By Dunnam H.B. No. 5
77R6908 JD-D
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) if the vehicle does not have a trunk:
2-8 (i) the area behind the last upright seat
2-9 of the vehicle; or
2-10 (ii) an area not normally occupied by the
2-11 operator or passengers.
2-12 (3) "Public highway" means the entire width between
2-13 and immediately adjacent to the boundary lines of any public road,
2-14 street, highway, interstate, or other publicly maintained way if
2-15 any part is open for public use for the purpose of motor vehicle
2-16 travel. The term includes the right-of-way of a public highway.
2-17 (b) A person commits an offense if the person possesses an
2-18 open container in a passenger area of a motor vehicle that is
2-19 located on a public highway, regardless of whether the vehicle is
2-20 being operated or is stopped or parked.
2-21 (c) It is an exception to the application of Subsection (b)
2-22 that at the time of the offense the defendant:
2-23 (1) was in the passenger area of a motor vehicle
2-24 designed, maintained, or used primarily for the transportation of
2-25 persons for compensation, including a bus, taxicab, or limousine;
2-26 (2) was in the living quarters of a motorized house
2-27 coach or motorized house trailer, including a self-contained
3-1 camper, a motor home, or a recreational vehicle; or
3-2 (3) did not have knowledge of the open container in
3-3 the passenger area and could not access that open container.
3-4 (d) An offense under this section is a Class C misdemeanor.
3-5 (e) The enforcement of this section is suspended on the 30th
3-6 day after the date the attorney general files a certificate with
3-7 the secretary of state for publication in the Texas Register,
3-8 certifying the finding by the attorney general that the enforcement
3-9 of 23 U.S.C. Section 154, to the extent that section imposes
3-10 sanctions against a state involving the transfer of federal highway
3-11 construction funds for failure to enact and enforce a law that
3-12 prohibits the possession of an open alcoholic beverage container
3-13 and the consumption of any alcoholic beverage in the passenger area
3-14 of any motor vehicle located on a public highway or the
3-15 right-of-way of a public highway, is suspended or enjoined. The
3-16 period of suspension continues until the 30th day after the date
3-17 the attorney general files a subsequent certificate with the
3-18 secretary of state certifying the finding by the attorney general
3-19 that enforcement of 23 U.S.C. Section 154 is no longer suspended or
3-20 enjoined.
3-21 (f) This section expires on the 30th day after the date the
3-22 attorney general files a certificate with the secretary of state
3-23 for publication in the Texas Register, certifying the finding by
3-24 the attorney general that:
3-25 (1) 23 U.S.C. Section 154, to the extent that section
3-26 imposes sanctions against a state involving the transfer of federal
3-27 highway construction funds for failure to enact and enforce a law
4-1 that prohibits the possession of an open alcoholic beverage
4-2 container and the consumption of any alcoholic beverage in the
4-3 passenger area of any motor vehicle located on a public highway or
4-4 the right-of-way of a public highway, is repealed or has expired;
4-5 (2) a United States court of appeals or the United
4-6 States Supreme Court has entered a final order holding that 23
4-7 U.S.C. Section 154, or a federal regulation implementing that
4-8 section, is unconstitutional or otherwise invalid, in whole or in
4-9 part; or
4-10 (3) a subsequently enacted act of congress has the
4-11 effect of abrogating the sanctions required by 23 U.S.C. Section
4-12 154.
4-13 SECTION 3. Section 49.09, Penal Code, is amended by adding
4-14 Subsection (g) to read as follows:
4-15 (g) This subsection applies only to a person convicted of a
4-16 second or subsequent offense relating to the operating of a motor
4-17 vehicle while intoxicated committed within five years of the date
4-18 on which the most recent preceding offense was committed. The
4-19 court shall enter an order that requires the defendant to have a
4-20 device installed, on each motor vehicle owned or operated by the
4-21 defendant, that uses a deep-lung breath analysis mechanism to make
4-22 impractical the operation of the motor vehicle if ethyl alcohol is
4-23 detected in the breath of the operator, and that requires that
4-24 before the first anniversary of the ending date of the period of
4-25 license suspension under Section 521.344, Transportation Code, the
4-26 defendant not operate any motor vehicle that is not equipped with
4-27 that device. The court shall require the defendant to obtain the
5-1 device at the defendant's own cost on or before that ending date,
5-2 require the defendant to provide evidence to the court on or before
5-3 that ending date that the device has been installed on each
5-4 appropriate vehicle, and order the device to remain installed on
5-5 each vehicle until the first anniversary of that ending date. If
5-6 the court determines the offender is unable to pay for the device,
5-7 the court may impose a reasonable payment schedule not to extend
5-8 beyond the first anniversary of the date of installation. The
5-9 Department of Public Safety shall approve devices for use under
5-10 this subsection. Section 521.247, Transportation Code, applies to
5-11 the approval of a device under this subsection and the consequences
5-12 of that approval. Failure to comply with an order entered under
5-13 this subsection is punishable by contempt. For the purpose of
5-14 enforcing this subsection, the court that enters an order under
5-15 this subsection retains jurisdiction over the defendant until the
5-16 date that the device is no longer required to remain installed. To
5-17 the extent of a conflict between this subsection and Section 13(i),
5-18 Article 42.12, Code of Criminal Procedure, this subsection
5-19 controls.
