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.