By Hill H.B. No. 487
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the civil and criminal consequences of possessing or
1-3 consuming an alcoholic beverage in a motor vehicle or operating a
1-4 motor vehicle while intoxicated.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 49.03, Penal Code, is amended to read as
1-7 follows:
1-8 Sec. 49.03. CONSUMPTION OR POSSESSION OF ALCOHOLIC BEVERAGE
1-9 IN MOTOR VEHICLE. (a) A person commits an offense if the person
1-10 consumes an alcoholic beverage while operating a motor vehicle in a
1-11 public place [and is observed doing so by a peace officer].
1-12 (b) An occupant of a motor vehicle that is located on a
1-13 public highway, or on the right-of-way of a public highway,
1-14 including a rest area, comfort station, picnic area, roadside park,
1-15 or scenic overlook situated on the right-of-way of a public
1-16 highway, commits an offense if the person:
1-17 (1) consumes an alcoholic beverage; or
1-18 (2) possesses in the passenger area of the motor
1-19 vehicle a bottle, can, or other receptacle that:
1-20 (A) contains an alcoholic beverage; and
1-21 (B) has been opened, has a broken seal, or has
1-22 the contents partially removed.
1-23 (c) It is an affirmative defense to prosecution under
1-24 Subsection (b) that the vehicle was not owned or being leased by
2-1 the defendant and the defendant did not know that the open
2-2 container of alcoholic beverage was in the vehicle or that the
2-3 person consuming the alcoholic beverage is, or that the receptacle
2-4 containing the alcoholic beverage is in the possession of:
2-5 (1) a passenger in the living quarters of a house
2-6 coach or house trailer; or
2-7 (2) a passenger in a motor vehicle designed,
2-8 maintained, or used primarily for the transportation of persons for
2-9 compensation.
2-10 (d) An offense under this section is a Class C misdemeanor
2-11 punishable by a fine not to exceed $50, including all court costs.
2-12 SECTION 2. Section 49.07, Penal Code, is amended by amending
2-13 Subsections (b) and (c) and adding Subsection (d) to read as
2-14 follows:
2-15 (b) In this section:
2-16 (1) "Miscarriage" means the interruption of the normal
2-17 development of a fetus, other than by a live birth, resulting in
2-18 the complete expulsion or extraction from a pregnant woman of a
2-19 product of human conception.
2-20 (2) "Serious[, "serious] bodily injury" means injury
2-21 that creates a substantial risk of death or that causes serious
2-22 permanent disfigurement or protracted loss or impairment of the
2-23 function of any bodily member or organ. The term includes any
2-24 injury that causes a pregnant woman to suffer a miscarriage or
2-25 stillbirth.
2-26 (3) "Stillbirth" means the death of a fetus before the
2-27 complete expulsion or extraction from its mother, regardless of the
3-1 duration of the pregnancy, as manifested by the fact that after
3-2 expulsion or extraction the fetus does not breathe spontaneously or
3-3 show any other evidence of life such as heartbeat, pulsation of the
3-4 umbilical cord, or definite movement of voluntary muscles.
3-5 (c) Except as provided by Subsection (d), an [An] offense
3-6 under this section is a felony of the third degree.
3-7 (d) If it is shown on the trial of an offense under this
3-8 section that the conduct charged caused a pregnant woman to suffer
3-9 a miscarriage or stillbirth, an offense under this section is a
3-10 felony of the second degree.
3-11 SECTION 3. Section 49.09, Penal Code, is amended by adding
3-12 Subsection (g) to read as follows:
3-13 (g) If it is shown on the trial of an offense under Section
3-14 49.04, 49.05, or 49.06 that an analysis of a specimen of the
3-15 person's blood, breath, urine, or other bodily substance showed an
3-16 alcohol concentration of 0.15 or more, the offense is a Class A
3-17 misdemeanor.
3-18 SECTION 4. The section heading to and Subsections (a), (b),
3-19 and (d), Section 521.344, Transportation Code, are amended to read
3-20 as follows:
3-21 Sec. 521.344. SUSPENSION FOR OFFENSES INVOLVING INTOXICATION
3-22 [RELATED TO USE OF ALCOHOL]. (a) Except as provided by Sections
3-23 521.342(b) and 521.345, and by Subsections (d)-(i), if a person is
3-24 convicted of an offense under Section 49.04 or 49.07, Penal Code,
3-25 [that is committed as a result of the introduction of alcohol into
3-26 the body,] the license suspension:
3-27 (1) begins on a date set by the court that is not
4-1 earlier than the date of the conviction or later than the 30th day
4-2 after the date of the conviction, as determined by the court; and
4-3 (2) continues for a period set by the court according
4-4 to the following schedule:
4-5 (A) not less than 90 days or more than one year
4-6 if the person is punished under Section 49.04 or 49.07, Penal Code;
4-7 or
4-8 (B) not less than one year [180 days] or more
4-9 than two years, if the person is punished under Section 49.09,
4-10 Penal Code.
