77R8571 JD-D                           
         By Dunnam, Hinojosa, Keel, Smith, Wise                   H.B. No. 5
         Substitute the following for H.B. No. 5:
         By Dunnam                                            C.S.H.B. No. 5
                                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.
2-18           (c)  It is an exception to the application of Subsection (b)
2-19     that at the time of the offense the defendant was a passenger in:
2-20                 (1)  the passenger area of a motor vehicle designed,
2-21     maintained, or used primarily for the transportation of persons for
2-22     compensation, including a bus, taxicab, or limousine; or
2-23                 (2)  the living quarters of a motorized house coach or
2-24     motorized house trailer, including a self-contained camper, a motor
2-25     home, or a recreational vehicle.
2-26           (d)  An offense under this section is a Class C misdemeanor.
2-27           (e)  The enforcement of this section is suspended on the 30th
 3-1     day after the date the attorney general files a certificate with
 3-2     the secretary of state for publication in the Texas Register,
 3-3     certifying the finding by the attorney general that the enforcement
 3-4     of 23 U.S.C. Section 154, to the extent that section imposes
 3-5     sanctions against a state involving the transfer of federal highway
 3-6     construction funds for failure to enact and enforce a law that
 3-7     prohibits the possession of an open alcoholic beverage container
 3-8     and the consumption of any alcoholic beverage in the passenger area
 3-9     of any motor vehicle located on a public highway or the
3-10     right-of-way of a public highway, is suspended or  enjoined.  The
3-11     period of suspension continues until the 30th day after the date
3-12     the attorney general files a subsequent certificate with the
3-13     secretary of state certifying the finding by the attorney general
3-14     that enforcement of 23 U.S.C. Section 154 is no longer suspended or
3-15     enjoined.
3-16           (f)  This section expires on the 30th day after the date the
3-17     attorney general files a certificate with the secretary of state
3-18     for publication in the Texas Register, certifying the finding by
3-19     the attorney general that:
3-20                 (1)  23 U.S.C. Section 154, to the extent that section
3-21     imposes sanctions against a state involving the transfer of federal
3-22     highway construction funds for failure to enact and enforce a law
3-23     that prohibits the possession of an open alcoholic beverage
3-24     container and the consumption of any alcoholic beverage in the
3-25     passenger area of any motor vehicle located on a public highway or
3-26     the right-of-way of a public highway, is repealed or has expired;
3-27                 (2)  a United States court of appeals or the United
 4-1     States Supreme Court has entered a final order holding that 23
 4-2     U.S.C. Section 154, or a federal regulation implementing that
 4-3     section, is unconstitutional or otherwise invalid, in whole or in
 4-4     part; or
 4-5                 (3)  a subsequently enacted act of congress has the
 4-6     effect of abrogating the sanctions required by 23 U.S.C. Section
 4-7     154.
 4-8           SECTION 3. Section 49.09, Penal Code, is amended by adding
 4-9     Subsection (g) to read as follows:
4-10           (g)  This subsection applies only to a person convicted of a
4-11     second or subsequent offense relating to the operating of a motor
4-12     vehicle while intoxicated committed within five years of the date
4-13     on which the most recent preceding offense was committed.  The
4-14     court shall enter an order that requires the defendant to have a
4-15     device installed, on each motor vehicle owned or operated by the
4-16     defendant, that uses a deep-lung breath analysis mechanism to make
4-17     impractical the operation of the motor vehicle if ethyl alcohol is
4-18     detected in the breath of the operator, and that requires that
4-19     before the first anniversary of the ending date of the period of
4-20     license suspension under Section 521.344, Transportation Code, the
4-21     defendant not operate any motor vehicle that is not equipped with
4-22     that device.  The court shall require the defendant to obtain the
4-23     device at the defendant's own cost on or before that ending date,
4-24     require the defendant to provide evidence to the court on or before
4-25     that ending date that the device has been installed on each
4-26     appropriate vehicle, and order the device to remain installed on
4-27     each vehicle until the first anniversary of that ending date.  If
 5-1     the court determines the offender is unable to pay for the device,
 5-2     the court may impose a reasonable payment schedule not to extend
 5-3     beyond the first anniversary of the date of installation.  The
 5-4     Department of Public Safety shall approve devices for use under
 5-5     this subsection.  Section 521.247, Transportation Code, applies to
 5-6     the approval of a device under this subsection and the consequences
 5-7     of that approval. Failure to comply with an order entered under
 5-8     this subsection is punishable by contempt.  For the purpose of
 5-9     enforcing this subsection, the court that enters an order under
5-10     this subsection retains jurisdiction over the defendant until the
5-11     date on which the device is no longer required to remain installed.
