By Dunnam, Hinojosa, Keel, Smith, Wise, H.B. No. 5
et al.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the deterrence of conduct involving the operation of a
1-3 motor vehicle while under the influence of an alcoholic beverage;
1-4 providing a penalty.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. The purpose of this Act is to avoid the imposition
1-7 of sanctions against this state and the loss of federal highway
1-8 construction funds under Section 1405(a), Transportation Equity Act
1-9 for the 21st Century (23 U.S.C. Section 154), as amended, which
1-10 requires states to enact and enforce a law that prohibits the
1-11 possession of an open alcoholic beverage container in the passenger
1-12 area of a motor vehicle that is located on a public highway or the
1-13 right-of-way adjacent to a public highway, and Section 1406(a),
1-14 Transportation Equity Act for the 21st Century Restoration Act (23
1-15 U.S.C. Section 164), as amended, which requires states to enact and
1-16 enforce minimum penalties against repeat intoxicated drivers.
1-17 SECTION 2. Chapter 49, Penal Code, is amended by adding
1-18 Section 49.031 to read as follows:
1-19 Sec. 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR
1-20 VEHICLE. (a) In this section:
1-21 (1) "Open container" means a bottle, can, or other
1-22 receptacle that contains any amount of alcoholic beverage and that
1-23 is open, that has been opened, that has a broken seal, or the
1-24 contents of which are partially removed.
2-1 (2) "Passenger area of a motor vehicle" means the area
2-2 of a motor vehicle designed for the seating of the operator and
2-3 passengers of the vehicle. The term does not include:
2-4 (A) a glove compartment or similar storage
2-5 container that is locked;
2-6 (B) the trunk of a vehicle; or
2-7 (C) the area behind the last upright seat of the
2-8 vehicle, if the vehicle does not have a trunk.
2-9 (3) "Public highway" means the entire width between
2-10 and immediately adjacent to the boundary lines of any public road,
2-11 street, highway, interstate, or other publicly maintained way if
2-12 any part is open for public use for the purpose of motor vehicle
2-13 travel. The term includes the right-of-way of a public highway.
2-14 (b) A person commits an offense if the person knowingly
2-15 possesses an open container in a passenger area of a motor vehicle
2-16 that is located on a public highway, regardless of whether the
2-17 vehicle is being operated or is stopped or parked. Possession by a
2-18 person of one or more open containers in a single criminal episode
2-19 is a single offense.
2-20 (c) It is an exception to the application of Subsection (b)
2-21 that at the time of the offense the defendant was a passenger in:
2-22 (1) the passenger area of a motor vehicle designed,
2-23 maintained, or used primarily for the transportation of persons for
2-24 compensation, including a bus, taxicab, or limousine; or
2-25 (2) the living quarters of a motorized house coach or
2-26 motorized house trailer, including a self-contained camper, a motor
2-27 home, or a recreational vehicle.
3-1 (d) An offense under this section is a Class C misdemeanor.
3-2 (e) A peace officer charging a person with an offense under
3-3 this section, instead of taking the person before a magistrate,
3-4 shall issue to the person a written citation and notice to appear
3-5 that contains the time and place the person must appear before a
3-6 magistrate, the name and address of the person charged, and the
3-7 offense charged. If the person makes a written promise to appear
3-8 before the magistrate by signing in duplicate the citation and
3-9 notice to appear issued by the officer, the officer shall release
3-10 the person.
