By Nelson S.B. No. 128
Substitute the following for S.B. No. 128:
By Hinojosa C.S.S.B. No. 128
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
2-1 Subsection (b) that the vehicle was not owned or being leased by
2-2 the defendant and the defendant did not know that the open
2-3 container of alcoholic beverage was in the vehicle or that the
2-4 person consuming the alcoholic beverage is, or that the receptacle
2-5 containing the alcoholic beverage is in the possession of:
2-6 (1) a passenger in the living quarters of a house
2-7 coach or house trailer; or
2-8 (2) a passenger in a motor vehicle designed,
2-9 maintained, or used primarily for the transportation of persons for
2-10 compensation.
2-11 (d) An offense under this section is a Class C misdemeanor
2-12 punishable by a fine not to exceed $50, including all court costs.
2-13 SECTION 2. The section heading to and Subsections (a), (b),
2-14 and (d), Section 521.344, Transportation Code, are amended to read
2-15 as follows:
2-16 Sec. 521.344. SUSPENSION FOR OFFENSES INVOLVING INTOXICATION
2-17 [RELATED TO USE OF ALCOHOL]. (a) Except as provided by Sections
2-18 521.342(b) and 521.345, and by Subsections (d)-(i), if a person is
2-19 convicted of an offense under Section 49.04 or 49.07, Penal Code,
2-20 [that is committed as a result of the introduction of alcohol into
2-21 the body,] the license suspension:
2-22 (1) begins on a date set by the court that is not
2-23 earlier than the date of the conviction or later than the 30th day
2-24 after the date of the conviction, as determined by the court; and
2-25 (2) continues for a period set by the court according
2-26 to the following schedule:
2-27 (A) not less than 90 days or more than one year
3-1 if the person is punished under Section 49.04 or 49.07, Penal Code;
3-2 or
3-3 (B) not less than one year [180 days] or more
3-4 than two years, if the person is punished under Section 49.09,
3-5 Penal Code.
3-6 (b) Except as provided by Section 521.342(b), if a person is
3-7 convicted of an offense under Section 49.08, Penal Code, the
3-8 license suspension [begins]:
3-9 (1) begins on a date set by the court that is not
3-10 earlier than the date of the conviction or later than the 30th day
3-11 after the date of the conviction, as determined by the court; and
3-12 (2) continues for a period set by the court of not
3-13 less than one year [180 days] or more than two years.
3-14 (d) Except as provided by Subsection (e) and Section
3-15 521.342(b), during a period of probation the department may not
3-16 revoke the person's license if the person is required under Section
3-17 13(h) or (j), Article 42.12, Code of Criminal Procedure, to
3-18 successfully complete an educational program designed to
3-19 rehabilitate persons who have operated motor vehicles while
3-20 intoxicated, unless the person was punished under Section 49.09,
3-21 Penal Code. The department may not revoke the license of a person:
3-22 (1) for whom the jury has recommended that the license
3-23 not be revoked under Section 13(g), Article 42.12, Code of Criminal
3-24 Procedure; or
3-25 (2) who is placed under community supervision under
3-26 that article and is required as a condition of community
3-27 supervision to not operate a motor vehicle unless the vehicle is
4-1 equipped with the device described by Section 13(i) of that
4-2 article, unless the person was punished under Section 49.09, Penal
4-3 Code.
4-4 SECTION 3. Section 724.048, Transportation Code, is amended
4-5 to read as follows:
4-6 Sec. 724.048. RELATIONSHIP OF ADMINISTRATIVE PROCEEDING TO
4-7 CRIMINAL PROCEEDING. [(a) The determination of the department or
4-8 administrative law judge:]
4-9 [(1) is a civil matter;]
4-10 [(2) is independent of and is not an estoppel as to
4-11 any matter in issue in an adjudication of a criminal charge arising
4-12 from the occurrence that is the basis for the suspension or denial;
4-13 and]
4-14 [(3) does not preclude litigation of the same or
4-15 similar facts in a criminal prosecution.]
4-16 [(b) Except as provided by Subsection (c), the disposition
4-17 of a criminal charge does not affect a license suspension or denial
4-18 under this chapter and is not an estoppel as to any matter in
4-19 issue in a suspension or denial proceeding under this chapter.]
4-20 [(c)] If a criminal charge arising from the same arrest as a
4-21 suspension under this chapter results in an acquittal, the
4-22 suspension under this chapter may not be imposed. If a suspension
4-23 under this chapter has already been imposed, the department shall
4-24 rescind the suspension and remove references to the suspension from
4-25 the computerized driving record of the individual.
4-26 SECTION 4. Section 9(h), Article 42.12, Code of Criminal
4-27 Procedure, is amended to read as follows:
5-1 (h) On a determination by the judge that alcohol or drug
5-2 abuse may have contributed to the commission of the offense, or in
5-3 any case involving a second or subsequent offense under Section
5-4 49.04, Penal Code, or a second or subsequent offense under Section
5-5 49.07 or 49.08 of that code that involves the operation of a motor
5-6 vehicle, the judge shall direct a supervision officer approved by
5-7 the community supervision and corrections department or the judge
5-8 or a person, program, or other agency approved by the Texas
5-9 Commission on Alcohol and Drug Abuse, to conduct an evaluation to
5-10 determine the appropriateness of, and a course of conduct necessary
5-11 for, alcohol or drug rehabilitation for a defendant and to report
5-12 that evaluation to the judge. The evaluation shall be made:
5-13 (1) after arrest and before conviction, if requested
5-14 by the defendant;
5-15 (2) after conviction and before sentencing, if the
5-16 judge assesses punishment in the case;
5-17 (3) after sentencing and before the entry of a final
5-18 judgment, if the jury assesses punishment in the case; or
5-19 (4) after community supervision is granted, if the
5-20 evaluation is required as a condition of community supervision
5-21 under Section 13 of this article.
