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.