3-11 SECTION 3. Section 49.09, Penal Code, is amended by adding
3-12 Subsection (g) to read as follows:
3-13 (g) This subsection applies only to a person convicted of a
3-14 second or subsequent offense relating to the operating of a motor
3-15 vehicle while intoxicated committed within five years of the date
3-16 on which the most recent preceding offense was committed. The
3-17 court shall enter an order that requires the defendant to have a
3-18 device installed, on each motor vehicle owned or operated by the
3-19 defendant, that uses a deep-lung breath analysis mechanism to make
3-20 impractical the operation of the motor vehicle if ethyl alcohol is
3-21 detected in the breath of the operator, and that requires that
3-22 before the first anniversary of the ending date of the period of
3-23 license suspension under Section 521.344, Transportation Code, the
3-24 defendant not operate any motor vehicle that is not equipped with
3-25 that device. The court shall require the defendant to obtain the
3-26 device at the defendant's own cost on or before that ending date,
3-27 require the defendant to provide evidence to the court on or before
4-1 that ending date that the device has been installed on each
4-2 appropriate vehicle, and order the device to remain installed on
4-3 each vehicle until the first anniversary of that ending date. If
4-4 the court determines the offender is unable to pay for the device,
4-5 the court may impose a reasonable payment schedule not to extend
4-6 beyond the first anniversary of the date of installation. The
4-7 Department of Public Safety shall approve devices for use under
4-8 this subsection. Section 521.247, Transportation Code, applies to
4-9 the approval of a device under this subsection and the consequences
4-10 of that approval. Failure to comply with an order entered under
4-11 this subsection is punishable by contempt. For the purpose of
4-12 enforcing this subsection, the court that enters an order under
4-13 this subsection retains jurisdiction over the defendant until the
4-14 date on which the device is no longer required to remain installed.
4-15 To the extent of a conflict between this subsection and Section
4-16 13(i), Article 42.12, Code of Criminal Procedure, this subsection
4-17 controls.
4-18 SECTION 4. Section 49.11, Penal Code, is amended to read as
4-19 follows:
4-20 Sec. 49.11. PROOF OF MENTAL STATE UNNECESSARY. (a)
4-21 Notwithstanding Section 6.02(b), proof of a culpable mental state
4-22 is not required for conviction of an offense under this chapter.
4-23 (b) Subsection (a) does not apply to an offense under
4-24 Section 49.031.
4-25 SECTION 5. Section 521.251, Transportation Code, is amended
4-26 by redesignating existing Subsection (d) as Subsection (e) and
4-27 adding a new Subsection (d) to read as follows:
5-1 (d) Notwithstanding any other provision in this section, if
5-2 the person's driver's license has been suspended as a result of a
5-3 second or subsequent conviction under Section 49.04, 49.07, or
5-4 49.08, Penal Code, committed within five years of the date on which
5-5 the most recent preceding offense was committed, an order granting
5-6 the person an occupational license may not take effect before the
5-7 first anniversary of the effective date of the suspension.
5-8 (e) [(d)] For the purposes of this section, "alcohol-related
5-9 or drug-related enforcement contact" has the meaning assigned by
5-10 Section 524.001.
5-11 SECTION 6. The heading to Section 521.344, Transportation
5-12 Code, is amended to read as follows:
5-13 Sec. 521.344. SUSPENSION FOR OFFENSES INVOLVING INTOXICATION
5-14 [RELATED TO USE OF ALCOHOL].
5-15 SECTION 7. Sections 521.344(a), (b), and (d), Transportation
5-16 Code, are amended to read as follows:
5-17 (a) Except as provided by Sections 521.342(b) and 521.345,
5-18 and by Subsections (d)-(i), if a person is convicted of an offense
5-19 under Section 49.04 or 49.07, Penal Code, [that is committed as a
5-20 result of the introduction of alcohol into the body,] the license
5-21 suspension:
5-22 (1) begins on a date set by the court that is not
5-23 earlier than the date of the conviction or later than the 30th day
5-24 after the date of the conviction, as determined by the court; and
5-25 (2) continues for a period set by the court according
5-26 to the following schedule:
5-27 (A) not less than 90 days or more than one year,
6-1 if the person is punished under Section 49.04 or 49.07, Penal Code,
6-2 except that if the person's license is suspended for a second or
6-3 subsequent offense under Section 49.07 committed within five years
6-4 of the date on which the most recent preceding offense was
6-5 committed, the suspension continues for a period of one year; [or]
6-6 (B) not less than 180 days or more than two
6-7 years, if the person is punished under Section 49.09(a) or (b)
6-8 [49.09], Penal Code; or
6-9 (C) not less than one year or more than two
6-10 years, if the person is punished under Section 49.09(a) or (b),
6-11 Penal Code, and is subject to Section 49.09(g) of that code.