5-12     To the extent of a conflict between this subsection and Section
5-13     13(i), Article 42.12, Code of Criminal Procedure, this subsection
5-14     controls.
5-15           SECTION 4. Section 521.251, Transportation Code, is amended
5-16     by redesignating existing Subsection (d) as Subsection (e) and
5-17     adding a new Subsection (d) to read as follows:
5-18           (d)  Notwithstanding any other provision in this section, if
5-19     the person's driver's license has been suspended as a result of a
5-20     second or subsequent conviction under Section 49.04, 49.07, or
5-21     49.08, Penal Code, committed within five years of the date on which
5-22     the most recent preceding offense was committed, an order granting
5-23     the person an occupational license may not take effect before the
5-24     first anniversary of the effective date of the suspension.
5-25           (e) [(d)]  For the purposes of this section, "alcohol-related
5-26     or drug-related enforcement contact" has the meaning assigned by
5-27     Section 524.001.
 6-1           SECTION 5.  The heading to Section 521.344, Transportation
 6-2     Code, is amended to read as follows:
 6-3           Sec. 521.344.  SUSPENSION FOR OFFENSES INVOLVING INTOXICATION
 6-4     [RELATED TO USE OF ALCOHOL].
 6-5           SECTION 6.  Sections 521.344(a), (b), and (d), Transportation
 6-6     Code, are amended to read as follows:
 6-7           (a)  Except as provided by Sections 521.342(b) and 521.345,
 6-8     and by Subsections (d)-(i), if a person is convicted of an offense
 6-9     under Section 49.04 or 49.07, Penal Code, [that is committed as a
6-10     result of the introduction of alcohol into the body,] the license
6-11     suspension:
6-12                 (1)  begins on a date set by the court that is not
6-13     earlier than the date of the conviction or later than the 30th day
6-14     after the date of the conviction, as determined by the court; and
6-15                 (2)  continues for a period set by the court according
6-16     to the following schedule:
6-17                       (A)  not less than 90 days or more than one year,
6-18     if the person is punished under Section 49.04 or 49.07, Penal Code,
6-19     except that if the person's license is suspended for a second or
6-20     subsequent offense under Section 49.07 committed within five years
6-21     of the date on which the most recent preceding offense was
6-22     committed, the suspension continues for a period of one year; [or]
6-23                       (B)  not less than 180 days or more than two
6-24     years, if the person is punished under Section 49.09(a) or (b)
6-25     [49.09], Penal Code; or
6-26                       (C)  not less than one year or more than two
6-27     years, if the person is punished under Section 49.09(a) or (b),
 7-1     Penal Code, and is subject to Section 49.09(g) of that code.
 7-2           (b)  Except as provided by Section 521.342(b), if a person is
 7-3     convicted of an offense under Section 49.08, Penal Code, the
 7-4     license suspension [begins]:
 7-5                 (1)  begins on a date set by the court that is not
 7-6     earlier than the date of the conviction or later than the 30th day
 7-7     after the date of the conviction, as determined by the court; and
 7-8                 (2)  continues for a period set by the court of not
 7-9     less than 180 days or more than two years, except that if the
7-10     person's license is suspended for a second or subsequent offense
7-11     under Section 49.08, Penal Code, committed within five years of the
7-12     date on which the most recent preceding offense was committed, the
7-13     suspension continues for a period set by the court of not less than
7-14     one year or more than two years.