4-11 (b) Except as provided by Section 521.342(b), if a person is
4-12 convicted of an offense under Section 49.08, Penal Code, the
4-13 license suspension [begins]:
4-14 (1) begins on a date set by the court that is not
4-15 earlier than the date of the conviction or later than the 30th day
4-16 after the date of the conviction, as determined by the court; and
4-17 (2) continues for a period set by the court of not
4-18 less than one year [180 days] or more than two years.
4-19 (d) Except as provided by Subsection (e) and Section
4-20 521.342(b), during a period of probation the department may not
4-21 revoke the person's license if the person is required under Section
4-22 13(h) or (j), Article 42.12, Code of Criminal Procedure, to
4-23 successfully complete an educational program designed to
4-24 rehabilitate persons who have operated motor vehicles while
4-25 intoxicated, unless the person was punished under Section 49.09,
4-26 Penal Code. The department may not revoke the license of a person:
4-27 (1) for whom the jury has recommended that the license
5-1 not be revoked under Section 13(g), Article 42.12, Code of Criminal
5-2 Procedure; or
5-3 (2) who is placed under community supervision under
5-4 that article and is required as a condition of community
5-5 supervision to not operate a motor vehicle unless the vehicle is
5-6 equipped with the device described by Section 13(i) of that
5-7 article, unless the person was punished under Section 49.09, Penal
5-8 Code.
5-9 SECTION 5. Section 9(h), Article 42.12, Code of Criminal
5-10 Procedure, is amended to read as follows:
5-11 (h) On a determination by the judge that alcohol or drug
5-12 abuse may have contributed to the commission of the offense, or in
5-13 any case involving a second or subsequent offense under Section
5-14 49.04, Penal Code, or a second or subsequent offense under Section
5-15 49.07 or 49.08 of that code that involves the operation of a motor
5-16 vehicle, the judge shall direct a supervision officer approved by
5-17 the community supervision and corrections department or the judge
5-18 or a person, program, or other agency approved by the Texas
5-19 Commission on Alcohol and Drug Abuse, to conduct an evaluation to
5-20 determine the appropriateness of, and a course of conduct necessary
5-21 for, alcohol or drug rehabilitation for a defendant and to report
5-22 that evaluation to the judge. The evaluation shall be made:
5-23 (1) after arrest and before conviction, if requested
5-24 by the defendant;
5-25 (2) after conviction and before sentencing, if the
5-26 judge assesses punishment in the case;
5-27 (3) after sentencing and before the entry of a final
6-1 judgment, if the jury assesses punishment in the case; or
6-2 (4) after community supervision is granted, if the
6-3 evaluation is required as a condition of community supervision
6-4 under Section 13 of this article.
6-5 SECTION 6. Sections 13(a), (b), and (i), Article 42.12, Code
6-6 of Criminal Procedure, are amended to read as follows:
6-7 (a) A judge granting community supervision to a defendant
6-8 convicted of an offense under Chapter 49, Penal Code, shall require
6-9 as a condition of community supervision that the defendant submit
6-10 to:
6-11 (1) not less than three days of confinement in county
6-12 jail if the defendant was punished under Section 49.09(a);
6-13 (2) not less than five days of confinement in county
6-14 jail plus the completion of a course of conduct for the
6-15 rehabilitation of the defendant's drug or alcohol dependence
6-16 condition, if the defendant was punished under Section 49.09(g);
6-17 (3) not less than 10 days of confinement in county
6-18 jail if the defendant was punished under Section 49.09(b), except
6-19 as provided by Subdivision (4) [or (c)]; [or]
6-20 (4) not less than 30 days of confinement in county
6-21 jail if the defendant was:
6-22 (A) convicted under Section 49.07; or
6-23 (B) punished under Section 49.09(g), if it is
6-24 shown on the trial of the offense that the defendant has previously
6-25 been convicted of an offense for which the defendant was punished
6-26 under Section 49.09(g); or
6-27 (5) not less than 120 days of confinement in county
7-1 jail if the defendant was convicted under Section 49.08 [and]
7-2 [(2) an evaluation by a supervision officer or by a
7-3 person, program, or facility approved by the Texas Commission on
7-4 Alcohol and Drug Abuse for the purpose of having the facility
7-5 prescribe and carry out a course of conduct necessary for the
7-6 rehabilitation of the defendant's drug or alcohol dependence
7-7 condition].
