76R12445 JD-F
By Dunnam H.B. No. 3489
Substitute the following for H.B. No. 3489:
By Dunnam C.S.H.B. No. 3489
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the prosecution of certain offenses relating to the
1-3 operating of a motor vehicle or a watercraft while intoxicated.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 49.09, Penal Code, is amended to read as
1-6 follows:
1-7 Sec. 49.09. ENHANCED OFFENSES AND PENALTIES. (a) If it is
1-8 shown at [on] the punishment phase of the trial of an offense under
1-9 Section 49.04, 49.05, or 49.06 that the person has previously been
1-10 convicted one time of an offense relating to the operating of a
1-11 motor vehicle while intoxicated, an offense of operating an
1-12 aircraft while intoxicated, or an offense of operating a watercraft
1-13 while intoxicated, the offense is a Class A misdemeanor, with a
1-14 minimum term of confinement of 30 days.
1-15 (b) [If it is shown on the trial of an offense under Section
1-16 49.04, 49.05, or 49.06 that the person has previously been
1-17 convicted two times of an offense relating to the operating of a
1-18 motor vehicle while intoxicated, an offense of operating an
1-19 aircraft while intoxicated, or an offense of operating a watercraft
1-20 while intoxicated, the offense is a felony of the third degree.]
1-21 [(c)] For the purposes of this section:
1-22 (1) "Offense relating to the operating of a motor
1-23 vehicle while intoxicated" means:
1-24 (A) an offense under Section 49.04;
2-1 (B) an offense under Section 49.07 or 49.08, if
2-2 the vehicle operated was a motor vehicle;
2-3 (C) an offense under Article 6701l-1, Revised
2-4 Statutes, as that law existed before September 1, 1994;
2-5 (D) an offense under Article 6701l-2, Revised
2-6 Statutes, as that law existed before January 1, 1984;
2-7 (E) an offense under Section 19.05(a)(2), as
2-8 that law existed before September 1, 1994, if the vehicle operated
2-9 was a motor vehicle; or
2-10 (F) an offense under the laws of another state
2-11 that prohibit the operation of a motor vehicle while intoxicated.
2-12 (2) "Offense of operating an aircraft while
2-13 intoxicated" means:
2-14 (A) an offense under Section 49.05;
2-15 (B) an offense under Section 49.07 or 49.08, if
2-16 the vehicle operated was an aircraft;
2-17 (C) an offense under Section 1, Chapter 46, Acts
2-18 of the 58th Legislature, Regular Session, 1963 (Article 46f-3,
2-19 Vernon's Texas Civil Statutes), as that law existed before
2-20 September 1, 1994;
2-21 (D) an offense under Section 19.05(a)(2), as
2-22 that law existed before September 1, 1994, if the vehicle operated
2-23 was an aircraft; or
2-24 (E) an offense under the laws of another state
2-25 that prohibit the operation of an aircraft while intoxicated.
2-26 (3) "Offense of operating a watercraft while
2-27 intoxicated" means:
3-1 (A) an offense under Section 49.06;
3-2 (B) an offense under Section 49.07 or 49.08, if
3-3 the vehicle operated was a watercraft;
3-4 (C) an offense under Section 31.097, Parks and
3-5 Wildlife Code, as that law existed before September 1, 1994;
3-6 (D) an offense under Section 19.05(a)(2), as
3-7 that law existed before September 1, 1994, if the vehicle operated
3-8 was a watercraft; or
3-9 (E) an offense under the laws of another state
3-10 that prohibit the operation of a watercraft while intoxicated.
3-11 (c) [(d)] For the purposes of this section, a conviction for
3-12 an offense under Section 49.04, 49.05, 49.06, 49.07, or 49.08 that
3-13 occurs on or after September 1, 1994, is a final conviction,
3-14 whether the sentence for the conviction is imposed or probated.