6-12 (b) Except as provided by Section 521.342(b), if a person is
6-13 convicted of an offense under Section 49.08, Penal Code, the
6-14 license suspension [begins]:
6-15 (1) begins on a date set by the court that is not
6-16 earlier than the date of the conviction or later than the 30th day
6-17 after the date of the conviction, as determined by the court; and
6-18 (2) continues for a period set by the court of not
6-19 less than 180 days or more than two years, except that if the
6-20 person's license is suspended for a second or subsequent offense
6-21 under Section 49.08, Penal Code, committed within 10 years of the
6-22 date on which the most recent preceding offense was committed, the
6-23 suspension continues for a period set by the court of not less than
6-24 one year or more than two years.
6-25 (d) Except as provided by Subsection (e) and Section
6-26 521.342(b), during a period of probation the department may not
6-27 revoke the person's license if the person is required under Section
7-1 13(h) or (j), Article 42.12, Code of Criminal Procedure, to
7-2 successfully complete an educational program designed to
7-3 rehabilitate persons who have operated motor vehicles while
7-4 intoxicated, unless the person was punished under Section 49.09(a)
7-5 or (b), Penal Code, and was subject to Section 49.09(g) of that
7-6 code. The department may not revoke the license of a person:
7-7 (1) for whom the jury has recommended that the license
7-8 not be revoked under Section 13(g), Article 42.12, Code of Criminal
7-9 Procedure; or
7-10 (2) who is placed under community supervision under
7-11 that article and is required as a condition of community
7-12 supervision to not operate a motor vehicle unless the vehicle is
7-13 equipped with the device described by Section 13(i) of that
7-14 article, unless the person was punished under Section 49.09(a) or
7-15 (b), Penal Code, and was subject to Section 49.09(g) of that code.
7-16 SECTION 8. Section 9(h), Article 42.12, Code of Criminal
7-17 Procedure, is amended to read as follows:
7-18 (h) On a determination by the judge that alcohol or drug
7-19 abuse may have contributed to the commission of the offense, or in
7-20 any case involving a second or subsequent offense under Section
7-21 49.04, Penal Code, committed within five years of the date on which
7-22 the most recent preceding offense was committed, or a second or
7-23 subsequent offense under Section 49.07 or 49.08 of that code that
7-24 involves the operation of a motor vehicle, committed within five
7-25 years of the date on which the most recent preceding offense was
7-26 committed, the judge shall direct a supervision officer approved by
7-27 the community supervision and corrections department or the judge
8-1 or a person, program, or other agency approved by the Texas
8-2 Commission on Alcohol and Drug Abuse, to conduct an evaluation to
8-3 determine the appropriateness of, and a course of conduct necessary
8-4 for, alcohol or drug rehabilitation for a defendant and to report
8-5 that evaluation to the judge. The evaluation shall be made:
8-6 (1) after arrest and before conviction, if requested
8-7 by the defendant;
8-8 (2) after conviction and before sentencing, if the
8-9 judge assesses punishment in the case;
8-10 (3) after sentencing and before the entry of a final
8-11 judgment, if the jury assesses punishment in the case; or
8-12 (4) after community supervision is granted, if the
8-13 evaluation is required as a condition of community supervision
8-14 under Section 13 of this article.