7-15           (d)  Except as provided by Subsection (e) and Section
7-16     521.342(b), during a period of probation the department may not
7-17     revoke the person's license if the person is required under Section
7-18     13(h) or (j), Article 42.12, Code of Criminal Procedure, to
7-19     successfully complete an educational program designed to
7-20     rehabilitate persons who have operated motor vehicles while
7-21     intoxicated, unless the person was punished under Section 49.09(a)
7-22     or (b), Penal Code, and was subject to Section 49.09(g) of that
7-23     code. The department may not revoke the license of a person:
7-24                 (1)  for whom the jury has recommended that the license
7-25     not be revoked under Section 13(g), Article 42.12, Code of Criminal
7-26     Procedure; or
7-27                 (2)  who is placed under community supervision under
 8-1     that article and is required as a condition of community
 8-2     supervision to not operate a motor vehicle unless the vehicle is
 8-3     equipped with the device described by Section 13(i) of that
 8-4     article, unless the person was punished under Section 49.09(a) or
 8-5     (b), Penal Code, and was subject to Section 49.09(g) of that code.
 8-6           SECTION 7.  Section 9(h), Article 42.12, Code of Criminal
 8-7     Procedure, is amended to read as follows:
 8-8           (h)  On a determination by the judge that alcohol or drug
 8-9     abuse may have contributed to the commission of the offense, or in
8-10     any case involving a second or subsequent offense under Section
8-11     49.04, Penal Code, committed within five years of the date on which
8-12     the most recent preceding offense was committed, or a second or
8-13     subsequent offense under Section 49.07 or 49.08 of that code that
8-14     involves the operation of a motor vehicle, committed within five
8-15     years of the date on which the most recent preceding offense was
8-16     committed, the judge shall direct a supervision officer approved by
8-17     the community supervision and corrections department or the judge
8-18     or a person, program, or other agency approved by the Texas
8-19     Commission on Alcohol and Drug Abuse, to conduct an evaluation to
8-20     determine the appropriateness of, and a course of conduct necessary
8-21     for, alcohol or drug rehabilitation for a defendant and to report
8-22     that evaluation to the judge. The evaluation shall be made:
8-23                 (1)  after arrest and before conviction, if requested
8-24     by the defendant;
8-25                 (2)  after conviction and before sentencing, if the
8-26     judge assesses punishment in the case;
8-27                 (3)  after sentencing and before the entry of a final
 9-1     judgment, if the jury assesses punishment in the case; or
 9-2                 (4)  after community supervision is granted, if the
 9-3     evaluation is required as a condition of community supervision
 9-4     under Section 13 of this article.
 9-5           SECTION 8.  Sections 13(a), (g), and (k), Article 42.12, Code
 9-6     of Criminal Procedure, are amended to read as follows:
 9-7           (a)  A judge granting community supervision to a defendant
 9-8     convicted of an offense under Chapter 49, Penal Code, shall require
 9-9     as a condition of community supervision that the defendant submit
9-10     to:
9-11                 (1)  not less than three days of confinement in county
9-12     jail if the defendant was punished under Section 49.09(a); not less
9-13     than five days of confinement in county jail if the defendant was
9-14     punished under Section 49.09(a) and was subject to Section
9-15     49.09(g); not less than 10 days of confinement in county jail if
9-16     the defendant was punished under Section 49.09(b) or (c); or not
9-17     less than 30 days of confinement in county jail if the defendant
9-18     was convicted under Section 49.07; and
9-19                 (2)  an evaluation by a supervision officer or by a
9-20     person, program, or facility approved by the Texas Commission on
9-21     Alcohol and Drug Abuse for the purpose of having the facility
9-22     prescribe and carry out a course of conduct necessary for the
9-23     rehabilitation of the defendant's drug or alcohol dependence
9-24     condition.