5-20 SECTION 4. Section 521.251, Transportation Code, is amended
5-21 by redesignating existing Subsection (d) as Subsection (e) and
5-22 adding a new Subsection (d) to read as follows:
5-23 (d) Notwithstanding any other provision in this section, if
5-24 the person's driver's license has been suspended as a result of a
5-25 second or subsequent conviction under Section 49.04, 49.07, or
5-26 49.08, Penal Code, committed within five years of the date on which
5-27 the most recent preceding offense was committed, an order granting
6-1 the person an occupational license may not take effect before the
6-2 first anniversary of the effective date of the suspension.
6-3 (e) [(d)] For the purposes of this section, "alcohol-related
6-4 or drug-related enforcement contact" has the meaning assigned by
6-5 Section 524.001.
6-6 SECTION 5. The heading to Section 521.344, Transportation
6-7 Code, is amended to read as follows:
6-8 Sec. 521.344. SUSPENSION FOR OFFENSES INVOLVING INTOXICATION
6-9 [RELATED TO USE OF ALCOHOL].
6-10 SECTION 6. Sections 521.344(a), (b), and (d), Transportation
6-11 Code, are amended to read as follows:
6-12 (a) Except as provided by Sections 521.342(b) and 521.345,
6-13 and by Subsections (d)-(i), if a person is convicted of an offense
6-14 under Section 49.04 or 49.07, Penal Code, [that is committed as a
6-15 result of the introduction of alcohol into the body,] the license
6-16 suspension:
6-17 (1) begins on a date set by the court that is not
6-18 earlier than the date of the conviction or later than the 30th day
6-19 after the date of the conviction, as determined by the court; and
6-20 (2) continues for a period set by the court according
6-21 to the following schedule:
6-22 (A) not less than 90 days or more than one year
6-23 if the person is punished under Section 49.04 or 49.07, Penal Code;
6-24 or
6-25 (B) not less than one year [180 days] or more
6-26 than two years, if the person is punished under Section 49.09,
6-27 Penal Code.
7-1 (b) Except as provided by Section 521.342(b), if a person is
7-2 convicted of an offense under Section 49.08, Penal Code, the
7-3 license suspension [begins]:
7-4 (1) begins on a date set by the court that is not
7-5 earlier than the date of the conviction or later than the 30th day
7-6 after the date of the conviction, as determined by the court; and
7-7 (2) continues for a period set by the court of not
7-8 less than one year [180 days] or more than two years.
7-9 (d) Except as provided by Subsection (e) and Section
7-10 521.342(b), during a period of probation the department may not
7-11 revoke the person's license if the person is required under Section
7-12 13(h) or (j), Article 42.12, Code of Criminal Procedure, to
7-13 successfully complete an educational program designed to
7-14 rehabilitate persons who have operated motor vehicles while
7-15 intoxicated, unless the person was punished under Section 49.09,
7-16 Penal Code. The department may not revoke the license of a person:
7-17 (1) for whom the jury has recommended that the license
7-18 not be revoked under Section 13(g), Article 42.12, Code of Criminal
7-19 Procedure; or
7-20 (2) who is placed under community supervision under
7-21 that article and is required as a condition of community
7-22 supervision to not operate a motor vehicle unless the vehicle is
7-23 equipped with the device described by Section 13(i) of that
7-24 article, unless the person was punished under Section 49.09, Penal
7-25 Code.
7-26 SECTION 7. Section 9(h), Article 42.12, Code of Criminal
7-27 Procedure, is amended to read as follows:
8-1 (h) On a determination by the judge that alcohol or drug
8-2 abuse may have contributed to the commission of the offense, or in
8-3 any case involving a second or subsequent offense under Section
8-4 49.04, Penal Code, committed within five years of the date on which
8-5 the most recent preceding offense was committed, or a second or
8-6 subsequent offense under Section 49.07 or 49.08 of that code that
8-7 involves the operation of a motor vehicle, committed within five
8-8 years of the date on which the most recent preceding offense was
8-9 committed, the judge shall direct a supervision officer approved by
8-10 the community supervision and corrections department or the judge
8-11 or a person, program, or other agency approved by the Texas
8-12 Commission on Alcohol and Drug Abuse, to conduct an evaluation to
8-13 determine the appropriateness of, and a course of conduct necessary
8-14 for, alcohol or drug rehabilitation for a defendant and to report
8-15 that evaluation to the judge. The evaluation shall be made:
8-16 (1) after arrest and before conviction, if requested
8-17 by the defendant;
8-18 (2) after conviction and before sentencing, if the
8-19 judge assesses punishment in the case;
8-20 (3) after sentencing and before the entry of a final
8-21 judgment, if the jury assesses punishment in the case; or
8-22 (4) after community supervision is granted, if the
8-23 evaluation is required as a condition of community supervision
8-24 under Section 13 of this article.