8-15 SECTION 9. Sections 13(a), (g), and (k), Article 42.12, Code
8-16 of Criminal Procedure, are amended to read as follows:
8-17 (a) A judge granting community supervision to a defendant
8-18 convicted of an offense under Chapter 49, Penal Code, shall require
8-19 as a condition of community supervision that the defendant submit
8-20 to:
8-21 (1) not less than three days of confinement in county
8-22 jail if the defendant was punished under Section 49.09(a); not less
8-23 than five days of confinement in county jail if the defendant was
8-24 punished under Section 49.09(a) and was subject to Section
8-25 49.09(g); not less than 10 days of confinement in county jail if
8-26 the defendant was punished under Section 49.09(b) or (c); or not
8-27 less than 30 days of confinement in county jail if the defendant
9-1 was convicted under Section 49.07; and
9-2 (2) an evaluation by a supervision officer or by a
9-3 person, program, or facility approved by the Texas Commission on
9-4 Alcohol and Drug Abuse for the purpose of having the facility
9-5 prescribe and carry out a course of conduct necessary for the
9-6 rehabilitation of the defendant's drug or alcohol dependence
9-7 condition.
9-8 (g) A jury that recommends community supervision for a
9-9 person convicted of an offense under Sections 49.04-49.08, Penal
9-10 Code, may recommend that any driver's license issued to the
9-11 defendant under Chapter 521, Transportation Code, not be suspended.
9-12 This subsection does not apply to a person punished under Section
9-13 49.09(a) or (b), Penal Code, and subject to Section 49.09(g) of
9-14 that code.
9-15 (k) Notwithstanding Sections 521.344(d)-(i), Transportation
9-16 Code, if the judge, under Subsection (h) or (j) of this section,
9-17 permits or requires a defendant punished under Section 49.09, Penal
9-18 Code, to attend an educational program as a condition of community
9-19 supervision, or waives the required attendance for such a program,
9-20 and the defendant has previously been required to attend such a
9-21 program, or the required attendance at the program had been waived,
9-22 the judge nonetheless shall order the suspension of the driver's
9-23 license, permit, or operating privilege of that person for a period
9-24 determined by the judge according to the following schedule:
9-25 (1) not less than 90 days or more than 365 days, if
9-26 the defendant is convicted under Sections 49.04-49.08, Penal Code;
9-27 [or]
10-1 (2) not less than 180 days or more than two years, if
10-2 the defendant is punished under Section 49.09(a) or (b) [49.09],
10-3 Penal Code; or
10-4 (3) not less than one year or more than two years, if
10-5 the person is convicted of a second or subsequent offense under
10-6 Sections 49.04-49.08, Penal Code, committed within five years of
10-7 the date on which the most recent preceding offense was committed.
10-8 SECTION 10. Section 49.03, Penal Code, is repealed.
10-9 SECTION 11. (a) Except as provided by Subsection (b) of
10-10 this section, this Act takes effect September 1, 2001.
10-11 (b) The change in law made by Section 3 of this Act applies
10-12 only to a person convicted of an offense involving the operating of
10-13 a motor vehicle on or after September 1, 2001.
10-14 (c) The change in law made by Section 5 of this Act applies
10-15 only to a person who applies for an occupational driver's license
10-16 on or after September 1, 2001.
10-17 (d) The change in law made by Section 7 of this Act applies
10-18 only to the suspension of the driver's license of a person
10-19 convicted of an offense committed on or after September 1, 2001.
10-20 The suspension of the driver's license of a person convicted of an
10-21 offense that was committed before September 1, 2001, is governed by
10-22 the law in effect on the date the offense was committed, and the
10-23 former law is continued in effect for that purpose.
10-24 (e) The change in law made by Section 8 of this Act applies
10-25 only to an evaluation ordered in relation to an offense committed
10-26 on or after September 1, 2001. An evaluation ordered in relation
10-27 to an offense that was committed before September 1, 2001, is
11-1 governed by the law in effect on the date the offense was
11-2 committed, and the former law is continued in effect for that
11-3 purpose.
11-4 (f) The changes in law made by Section 9 of this Act apply
11-5 only to a person placed on community supervision for an offense
11-6 committed on or after September 1, 2001. A person placed on
11-7 community supervision for an offense that was committed before
11-8 September 1, 2001, is governed by the law in effect on the date the
11-9 offense was committed, and the former law is continued in effect
11-10 for that purpose.
11-11 (g) For the purposes of this section, an offense was
11-12 committed before September 1, 2001, if any element of the offense
11-13 occurred before that date.