9-25           (g)  A jury that recommends community supervision for a
9-26     person convicted of an offense under Sections 49.04-49.08, Penal
9-27     Code, may recommend that any driver's license issued to the
 10-1    defendant under Chapter 521, Transportation Code, not be suspended.
 10-2    This subsection does not apply to a person punished under Section
 10-3    49.09(a) or (b), Penal Code, and subject to Section 49.09(g) of
 10-4    that code.
 10-5          (k)  Notwithstanding Sections 521.344(d)-(i), Transportation
 10-6    Code, if the judge, under Subsection (h) or (j) of this section,
 10-7    permits or requires a defendant punished under Section 49.09, Penal
 10-8    Code, to attend an educational program as a condition of community
 10-9    supervision, or waives the required attendance for such a program,
10-10    and the defendant has previously been required to attend such a
10-11    program, or the required attendance at the program had been waived,
10-12    the judge nonetheless shall order the suspension of the driver's
10-13    license, permit, or operating privilege of that person for a period
10-14    determined by the judge according to the following schedule:
10-15                (1)  not less than 90 days or more than 365 days, if
10-16    the defendant is convicted under Sections 49.04-49.08, Penal Code;
10-17    [or]
10-18                (2)  not less than 180 days or more than two years, if
10-19    the defendant is punished under Section 49.09(a) or (b) [49.09],
10-20    Penal Code; or
10-21                (3)  not less than one year or more than two years, if
10-22    the person is convicted of a second or subsequent offense under
10-23    Sections 49.04-49.08, Penal Code, committed within five years of
10-24    the date on which the most recent preceding offense was committed.
10-25          SECTION 9.  (a)  Except as provided by Subsection (b) of this
10-26    section, this Act takes effect September 1, 2001.
10-27          (b)  If, before September 1, 2001, the attorney general files
 11-1    with the secretary of state a certificate certifying the finding by
 11-2    the attorney general of a fact described by Section 49.031(e) or
 11-3    (f), Penal Code, as added by this Act, Section 2 of this Act does
 11-4    not take effect until the 30th day after the date the attorney
 11-5    general files a subsequent certificate with the secretary of state
 11-6    certifying the finding by the attorney general that none of the
 11-7    facts described by Section 49.031(e) or (f) exist.
 11-8          (c)  The change in law made by Section 3 of this Act applies
 11-9    only to a person convicted of an offense involving the operating of
11-10    a motor vehicle on or after September 1, 2001.
11-11          (d)  The change in law made by Section 4 of this Act applies
11-12    only to a person who applies for an occupational driver's license
11-13    on or after September 1, 2001.
11-14          (e)  The change in law made by Section 6 of this Act applies
11-15    only to the suspension of the driver's license of a person
11-16    convicted of an offense committed on or after September 1, 2001.
11-17    The suspension of the driver's license of a person convicted of an
11-18    offense that was committed before September 1, 2001, is governed by
11-19    the law in effect on the date the offense was committed, and the
11-20    former law is continued in effect for that purpose.
11-21          (f)  The change in law made by Section 7 of this Act applies
11-22    only to an evaluation ordered in relation to an offense  committed
11-23    on or after September 1, 2001.  An evaluation ordered in relation
11-24    to an offense that was committed before September 1, 2001, is
11-25    governed by the law in effect on the date the offense was
11-26    committed, and the former law is continued in effect for that
11-27    purpose.
 12-1          (g)  The changes in law made by Section 8 of this Act apply
 12-2    only to a person placed on community supervision for an offense
 12-3    committed on or after September 1, 2001.  A person placed on
 12-4    community supervision for an offense that was committed before
 12-5    September 1, 2001, is governed by the law in effect on the date the
 12-6    offense was committed, and the former law is continued in effect
 12-7    for that purpose.
 12-8          (h)  For the purposes of this section, an offense was
 12-9    committed before September 1, 2001, if any element of the offense
12-10    occurred before that date.