3-15 (d) [(e)] A conviction may not be used for purposes of
3-16 enhancement under this section if:
3-17 (1) the conviction was a final conviction under
3-18 Subsection (c) [(d)] and was for an offense committed more than 10
3-19 years before the offense for which the person is being tried was
3-20 committed; and
3-21 (2) the person has not been convicted of an offense
3-22 under Section 49.04, 49.05, 49.06, 49.07, or 49.08 or any offense
3-23 related to operating a motor vehicle while intoxicated committed
3-24 within 10 years before the date on which the offense for which the
3-25 person is being tried was committed.
3-26 (e) [(f)] A conviction may be used for purposes of
3-27 enhancement under this section or enhancement under Subchapter D,
4-1 Chapter 12, but not under both this section and Subchapter D.
4-2 SECTION 2. Chapter 38, Code of Criminal Procedure, is
4-3 amended by adding Article 38.39 to read as follows:
4-4 Art. 38.39. DWI VIDEOTAPES. (a) A person arrested for an
4-5 offense under Section 49.04, 49.07, or 49.08, Penal Code, must be
4-6 videotaped if the county in which the person is arrested is
4-7 required to maintain videotaping equipment.
4-8 (b) Each county with a population of 25,000 or more shall
4-9 purchase and maintain electronic devices capable of visually
4-10 recording a person arrested in the county for an offense under
4-11 Section 49.04, 49.07, or 49.08, Penal Code.
4-12 (c) A videotape made under this article must be maintained
4-13 until the final disposition of any proceeding against the defendant
4-14 relating to the arrest and must be made available to any attorney
4-15 representing the defendant during the period it is maintained.
4-16 (d) If a videotape of a defendant is not made as required by
4-17 this article:
4-18 (1) the results of an analysis of a specimen are
4-19 inadmissible in a subsequent proceeding if the person consented to
4-20 the taking of the specimen of the person's blood or breath; or
4-21 (2) the person's refusal is inadmissible in a
4-22 subsequent proceeding if the person refused to consent to the
4-23 taking of a specimen of the person's blood or breath.
4-24 SECTION 3. Section 724.048, Transportation Code, is amended
4-25 to read as follows:
4-26 Sec. 724.048. RELATIONSHIP OF ADMINISTRATIVE PROCEEDING TO
4-27 CRIMINAL PROCEEDING. [(a) The determination of the department or
5-1 administrative law judge:]
5-2 [(1) is a civil matter;]
5-3 [(2) is independent of and is not an estoppel as to
5-4 any matter in issue in an adjudication of a criminal charge arising
5-5 from the occurrence that is the basis for the suspension or denial;
5-6 and]
5-7 [(3) does not preclude litigation of the same or
5-8 similar facts in a criminal prosecution.]
5-9 [(b) Except as provided by Subsection (c), the disposition
5-10 of a criminal charge does not affect a license suspension or denial
5-11 under this chapter and is not an estoppel as to any matter in issue
5-12 in a suspension or denial proceeding under this chapter.]
5-13 [(c)] If a criminal charge arising from the same arrest as a
5-14 suspension under this chapter results in an acquittal, the
5-15 suspension under this chapter may not be imposed. If a suspension
5-16 under this chapter has already been imposed, the department shall
5-17 rescind the suspension and remove references to the suspension from
5-18 the computerized driving record of the individual.
5-19 SECTION 4. (a) The change in law made by this Act applies
5-20 only to an offense committed on or after the effective date of this
5-21 Act. For purposes of this section, an offense is committed before
5-22 the effective date of this Act if any element of the offense occurs
5-23 before the effective date.
5-24 (b) An offense committed before the effective date of this
5-25 Act is covered by the law in effect when the offense was committed,
5-26 and the former law is continued in effect for that purpose.
5-27 SECTION 5. This Act takes effect September 1, 1999.
6-1 SECTION 6. The importance of this legislation and the
6-2 crowded condition of the calendars in both houses create an
6-3 emergency and an imperative public necessity that the
6-4 constitutional rule requiring bills to be read on three several
6-5 days in each house be suspended, and this rule is hereby suspended.