By Dunnam H.B. No. 3489
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the prosecution of certain intoxication offenses and
1-3 the criminal and civil consequences of committing those offenses.
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 and Section 49.091:
2-1 (1) "Offense relating to the operating of a motor
2-2 vehicle while intoxicated" means:
2-3 (A) an offense under Section 49.04;
2-4 (B) an offense under Section 49.07 or 49.08, if
2-5 the vehicle operated was a motor vehicle;
2-6 (C) an offense under Article 6701l-1, Revised
2-7 Statutes, as that law existed before September 1, 1994;
2-8 (D) an offense under Article 6701l-2, Revised
2-9 Statutes, as that law existed before January 1, 1984;
2-10 (E) an offense under Section 19.05(a)(2), as
2-11 that law existed before September 1, 1994, if the vehicle operated
2-12 was a motor vehicle; or
2-13 (F) an offense under the laws of another state
2-14 that prohibit the operation of a motor vehicle while intoxicated.
2-15 (2) "Offense of operating an aircraft while
2-16 intoxicated" means:
2-17 (A) an offense under Section 49.05;
2-18 (B) an offense under Section 49.07 or 49.08, if
2-19 the vehicle operated was an aircraft;
2-20 (C) an offense under Section 1, Chapter 46, Acts
2-21 of the 58th Legislature, Regular Session, 1963 (Article 46f-3,
2-22 Vernon's Texas Civil Statutes), as that law existed before
2-23 September 1, 1994;
2-24 (D) an offense under Section 19.05(a)(2), as
2-25 that law existed before September 1, 1994, if the vehicle operated
3-1 was an aircraft; or
3-2 (E) an offense under the laws of another state
3-3 that prohibit the operation of an aircraft while intoxicated.
3-4 (3) "Offense of operating a watercraft while
3-5 intoxicated" means:
3-6 (A) an offense under Section 49.06;
3-7 (B) an offense under Section 49.07 or 49.08, if
3-8 the vehicle operated was a watercraft;
3-9 (C) an offense under Section 31.097, Parks and
3-10 Wildlife Code, as that law existed before September 1, 1994;
3-11 (D) an offense under Section 19.05(a)(2), as
3-12 that law existed before September 1, 1994, if the vehicle operated
3-13 was a watercraft; or
3-14 (E) an offense under the laws of another state
3-15 that prohibit the operation of a watercraft while intoxicated.
3-16 (c) [(d)] For the purposes of this section and Section
3-17 49.091, a conviction for an offense under Section 49.04, 49.05,
3-18 49.06, 49.07, or 49.08 that occurs on or after September 1, 1994,
3-19 is a final conviction, whether the sentence for the conviction is
3-20 imposed or probated.
3-21 (d) [(e)] A conviction may not be used for purposes of
3-22 enhancement under this section if:
3-23 (1) the conviction was a final conviction under
3-24 Subsection (c) [(d)] and was for an offense committed more than 10
3-25 years before the offense for which the person is being tried was
4-1 committed; and
4-2 (2) the person has not been convicted of an offense
4-3 under Section 49.04, 49.05, 49.06, 49.07, or 49.08 or any offense
4-4 related to operating a motor vehicle while intoxicated committed
4-5 within 10 years before the date on which the offense for which the
4-6 person is being tried was committed.
4-7 (e) [(f)] A conviction may be used for purposes of
4-8 enhancement under this section or enhancement under Subchapter D,
4-9 Chapter 12, but not under both this section and Subchapter D.
4-10 SECTION 2. Chapter 49, Penal Code, is amended by adding
4-11 Section 49.091 to read as follows:
4-12 Sec. 49.091. FELONY PUNISHMENT FOR CERTAIN REPEAT OFFENDERS.
4-13 (a) A person commits an offense if the person:
4-14 (1) commits an offense under Section 49.04, 49.05, or
4-15 49.06; and
4-16 (2) has previously been convicted two times of an
4-17 offense relating to the operating of a motor vehicle while
4-18 intoxicated, an offense of operating an aircraft while intoxicated,
4-19 or an offense of operating a watercraft while intoxicated.
4-20 (b) An offense under this section is a felony of the third
4-21 degree.
4-22 SECTION 3. Chapter 38, Code of Criminal Procedure, is
4-23 amended by adding Article 38.39 to read as follows:
4-24 Art. 38.39. DWI VIDEOTAPES. (a) A person arrested for an
4-25 offense under Section 49.04, Penal Code, must be videotaped if the
5-1 county in which the person is arrested is required to maintain
5-2 videotaping equipment.
5-3 (b) Each county with a population of 25,000 or more shall
5-4 purchase and maintain electronic devices capable of visually
5-5 recording a person arrested in the county for an offense under
5-6 Section 49.04, Penal Code.
5-7 (c) A videotape made under this article must be maintained
5-8 until the final disposition of any proceeding against the defendant
5-9 relating to the arrest and must be made available to any attorney
5-10 representing the defendant during the period it is maintained.
5-11 (d) If a videotape of a defendant is not made as required by
5-12 this article, the results of an analysis of the person's breath or
5-13 blood is inadmissible in a subsequent proceeding.
5-14 SECTION 4. Section 724.048, Transportation Code, is amended
5-15 to read as follows:
5-16 Sec. 724.048. RELATIONSHIP OF ADMINISTRATIVE PROCEEDING TO
5-17 CRIMINAL PROCEEDING. [(a) The determination of the department or
5-18 administrative law judge:]
5-19 [(1) is a civil matter;]
5-20 [(2) is independent of and is not an estoppel as to
5-21 any matter in issue in an adjudication of a criminal charge arising
5-22 from the occurrence that is the basis for the suspension or denial;
5-23 and]
5-24 [(3) does not preclude litigation of the same or
5-25 similar facts in a criminal prosecution.]
6-1 [(b) Except as provided by Subsection (c), the disposition
6-2 of a criminal charge does not affect a license suspension or denial
6-3 under this chapter and is not an estoppel as to any matter in issue
6-4 in a suspension or denial proceeding under this chapter.]
6-5 [(c)] If a criminal charge arising from the same arrest as a
6-6 suspension under this chapter results in an acquittal, the
6-7 suspension under this chapter may not be imposed. If a suspension
6-8 under this chapter has already been imposed, the department shall
6-9 rescind the suspension and remove references to the suspension from
6-10 the computerized driving record of the individual.
6-11 SECTION 5. (a) The change in law made by this Act applies
6-12 only to an offense committed on or after the effective date of this
6-13 Act. For purposes of this section, an offense is committed before
6-14 the effective date of this Act if any element of the offense occurs
6-15 before the effective date.
6-16 (b) An offense committed before the effective date of this
6-17 Act is covered by the law in effect when the offense was committed,
6-18 and the former law is continued in effect for that purpose.
6-19 SECTION 6. This Act takes effect September 1, 1999.
6-20 SECTION 7. The importance of this legislation and the
6-21 crowded condition of the calendars in both houses create an
6-22 emergency and an imperative public necessity that the
6-23 constitutional rule requiring bills to be read on three several
6-24 days in each house be suspended, and this rule is hereby suspended.