7-8 (b) A judge granting community supervision to a defendant
7-9 convicted of an offense under Sections 49.04-49.08 [Section 49.08],
7-10 Penal Code, shall require as a condition of community supervision
7-11 that the defendant submit to an evaluation by a supervision officer
7-12 or by a person, program, or facility approved by the Texas
7-13 Commission on Alcohol and Drug Abuse for the purpose of having the
7-14 facility prescribe and supervise a course of conduct necessary for
7-15 the rehabilitation of the defendant's drug or alcohol dependence
7-16 condition [a period of confinement of not less than 120 days].
7-17 (i) If a person convicted of an offense under Sections
7-18 49.04-49.08, Penal Code, is placed on community supervision, the
7-19 court may require as a condition of community supervision that the
7-20 defendant have a device installed, on the motor vehicle owned by
7-21 the defendant or on the vehicle most regularly driven by the
7-22 defendant, that uses a deep-lung breath analysis mechanism to make
7-23 impractical the operation of the motor vehicle if ethyl alcohol is
7-24 detected in the breath of the operator and that the defendant not
7-25 operate any motor vehicle that is not equipped with that device.
7-26 If the person is convicted of an offense under Sections
7-27 49.04-49.06, Penal Code, and punished under Section 49.09(a), [or]
8-1 (b), or (g), Penal Code, or of a second or subsequent offense under
8-2 Section 49.07 or 49.08, Penal Code, and the person after conviction
8-3 of either offense is placed on community supervision, the court
8-4 shall require as a condition of community supervision that the
8-5 defendant have the device installed on the appropriate vehicle and
8-6 that the defendant not operate any motor vehicle unless the vehicle
8-7 is equipped with that device. Before placing on community
8-8 supervision a person convicted of an offense under Sections
8-9 49.04-49.08, Penal Code, the court shall determine from criminal
8-10 history record information maintained by the Department of Public
8-11 Safety whether the person has one or more previous convictions
8-12 under Sections 49.04-49.08, Penal Code, or has one previous
8-13 conviction under Sections 49.04-49.07, Penal Code, or one previous
8-14 conviction under Section 49.08, Penal Code. If the court
8-15 determines that the person has one or more such previous
8-16 convictions, the court shall require as a condition of community
8-17 supervision that the defendant have that device installed on the
8-18 motor vehicle owned by the defendant or on the vehicle most
8-19 regularly driven by the defendant and that the defendant not
8-20 operate any motor vehicle unless the vehicle is equipped with the
8-21 device described in this subsection. The court shall require the
8-22 defendant to obtain the device at the defendant's own cost before
8-23 the 30th day after the date of conviction unless the court finds
8-24 that to do so would not be in the best interest of justice and
8-25 enters its findings on record. The court shall require the
8-26 defendant to provide evidence to the court within the 30-day period
8-27 that the device has been installed on the appropriate vehicle and
9-1 order the device to remain installed on that vehicle for a period
9-2 not less than 50 percent of the supervision period. If the court
9-3 determines the offender is unable to pay for the device, the court
9-4 may impose a reasonable payment schedule not to exceed twice the
9-5 period of the court's order. The Department of Public Safety shall
9-6 approve devices for use under this subsection. Section 521.247,
9-7 Transportation Code, applies [The provisions of Section 23A(f),
9-8 Chapter 173, Acts of the 47th Legislature, Regular Session, 1941
9-9 (Article 6687b, Vernon's Texas Civil Statutes), apply] to the
9-10 approval of a device under this subsection and the consequences of
9-11 that approval. Notwithstanding the provisions of this section, if
9-12 a person is required to operate a motor vehicle in the course and
9-13 scope of the person's employment and if the vehicle is owned by the
9-14 employer, the person may operate that vehicle without installation
9-15 of an approved ignition interlock device if the employer has been
9-16 notified of that driving privilege restriction and if proof of that
9-17 notification is with the vehicle. This employment exemption does
9-18 not apply, however, if the business entity that owns the vehicle is
9-19 owned or controlled by the person whose driving privilege has been
9-20 restricted.
9-21 SECTION 7. Sections 13(g) and (k), Article 42.12, Code of
9-22 Criminal Procedure, are amended to read as follows:
9-23 (g) A jury that recommends community supervision for a
9-24 person convicted of an offense under Sections 49.04-49.08, Penal
9-25 Code, may recommend that any driver's license issued to the
9-26 defendant under Chapter 173, Acts of the 47th Legislature, Regular
9-27 Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes), not
10-1 be suspended. This subsection does not apply to a person punished
10-2 under Section 49.09, Penal Code.