8-25 SECTION 8. Sections 13(a), (g), and (k), Article 42.12, Code
8-26 of Criminal Procedure, are amended to read as follows:
8-27 (a) A judge granting community supervision to a defendant
9-1 convicted of an offense under Chapter 49, Penal Code, shall require
9-2 as a condition of community supervision that the defendant submit
9-3 to:
9-4 (1) not less than five [three] days of confinement in
9-5 county jail if the defendant was punished under Section 49.09(a);
9-6 not less than 10 days of confinement in county jail if the
9-7 defendant was punished under Section 49.09(b) or (c); or not less
9-8 than 30 days of confinement in county jail if the defendant was
9-9 convicted under Section 49.07; and
9-10 (2) an evaluation by a supervision officer or by a
9-11 person, program, or facility approved by the Texas Commission on
9-12 Alcohol and Drug Abuse for the purpose of having the facility
9-13 prescribe and carry out a course of conduct necessary for the
9-14 rehabilitation of the defendant's drug or alcohol dependence
9-15 condition.
9-16 (g) A jury that recommends community supervision for a
9-17 person convicted of an offense under Sections 49.04-49.08, Penal
9-18 Code, may recommend that any driver's license issued to the
9-19 defendant under Chapter 521, Transportation Code, not be suspended.
9-20 This subsection does not apply to a person punished under Section
9-21 49.09, Penal Code.
9-22 (k) Notwithstanding Sections 521.344(d)-(i), Transportation
9-23 Code, if the judge, under Subsection (h) or (j) of this section,
9-24 permits or requires a defendant punished under Section 49.09, Penal
9-25 Code, to attend an educational program as a condition of community
9-26 supervision, or waives the required attendance for such a program,
9-27 and the defendant has previously been required to attend such a
10-1 program, or the required attendance at the program had been waived,
10-2 the judge nonetheless shall order the suspension of the driver's
10-3 license, permit, or operating privilege of that person for a period
10-4 determined by the judge according to the following schedule:
10-5 (1) not less than 90 days or more than 365 days, if
10-6 the defendant is convicted under Sections 49.04-49.08, Penal Code;
10-7 or
10-8 (2) not less than one year [180 days] or more than two
10-9 years, if the defendant is punished under Section 49.09, Penal
10-10 Code.
10-11 SECTION 9. (a) Except as provided by Subsection (b) of this
10-12 section, this Act takes effect September 1, 2001.
10-13 (b) If, before September 1, 2001, the attorney general files
10-14 with the secretary of state a certificate certifying the finding by
10-15 the attorney general of a fact described by Section 49.031(e) or
10-16 (f), Penal Code, as added by this Act, Section 2 of this Act does
10-17 not take effect until the 30th day after the date the attorney
10-18 general files a subsequent certificate with the secretary of state
10-19 certifying the finding by the attorney general that none of the
10-20 facts described by Section 49.031(e) or (f) exist.
10-21 (c) The change in law made by Section 3 of this Act applies
10-22 only to a person convicted of an offense involving the operating of
10-23 a motor vehicle on or after September 1, 2001.
10-24 (d) The change in law made by Section 4 of this Act applies
10-25 only to a person who applies for an occupational driver's license
10-26 on or after September 1, 2001.
10-27 (e) The change in law made by Section 6 of this Act applies
11-1 only to the suspension of the driver's license of a person
11-2 convicted of an offense committed on or after September 1, 2001.
11-3 The suspension of the driver's license of a person convicted of an
11-4 offense that was committed before September 1, 2001, is governed by
11-5 the law in effect on the date that the offense was committed, and
11-6 the former law is continued in effect for that purpose.
11-7 (f) The change in law made by Section 7 of this Act applies
11-8 only to an evaluation ordered in relation to an offense committed
11-9 on or after September 1, 2001. An evaluation ordered in relation
11-10 to an offense that was committed before September 1, 2001, is
11-11 governed by the law in effect on the date that the offense was
11-12 committed, and the former law is continued in effect for that
11-13 purpose.
11-14 (g) The changes in law made by Section 8 of this Act apply
11-15 only to a person placed on community supervision for an offense
11-16 committed on or after September 1, 2001. A person placed on
11-17 community supervision for an offense that was committed before
11-18 September 1, 2001, is governed by the law in effect on the date the
11-19 offense was committed, and the former law is continued in effect
11-20 for that purpose.
11-21 (h) For the purposes of this section, an offense was
11-22 committed before September 1, 2001, if any element of the offense
11-23 occurred before that date.