1-1 By: Dunnam, et al. (Senate Sponsor - Nelson) H.B. No. 5
1-2 (In the Senate - Received from the House March 22, 2001;
1-3 March 26, 2001, read first time and referred to Committee on
1-4 Criminal Justice; May 10, 2001, reported favorably by the following
1-5 vote: Yeas 6, Nays 0; May 10, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the deterrence of conduct involving the operation of a
1-9 motor vehicle while under the influence of an alcoholic beverage;
1-10 providing a penalty.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. The purpose of this Act is to avoid the imposition
1-13 of sanctions against this state and the loss of federal highway
1-14 construction funds under Section 1405(a), Transportation Equity Act
1-15 for the 21st Century (23 U.S.C. Section 154), as amended, which
1-16 requires states to enact and enforce a law that prohibits the
1-17 possession of an open alcoholic beverage container in the passenger
1-18 area of a motor vehicle that is located on a public highway or the
1-19 right-of-way adjacent to a public highway, and Section 1406(a),
1-20 Transportation Equity Act for the 21st Century Restoration Act (23
1-21 U.S.C. Section 164), as amended, which requires states to enact and
1-22 enforce minimum penalties against repeat intoxicated drivers.
1-23 SECTION 2. Chapter 49, Penal Code, is amended by adding
1-24 Section 49.031 to read as follows:
1-25 Sec. 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR
1-26 VEHICLE. (a) In this section:
1-27 (1) "Open container" means a bottle, can, or other
1-28 receptacle that contains any amount of alcoholic beverage and that
1-29 is open, that has been opened, that has a broken seal, or the
1-30 contents of which are partially removed.
1-31 (2) "Passenger area of a motor vehicle" means the area
1-32 of a motor vehicle designed for the seating of the operator and
1-33 passengers of the vehicle. The term does not include:
1-34 (A) a glove compartment or similar storage
1-35 container that is locked;
1-36 (B) the trunk of a vehicle; or
1-37 (C) the area behind the last upright seat of the
1-38 vehicle, if the vehicle does not have a trunk.
1-39 (3) "Public highway" means the entire width between
1-40 and immediately adjacent to the boundary lines of any public road,
1-41 street, highway, interstate, or other publicly maintained way if
1-42 any part is open for public use for the purpose of motor vehicle
1-43 travel. The term includes the right-of-way of a public highway.
1-44 (b) A person commits an offense if the person knowingly
1-45 possesses an open container in a passenger area of a motor vehicle
1-46 that is located on a public highway, regardless of whether the
1-47 vehicle is being operated or is stopped or parked. Possession by a
1-48 person of one or more open containers in a single criminal episode
1-49 is a single offense.
1-50 (c) It is an exception to the application of Subsection (b)
1-51 that at the time of the offense the defendant was a passenger in:
1-52 (1) the passenger area of a motor vehicle designed,
1-53 maintained, or used primarily for the transportation of persons for
1-54 compensation, including a bus, taxicab, or limousine; or
1-55 (2) the living quarters of a motorized house coach or
1-56 motorized house trailer, including a self-contained camper, a motor
1-57 home, or a recreational vehicle.
1-58 (d) An offense under this section is a Class C misdemeanor.
1-59 (e) A peace officer charging a person with an offense under
1-60 this section, instead of taking the person before a magistrate,
1-61 shall issue to the person a written citation and notice to appear
1-62 that contains the time and place the person must appear before a
1-63 magistrate, the name and address of the person charged, and the
1-64 offense charged. If the person makes a written promise to appear
2-1 before the magistrate by signing in duplicate the citation and
2-2 notice to appear issued by the officer, the officer shall release
2-3 the person.
