SRC-BWC, MKV S.B. 89 77(R) BILL ANALYSIS
Senate Research Center S.B. 89
77R1684 JD-DBy: Nelson
Criminal Justice
2/19/2001
As Filed
DIGEST AND PURPOSE
Currently, federal law requires each state, under the Transportation Equity
Act for the 21st Century (TEA21), to have an open container law and a
repeat offender law for driving while intoxicated (DWI). In order for the
state to comply, TEA-21 must be in effect by certain deadlines, or certain
funds will be transferred to the state's highway safety and other
safety-related programs. Noncompliance with TEA-21, with respect to an
open container law or with respect to repeat offenders for DWI, by the
specified dates results in the state's loss of significant construction
dollars (currently these dollars are transferred to traffic safety
programs). This bill makes provisions for both the Repeat DWI Offender
Program and the Open Container Program as prescribed by federal law,
establishes that it is an offense for the driver or passenger of a motor
vehicle to possess an open alcoholic beverage container while in a public
place, and provides for an affirmative defense to prosecution for certain
people consuming or possessing an open alcoholic beverage. This bill also
provides certain punishments and consequences for repeat DWI offenders. As
proposed, S.B. 89 establishes provisions regarding the civil and criminal
consequences of possessing or consuming an alcoholic beverage in a motor
vehicle.
RULEMAKING AUTHORITY
This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 49.03, Penal Code, to provide that an occupant
of a motor vehicle that is located on a public highway or on the
right-of-way of a public highway, including specified rights-of-way,
commits an offense if the person consumes an alcoholic beverage or
possesses a receptacle in the passenger area containing an alcoholic
beverage that has been opened, its seal broken, or has part of the contents
removed. Provides that it is an affirmative defense to prosecution that
the person consuming the alcoholic beverage or the receptacle containing
the beverage is in the possession of a passenger in the living quarters of
a house coach or house trailer or a passenger in a motor vehicle intended
for the transportation of persons for compensation. Deletes language
referring to the observation of such an offense by a peace officer.
SECTION 2. Amends Chapter 502, Transportation Code, by adding Subchapter I,
as follows:
SUBCHAPTER I. SUSPENSION OF REGISTRATION OF REPEAT DWI OFFENDERS
Section 502.451. SUSPENSION OF REGISTRATION. (a) Defines "offense relating
to the operating of a motor vehicle while intoxicated."
(b) Requires the Department of Public Safety (DPS) to automatically suspend
all vehicle registrations of a person convicted of a second or subsequent
offense relating to the operating of a motor vehicle while intoxicated
committed within five years of the previous offense, or a person whose
driver's license is suspended or revoked under Chapter 521O.
(c) Provides that a suspension of a vehicle registration begins on the
date that the suspension or revocation of the person's driver's license
takes effect and continues until the date on which the period of suspension
terminates or the revoked license is reinstated.
Section 502.452. PROHIBITION AGAINST RENEWAL OR OTHER REGISTRATION.
Prohibits a person whose vehicle registration is suspended under Section
502.451 from renewing the suspended vehicle registration or registering
another vehicle in the person's name before the expiration of the period of
registration suspension.
Section 502.453. OPERATION OF A MOTOR VEHICLE IN VIOLATION OF SUSPENSION;
OFFENSE. (a) Provides that a person commits an offense if the person,
during a period that a suspension of the vehicle registration is in effect,
operates the vehicle on a highway or knowingly permits the vehicle to be
operated on a highway.
(b) Provides that it is an affirmative defense to prosecution under this
section that the person had not received notice of a suspension order
concerning the person's vehicle registration.
(c) Provides that an offense under this section is a misdemeanor punishable
by a fine of not less than $100 or more that $500 and a confinement in
county jail for a term of not less than 72 hours or more than six months.
Section 502.454. NOTICE OF SUSPENSION OF VEHICLE REGISTRATION. (a)
Requires the DPS to give written notice of a vehicle registration
suspension.
(b) Requires the notice to be delivered by personal delivery to the person
or by deposit in the United States mail addressed to the person at the last
address supplied to the Texas Department of Transportation (department) or
DPS by the person.
(c) Provides that notice by mail is presumed to be received on the 10th day
after it is mailed, and authorizes certain proof of the notice to be made
by the certificate of a DPS employee.
(d) Requires a certificate of notice personally delivered by a departmental
employee to specify the name of the person to whom the notice was given and
the time, place, and manner of the delivery of the notice.