10-3 (k) Notwithstanding Section 24(g), Chapter 173, Acts of the
10-4 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
10-5 Texas Civil Statutes), if the judge, under Subsection (h) or (j) of
10-6 this section, permits or requires a defendant punished under
10-7 Section 49.09, Penal Code, to attend an educational program as a
10-8 condition of community supervision, or waives the required
10-9 attendance for such a program, and the defendant has previously
10-10 been required to attend such a program, or the required attendance
10-11 at the program had been waived, the judge nonetheless shall order
10-12 the suspension of the driver's license, permit, or operating
10-13 privilege of that person for a period determined by the judge
10-14 according to the following schedule:
10-15 (1) not less than 90 days or more than 365 days, if
10-16 the defendant is convicted under Sections 49.04-49.08, Penal Code;
10-17 or
10-18 (2) not less than one year [180 days] or more than two
10-19 years, if the defendant is punished under Section 49.09, Penal
10-20 Code.
10-21 SECTION 8. Section 16, Article 42.12, Code of Criminal
10-22 Procedure, is amended by amending Subsection (b) and adding
10-23 Subsection (b-1) to read as follows:
10-24 (b) Except as provided by Subsection (b-1), the [The] amount
10-25 of community service work ordered by the judge:
10-26 (1) may not exceed 1,000 hours and may not be less
10-27 than 320 hours for an offense classified as a first degree felony;
11-1 (2) may not exceed 800 hours and may not be less than
11-2 240 hours for an offense classified as a second degree felony;
11-3 (3) may not exceed 600 hours and may not be less than
11-4 160 hours for an offense classified as a third degree felony;
11-5 (4) may not exceed 400 hours and may not be less than
11-6 120 hours for an offense classified as a state jail felony;
11-7 (5) may not exceed 200 hours and may not be less than
11-8 80 hours for an offense classified as a Class A misdemeanor or for
11-9 any other misdemeanor for which the maximum permissible
11-10 confinement, if any, exceeds six months or the maximum permissible
11-11 fine, if any, exceeds $4,000; and
11-12 (6) may not exceed 100 hours and may not be less than
11-13 24 hours for an offense classified as a Class B misdemeanor or for
11-14 any other misdemeanor for which the maximum permissible
11-15 confinement, if any, does not exceed six months and the maximum
11-16 permissible fine, if any, does not exceed $4,000.
11-17 (b-1) The amount of community service work ordered by the
11-18 judge:
11-19 (1) may not be less than 30 eight-hour days for an
11-20 offense under Section 49.04, Penal Code, that is punished under
11-21 Section 49.09(a) of that code; and
11-22 (2) may not be less than 60 eight-hour days for an
11-23 offense under Section 49.04, Penal Code, that is punished under
11-24 Section 49.09(b) of that code.
11-25 SECTION 9. Title 4, Civil Practice and Remedies Code, is
11-26 amended by adding Chapter 99 to read as follows:
11-27 CHAPTER 99. INTOXICATION ASSAULT RESULTING IN
12-1 MISCARRIAGE OR STILLBIRTH
12-2 Sec. 99.001. DEFINITIONS. In this chapter:
12-3 (1) "Miscarriage" means the interruption of the normal
12-4 development of a fetus, other than by a live birth, resulting in
12-5 the complete expulsion or extraction from a pregnant woman of a
12-6 product of human conception.
12-7 (2) "Stillbirth" means the death of a fetus before the
12-8 complete expulsion or extraction from its mother, regardless of the
12-9 duration of the pregnancy, as manifested by the fact that after
12-10 expulsion or extraction the fetus does not breathe spontaneously or
12-11 show any other evidence of life such as heartbeat, pulsation of the
12-12 umbilical cord, or definite movement of voluntary muscles.
12-13 Sec. 99.002. CAUSE OF ACTION. A person is liable for
12-14 damages under this chapter if, as a result of violating Section
12-15 49.07, Penal Code, a pregnant woman suffers a bodily injury that
12-16 results in a miscarriage or stillbirth.
12-17 Sec. 99.003. PERSONS WHO MAY BRING ACTION. (a) An action
12-18 under this chapter may be brought by:
12-19 (1) the mother or father of the fetus;
12-20 (2) the estate of the mother of the fetus, if the
12-21 mother is deceased; and
12-22 (3) the estate of the father of the fetus, if both the
12-23 mother and the father are deceased.