2-4 SECTION 3. Section 49.09, Penal Code, is amended by adding
2-5 Subsection (g) to read as follows:
2-6 (g) This subsection applies only to a person convicted of a
2-7 second or subsequent offense relating to the operating of a motor
2-8 vehicle while intoxicated committed within five years of the date
2-9 on which the most recent preceding offense was committed. The
2-10 court shall enter an order that requires the defendant to have a
2-11 device installed, on each motor vehicle owned or operated by the
2-12 defendant, that uses a deep-lung breath analysis mechanism to make
2-13 impractical the operation of the motor vehicle if ethyl alcohol is
2-14 detected in the breath of the operator, and that requires that
2-15 before the first anniversary of the ending date of the period of
2-16 license suspension under Section 521.344, Transportation Code, the
2-17 defendant not operate any motor vehicle that is not equipped with
2-18 that device. The court shall require the defendant to obtain the
2-19 device at the defendant's own cost on or before that ending date,
2-20 require the defendant to provide evidence to the court on or before
2-21 that ending date that the device has been installed on each
2-22 appropriate vehicle, and order the device to remain installed on
2-23 each vehicle until the first anniversary of that ending date. If
2-24 the court determines the offender is unable to pay for the device,
2-25 the court may impose a reasonable payment schedule not to extend
2-26 beyond the first anniversary of the date of installation. The
2-27 Department of Public Safety shall approve devices for use under
2-28 this subsection. Section 521.247, Transportation Code, applies to
2-29 the approval of a device under this subsection and the consequences
2-30 of that approval. Failure to comply with an order entered under
2-31 this subsection is punishable by contempt. For the purpose of
2-32 enforcing this subsection, the court that enters an order under
2-33 this subsection retains jurisdiction over the defendant until the
2-34 date on which the device is no longer required to remain installed.
2-35 To the extent of a conflict between this subsection and Section
2-36 13(i), Article 42.12, Code of Criminal Procedure, this subsection
2-37 controls.
2-38 SECTION 4. Section 49.11, Penal Code, is amended to read as
2-39 follows:
2-40 Sec. 49.11. PROOF OF MENTAL STATE UNNECESSARY. (a)
2-41 Notwithstanding Section 6.02(b), proof of a culpable mental state
2-42 is not required for conviction of an offense under this chapter.
2-43 (b) Subsection (a) does not apply to an offense under
2-44 Section 49.031.
2-45 SECTION 5. Section 521.251, Transportation Code, is amended
2-46 by redesignating existing Subsection (d) as Subsection (e) and
2-47 adding a new Subsection (d) to read as follows:
2-48 (d) Notwithstanding any other provision in this section, if
2-49 the person's driver's license has been suspended as a result of a
2-50 second or subsequent conviction under Section 49.04, 49.07, or
2-51 49.08, Penal Code, committed within five years of the date on which
2-52 the most recent preceding offense was committed, an order granting
2-53 the person an occupational license may not take effect before the
2-54 first anniversary of the effective date of the suspension.
2-55 (e) [(d)] For the purposes of this section, "alcohol-related
2-56 or drug-related enforcement contact" has the meaning assigned by
2-57 Section 524.001.
2-58 SECTION 6. The heading to Section 521.344, Transportation
2-59 Code, is amended to read as follows:
2-60 Sec. 521.344. SUSPENSION FOR OFFENSES INVOLVING INTOXICATION
2-61 [RELATED TO USE OF ALCOHOL].
2-62 SECTION 7. Sections 521.344(a), (b), and (d), Transportation
2-63 Code, are amended to read as follows:
2-64 (a) Except as provided by Sections 521.342(b) and 521.345,
2-65 and by Subsections (d)-(i), if a person is convicted of an offense
2-66 under Section 49.04 or 49.07, Penal Code, [that is committed as a
2-67 result of the introduction of alcohol into the body,] the license
2-68 suspension:
2-69 (1) begins on a date set by the court that is not
3-1 earlier than the date of the conviction or later than the 30th day
3-2 after the date of the conviction, as determined by the court; and
3-3 (2) continues for a period set by the court according
3-4 to the following schedule:
3-5 (A) not less than 90 days or more than one year,
3-6 if the person is punished under Section 49.04 or 49.07, Penal Code,
3-7 except that if the person's license is suspended for a second or
3-8 subsequent offense under Section 49.07 committed within five years
3-9 of the date on which the most recent preceding offense was
3-10 committed, the suspension continues for a period of one year; [or]
3-11 (B) not less than 180 days or more than two
3-12 years, if the person is punished under Section 49.09(a) or (b)
3-13 [49.09], Penal Code; or
3-14 (C) not less than one year or more than two
3-15 years, if the person is punished under Section 49.09(a) or (b),
3-16 Penal Code, and is subject to Section 49.09(g) of that code.
