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.