5-22 SECTION 5. Sections 13(g) and (k), Article 42.12, Code of
5-23 Criminal Procedure, are amended to read as follows:
5-24 (g) A jury that recommends community supervision for a
5-25 person convicted of an offense under Sections 49.04-49.08, Penal
5-26 Code, may recommend that any driver's license issued to the
5-27 defendant under Chapter 173, Acts of the 47th Legislature, Regular
6-1 Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes), not
6-2 be suspended. This subsection does not apply to a person punished
6-3 under Section 49.09, Penal Code.
6-4 (k) Notwithstanding Section 24(g), Chapter 173, Acts of the
6-5 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
6-6 Texas Civil Statutes), if the judge, under Subsection (h) or (j) of
6-7 this section, permits or requires a defendant punished under
6-8 Section 49.09, Penal Code, to attend an educational program as a
6-9 condition of community supervision, or waives the required
6-10 attendance for such a program, and the defendant has previously
6-11 been required to attend such a program, or the required attendance
6-12 at the program had been waived, the judge nonetheless shall order
6-13 the suspension of the driver's license, permit, or operating
6-14 privilege of that person for a period determined by the judge
6-15 according to the following schedule:
6-16 (1) not less than 90 days or more than 365 days, if
6-17 the defendant is convicted under Sections 49.04-49.08, Penal Code;
6-18 or
6-19 (2) not less than one year [180 days] or more than two
6-20 years, if the defendant is punished under Section 49.09, Penal
6-21 Code.
6-22 SECTION 6. Section 16, Article 42.12, Code of Criminal
6-23 Procedure, is amended by amending Subsection (b) and adding
6-24 Subsection (b-1) to read as follows:
6-25 (b) Except as provided by Subsection (b-1), the [The] amount
6-26 of community service work ordered by the judge:
6-27 (1) may not exceed 1,000 hours and may not be less
7-1 than 320 hours for an offense classified as a first degree felony;
7-2 (2) may not exceed 800 hours and may not be less than
7-3 240 hours for an offense classified as a second degree felony;
7-4 (3) may not exceed 600 hours and may not be less than
7-5 160 hours for an offense classified as a third degree felony;
7-6 (4) may not exceed 400 hours and may not be less than
7-7 120 hours for an offense classified as a state jail felony;
7-8 (5) may not exceed 200 hours and may not be less than
7-9 80 hours for an offense classified as a Class A misdemeanor or for
7-10 any other misdemeanor for which the maximum permissible
7-11 confinement, if any, exceeds six months or the maximum permissible
7-12 fine, if any, exceeds $4,000; and
7-13 (6) may not exceed 100 hours and may not be less than
7-14 24 hours for an offense classified as a Class B misdemeanor or for
7-15 any other misdemeanor for which the maximum permissible
7-16 confinement, if any, does not exceed six months and the maximum
7-17 permissible fine, if any, does not exceed $4,000.
7-18 (b-1) The amount of community service work ordered by the
7-19 judge:
7-20 (1) may not be less than 30 eight-hour days for an
7-21 offense under Section 49.04, Penal Code, that is punished under
7-22 Section 49.09(a) of that code; and
7-23 (2) may not be less than 60 eight-hour days for an
7-24 offense under Section 49.04, Penal Code, that is punished under
7-25 Section 49.09(b) of that code.
7-26 SECTION 7. (a) This Act takes effect September 1, 1999.
7-27 (b) The change in law made by Section 1 of this Act applies
8-1 only to an offense committed on or after September 1, 1999. An
8-2 offense that was committed before September 1, 1999, is governed by
8-3 the law in effect on the date the offense was committed, and the
8-4 former law is continued in effect for that purpose.
8-5 (c) The change in law made by Section 2 of this Act applies
8-6 only to the suspension of the driver's license of a person
8-7 convicted of an offense committed on or after September 1, 1999.
8-8 The suspension of the driver's license of a person convicted of an
8-9 offense that was committed before September 1, 1999, is governed by
8-10 the law in effect on the date that the offense was committed, and
8-11 the former law is continued in effect for that purpose.
8-12 (d) The change in law made by Section 4 of this Act applies
8-13 only to an evaluation ordered in relation to an offense committed
8-14 on or after September 1, 1999. An evaluation ordered in relation
8-15 to an offense that was committed before September 1, 1999, is
8-16 governed by the law in effect on the date that the offense was
8-17 committed, and the former law is continued in effect for that
8-18 purpose.
8-19 (e) The changes in law made by Sections 5 and 6 of this Act
8-20 apply only to a person placed on community supervision or assigned
8-21 to community service for an offense committed on or after September
8-22 1, 1999. A person placed on community supervision or assigned to
8-23 community service for an offense that was committed before
8-24 September 1, 1999, is governed by the law in effect on the date
8-25 that the offense was committed, and the former law is continued in
8-26 effect for that purpose.
8-27 (f) For the purposes of this section, an offense was
9-1 committed before September 1, 1999, if any element of the offense
9-2 occurred before that date.
9-3 SECTION 8. The importance of this legislation and the
9-4 crowded condition of the calendars in both houses create an
9-5 emergency and an imperative public necessity that the
9-6 constitutional rule requiring bills to be read on three several
9-7 days in each house be suspended, and this rule is hereby suspended.