3-17 (b) Except as provided by Section 521.342(b), if a person is
3-18 convicted of an offense under Section 49.08, Penal Code, the
3-19 license suspension [begins]:
3-20 (1) begins on a date set by the court that is not
3-21 earlier than the date of the conviction or later than the 30th day
3-22 after the date of the conviction, as determined by the court; and
3-23 (2) continues for a period set by the court of not
3-24 less than 180 days or more than two years, except that if the
3-25 person's license is suspended for a second or subsequent offense
3-26 under Section 49.08, Penal Code, committed within 10 years of the
3-27 date on which the most recent preceding offense was committed, the
3-28 suspension continues for a period set by the court of not less than
3-29 one year or more than two years.
3-30 (d) Except as provided by Subsection (e) and Section
3-31 521.342(b), during a period of probation the department may not
3-32 revoke the person's license if the person is required under Section
3-33 13(h) or (j), Article 42.12, Code of Criminal Procedure, to
3-34 successfully complete an educational program designed to
3-35 rehabilitate persons who have operated motor vehicles while
3-36 intoxicated, unless the person was punished under Section 49.09(a)
3-37 or (b), Penal Code, and was subject to Section 49.09(g) of that
3-38 code. The department may not revoke the license of a person:
3-39 (1) for whom the jury has recommended that the license
3-40 not be revoked under Section 13(g), Article 42.12, Code of Criminal
3-41 Procedure; or
3-42 (2) who is placed under community supervision under
3-43 that article and is required as a condition of community
3-44 supervision to not operate a motor vehicle unless the vehicle is
3-45 equipped with the device described by Section 13(i) of that
3-46 article, unless the person was punished under Section 49.09(a) or
3-47 (b), Penal Code, and was subject to Section 49.09(g) of that code.
3-48 SECTION 8. Section 9(h), Article 42.12, Code of Criminal
3-49 Procedure, is amended to read as follows:
3-50 (h) On a determination by the judge that alcohol or drug
3-51 abuse may have contributed to the commission of the offense, or in
3-52 any case involving a second or subsequent offense under Section
3-53 49.04, Penal Code, committed within five years of the date on which
3-54 the most recent preceding offense was committed, or a second or
3-55 subsequent offense under Section 49.07 or 49.08 of that code that
3-56 involves the operation of a motor vehicle, committed within five
3-57 years of the date on which the most recent preceding offense was
3-58 committed, the judge shall direct a supervision officer approved by
3-59 the community supervision and corrections department or the judge
3-60 or a person, program, or other agency approved by the Texas
3-61 Commission on Alcohol and Drug Abuse, to conduct an evaluation to
3-62 determine the appropriateness of, and a course of conduct necessary
3-63 for, alcohol or drug rehabilitation for a defendant and to report
3-64 that evaluation to the judge. The evaluation shall be made:
3-65 (1) after arrest and before conviction, if requested
3-66 by the defendant;
3-67 (2) after conviction and before sentencing, if the
3-68 judge assesses punishment in the case;
3-69 (3) after sentencing and before the entry of a final
4-1 judgment, if the jury assesses punishment in the case; or
4-2 (4) after community supervision is granted, if the
4-3 evaluation is required as a condition of community supervision
4-4 under Section 13 of this article.