12-24 (b) The father of the fetus may not bring an action under
12-25 this chapter if the pregnancy was the result of an act of the
12-26 father that constitutes a crime under Section 22.011 or 22.021,
12-27 Penal Code.
13-1 Sec. 99.004. DAMAGES. (a) In an action under this chapter,
13-2 a court may award:
13-3 (1) compensatory damages, including damages for mental
13-4 anguish and loss of companionship and society; and
13-5 (2) exemplary damages under Chapter 41.
13-6 (b) Damages under this chapter are in addition to other
13-7 damages that may be awarded under law for the injury to the
13-8 pregnant woman.
13-9 SECTION 10. Subchapter D, Chapter 411, Government Code, is
13-10 amended by adding Section 411.048 to read as follows:
13-11 Sec. 411.048. REPORT RELATED TO CERTAIN INTOXICATION
13-12 OFFENSES. (a) The department shall compile and maintain
13-13 statistical information on the prosecution of offenses under
13-14 Chapter 49, Penal Code, relating to the operation of a motor
13-15 vehicle while intoxicated, including a breakdown by race of the
13-16 number of persons arrested, the number of persons released with no
13-17 charges following arrest, the number of persons convicted, and the
13-18 number of persons with respect to whom the charges are dismissed.
13-19 The department shall submit a report of the statistical information
13-20 covering the two preceding years to the legislature before March 31
13-21 of each even-numbered year.
13-22 (b) Each law enforcement agency that enforces Chapter 49,
13-23 Penal Code, and each appropriate prosecuting attorney's office and
13-24 court in this state shall report in the manner and on a form
13-25 prescribed by the department the information necessary for the
13-26 department to compile the information required by Subsection (a).
13-27 SECTION 11. (a) This Act takes effect September 1, 1999.
14-1 (b) The changes in law made by Sections 1 and 2 of this Act
14-2 in amending Sections 49.03 and 49.07, Penal Code, apply only to an
14-3 offense committed on or after September 1, 1999. An offense that
14-4 was committed before September 1, 1999, is governed by the law in
14-5 effect on the date the offense was committed, and the former law is
14-6 continued in effect for that purpose.
14-7 (c) The change in law made by Section 4 of this Act applies
14-8 only to the suspension of the driver's license of a person
14-9 convicted of an offense committed on or after September 1, 1999.
14-10 The suspension of the driver's license of a person convicted of an
14-11 offense that was committed before September 1, 1999, is governed by
14-12 the law in effect on the date that the offense was committed, and
14-13 the former law is continued in effect for that purpose.
14-14 (d) The change in law made by Section 5 of this Act applies
14-15 only to an evaluation ordered in relation to an offense committed
14-16 on or after September 1, 1999. An evaluation ordered in relation
14-17 to an offense that was committed before September 1, 1999, is
14-18 governed by the law in effect on the date that the offense was
14-19 committed, and the former law is continued in effect for that
14-20 purpose.
14-21 (e) The changes in law made by Sections 7 and 8 of this Act
14-22 apply only to a person placed on community supervision or assigned
14-23 to community service for an offense committed on or after September
14-24 1, 1999. A person placed on community supervision or assigned to
14-25 community service for an offense that was committed before
14-26 September 1, 1999, is governed by the law in effect on the date the
14-27 offense was committed, and the former law is continued in effect
15-1 for that purpose.
15-2 (f) For the purposes of this section, an offense is
15-3 committed before September 1, 1999, if any element of the offense
15-4 occurs before that date.
15-5 (g) The change in law made by this Act in adding Chapter 99,
15-6 Civil Practice and Remedies Code, applies only to a cause of action
15-7 that accrues on or after the effective date of this Act. A cause
15-8 of action that accrues before the effective date of this Act is
15-9 governed by the law applicable to the cause of action immediately
15-10 before the effective date of this Act, and that law is continued in
15-11 effect for that purpose.
15-12 SECTION 12. The changes in law made by Sections 3 and 6 of
15-13 this Act apply only to an offense committed on or after the
15-14 effective date of this Act. An offense committed before the
15-15 effective date of this Act is covered by the law in effect when the
15-16 offense was committed, and the former law is continued in effect
15-17 for that purpose. For purposes of this section, an offense was
15-18 committed before the effective date of this Act if any element of
15-19 the offense occurred before that date.
15-20 SECTION 13. The importance of this legislation and the
15-21 crowded condition of the calendars in both houses create an
15-22 emergency and an imperative public necessity that the
15-23 constitutional rule requiring bills to be read on three several
15-24 days in each house be suspended, and this rule is hereby suspended.