Section 502.455. RETURN OF VEHICLE REGISTRATIONS AND LICENSE PLATES TO
DEPARTMENT OF PUBLIC SAFETY. (a) Requires a person notified of a vehicle
registration suspension to send the person's vehicle registration receipts
and license plates for the vehicles to the DPS.
(b) Requires the registration receipts and license plates to be sent no
later than the 10th day after the person receives written notice from DPS.
Section 502.456. FAILURE TO RETURN VEHICLE REGISTRATION AND LICENSE
PLATES; OFFENSE. (a) Sets forth that a person commits an offense if the
person fails or refuses to send to DPS the vehicle registration receipts
and license plates in a timely manner.
(b) Sets forth that an offense under this section is a misdemeanor
punishable by a fine of not less than $100 or more than $500 and
confinement in county jail for a term of not less than 72 hours or more
than six months.
(c) Requires DPS to direct an employee of DPS to obtain and send to DPS the
vehicle registration receipts and license plates of a person who fails to
return them in accordance with Section 502.455.
(d) Authorizes the director of DPS or a person designated by the director
to file a complaint against a person for an offense under Subsection (a).
Section 502.457. TRANSFER OF VEHICLE REGISTRATION PROHIBITED. (a)
Prohibits an owner whose vehicle registration has been suspended under this
subchapter from transferring the registration unless authorized under
Subsection (b) or from registering the motor vehicle in another name to
which the registration applies.
(b) Authorizes DPS to authorize transfer of vehicle registration if the
director determines that the transfer is in good faith and is not to defeat
the purposes of this subchapter.
(c) Provides that this section does not affect the rights of a conditional
vendor or person with security interest in a motor vehicle owned by a
person who is subject to this section if the vendor or secured party is not
the registered owner of the vehicle.
Section 502.458. REINSTATEMENT FEE. (a) Prohibits the reinstatement of a
vehicle registration and the issue of a new registration receipt or license
plates to the person until the person pays DPS a fee of $50.
(b) Provides that the fee imposed by this section is in addition to other
fees imposed by law.
(c) Requires a person to only pay one fee under this section without regard
to the number of registrations and license plates to be reinstated for or
issued to the person in connection with the payment.
SECTION 3. Amends Section 521.251, Transportation Code, by redesignating
existing Subsections (d) and (e) and adding a new Subsection (d), as
follows:
(d) Prohibits an order granting a person an occupational license from
taking affect before the first anniversary of the effective date of the
suspension, if the person's driver's license has been suspended as a result
of a second or subsequent conviction under Section 49.04 (Driving While
Intoxicated), 49.07 (Intoxication Assault), or 49.08 (Intoxication
Manslaughter), Penal Code, committed within five years of the date on which
the most recent offense was committed.
SECTION 4. Amends Section 521.344, Transportation Code, as follows:
Section 521.344. New heading: SUSPENSION FOR OFFENSES INVOLVING
INTOXICATION. (a) Deletes language referring to an offense committed as a
result of the introduction of alcohol into the body, and redefines the
period of a license suspension to be not less than one year rather than 180
days, or more than two years.
(b) Makes conforming changes.
(d) Makes an exception under Section 49.09 (Enhanced Offenses and
Penalties), Penal Code, to the prohibition against revoking the license of
a person during a period of probation if the person is required to complete
an educational program designed to rehabilitate persons who have operated
motor vehicles while intoxicated. Makes a conforming change.
SECTION 5. Amends Section 9 (h), Article 42.12, Code of Criminal
Procedure, to refer to the conditions under which a judge is required to
direct a supervision officer to conduct an evaluation to determine the
appropriateness of and course of conduct for an alcohol or drug
rehabilitation for a defendant. Includes cases involving a second or
subsequent offense committed within five years of the previous offense
involving the operation of a motor vehicle.
SECTION 6. Amends Sections 13 (g) and (k), Article 42.12, Code of Criminal
Procedure, to prohibit a person punished under Section 49.09, Penal Code,
from being punished under Subsection 13 (g). Makes conforming changes.
SECTION 7. Amends Section 16, Article 42.12, Code of Criminal Procedure,
by amending Subsection (b) and by adding Subsection (b-1), as follows:
(b) Makes conforming and nonsubstantive changes.
(b-1) Prohibits the amount of community service work ordered by the judge
from being less than 30 eight-hour days for an offense under Section 49.04,
Penal Code, that is punished under Section 49.09 (a) of that code, and from
being less that 60 eight-hour days for an offense under Section 49.04,
Penal Code, that is punished under Section 49.04 (b) of that code.
SECTION 8. Effective date: September 1, 2001.
Makes application of this Act prospective.