4-5 SECTION 9. Sections 13(a), (g), and (k), Article 42.12, Code
4-6 of Criminal Procedure, are amended to read as follows:
4-7 (a) A judge granting community supervision to a defendant
4-8 convicted of an offense under Chapter 49, Penal Code, shall require
4-9 as a condition of community supervision that the defendant submit
4-10 to:
4-11 (1) not less than three days of confinement in county
4-12 jail if the defendant was punished under Section 49.09(a); not less
4-13 than five days of confinement in county jail if the defendant was
4-14 punished under Section 49.09(a) and was subject to Section
4-15 49.09(g); not less than 10 days of confinement in county jail if
4-16 the defendant was punished under Section 49.09(b) or (c); or not
4-17 less than 30 days of confinement in county jail if the defendant
4-18 was convicted under Section 49.07; and
4-19 (2) an evaluation by a supervision officer or by a
4-20 person, program, or facility approved by the Texas Commission on
4-21 Alcohol and Drug Abuse for the purpose of having the facility
4-22 prescribe and carry out a course of conduct necessary for the
4-23 rehabilitation of the defendant's drug or alcohol dependence
4-24 condition.
4-25 (g) A jury that recommends community supervision for a
4-26 person convicted of an offense under Sections 49.04-49.08, Penal
4-27 Code, may recommend that any driver's license issued to the
4-28 defendant under Chapter 521, Transportation Code, not be suspended.
4-29 This subsection does not apply to a person punished under Section
4-30 49.09(a) or (b), Penal Code, and subject to Section 49.09(g) of
4-31 that code.
4-32 (k) Notwithstanding Sections 521.344(d)-(i), Transportation
4-33 Code, if the judge, under Subsection (h) or (j) of this section,
4-34 permits or requires a defendant punished under Section 49.09, Penal
4-35 Code, to attend an educational program as a condition of community
4-36 supervision, or waives the required attendance for such a program,
4-37 and the defendant has previously been required to attend such a
4-38 program, or the required attendance at the program had been waived,
4-39 the judge nonetheless shall order the suspension of the driver's
4-40 license, permit, or operating privilege of that person for a period
4-41 determined by the judge according to the following schedule:
4-42 (1) not less than 90 days or more than 365 days, if
4-43 the defendant is convicted under Sections 49.04-49.08, Penal Code;
4-44 [or]
4-45 (2) not less than 180 days or more than two years, if
4-46 the defendant is punished under Section 49.09(a) or (b) [49.09],
4-47 Penal Code; or
4-48 (3) not less than one year or more than two years, if
4-49 the person is convicted of a second or subsequent offense under
4-50 Sections 49.04-49.08, Penal Code, committed within five years of
4-51 the date on which the most recent preceding offense was committed.
4-52 SECTION 10. Section 49.03, Penal Code, is repealed.
4-53 SECTION 11. (a) Except as provided by Subsection (b) of
4-54 this section, this Act takes effect September 1, 2001.
4-55 (b) The change in law made by Section 3 of this Act applies
4-56 only to a person convicted of an offense involving the operating of
4-57 a motor vehicle on or after September 1, 2001.
4-58 (c) The change in law made by Section 5 of this Act applies
4-59 only to a person who applies for an occupational driver's license
4-60 on or after September 1, 2001.
4-61 (d) The change in law made by Section 7 of this Act applies
4-62 only to the suspension of the driver's license of a person
4-63 convicted of an offense committed on or after September 1, 2001.
4-64 The suspension of the driver's license of a person convicted of an
4-65 offense that was committed before September 1, 2001, is governed by
4-66 the law in effect on the date the offense was committed, and the
4-67 former law is continued in effect for that purpose.
4-68 (e) The change in law made by Section 8 of this Act applies
4-69 only to an evaluation ordered in relation to an offense committed
5-1 on or after September 1, 2001. An evaluation ordered in relation
5-2 to an offense that was committed before September 1, 2001, is
5-3 governed by the law in effect on the date the offense was
5-4 committed, and the former law is continued in effect for that
5-5 purpose.
5-6 (f) The changes in law made by Section 9 of this Act apply
5-7 only to a person placed on community supervision for an offense
5-8 committed on or after September 1, 2001. A person placed on
5-9 community supervision for an offense that was committed before
5-10 September 1, 2001, is governed by the law in effect on the date the
5-11 offense was committed, and the former law is continued in effect
5-12 for that purpose.
5-13 (g) For the purposes of this section, an offense was
5-14 committed before September 1, 2001, if any element of the offense
5-15 occurred before that date.
5-16 * * * * *