (d), Transportation Code,
as follows: 

Sec. 521.344.  New heading: SUSPENSION FOR OFFENSES INVOLVING INTOXICATION.
Establishes that if a person is convicted of an offense under Section 49.04
or 49.07, Penal Code, rather than an offense committed as a result of the
introduction of alcohol into the body, the license suspension continues for
not less than one year, rather than 180 days.  Sets forth exceptions to
suspension of a license for persons punished under Section 94.09, Penal
Code.  Makes conforming and nonsubstantive changes. 

SECTION 4.  Amends Section 9(h), Article 42.12, Code of Criminal Procedure,
to require a judge  to direct a supervision officer to conduct an
evaluation to determine the appropriateness of, and best course of action
for rehabilitation for cases involving more than one offense under Section
49.04, 49.07, or 49.08, Penal Code, that involves the operation of a motor
vehicle. 

SECTION 5.  Amends Sections 13(g) and (k), Article 42.12, Code of Criminal
Procedure, to provide that Subsection (g) does not apply to a person
punished under Section 49.09, Penal Code.  Makes a conforming change. 

SECTION 6.  Amends Section 16, Article 42.12, Code of Criminal Procedure,
by amending Subsection (b) and adding Subsection (b-1), to establish the
amount of community service work a judge may order under Section 49.04(a)
and (b).  Makes a conforming change. 
            
SECTION 7.  Effective date: September 1, 1999.
            Makes application of this Act prospective.

SECTION 8.  Emergency clause.