By: Nelson, Shapiro S.B. No. 89
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the creation of the offense of possessing an alcoholic
1-3 beverage in a motor vehicle and to the civil and criminal
1-4 consequences of operating a motor vehicle while intoxicated.
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
1-7 imposition of sanctions against this state and the loss of federal
1-8 highway construction funds under Section 1405(a), Transportation
1-9 Equity Act for the 21st Century (23 U.S.C. Section 154), as
1-10 amended, which requires states to enact and enforce a law that
1-11 prohibits the possession of an open alcoholic beverage container in
1-12 the passenger area of a motor vehicle that is located on a public
1-13 highway or the right-of-way adjacent to a public highway, and
1-14 Section 1406(a), Transportation Equity Act for the 21st Century
1-15 Restoration Act (23 U.S.C. Section 164), as amended, which requires
1-16 states to enact and enforce minimum penalties against repeat
1-17 intoxicated drivers.
1-18 SECTION 2. Chapter 49, Penal Code, is amended by adding
1-19 Section 49.031 to read as follows:
1-20 Sec. 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR
1-21 VEHICLE. (a) In this section:
1-22 (1) "Open container" means a bottle, can, or other
1-23 receptacle that contains any amount of alcoholic beverage and that
1-24 is open, that has been opened, that has a broken seal, or the
1-25 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 knowingly
2-18 possesses an open container in a passenger area of a motor vehicle
2-19 that is located on a public highway, regardless of whether the
2-20 vehicle is 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 a passenger in the passenger area of a motor
2-24 vehicle designed, maintained, or used primarily for the
2-25 transportation of persons for compensation, including a bus,
2-26 taxicab, or limousine; or
3-1 (2) was a passenger in the living quarters of a
3-2 motorized house coach or motorized house trailer, including a
3-3 self-contained camper, a motor home, or a recreational vehicle.
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
4-1 highway construction funds for failure to enact and enforce a law
4-2 that prohibits the possession of an open alcoholic beverage
4-3 container and the consumption of any alcoholic beverage in the
4-4 passenger area of any motor vehicle located on a public highway or
4-5 the right-of-way of a public highway, is repealed or has expired;
4-6 (2) a United States court of appeals or the United
4-7 States Supreme Court has entered a final order holding that 23
4-8 U.S.C. Section 154, or a federal regulation implementing that
4-9 section, is unconstitutional or otherwise invalid, in whole or in
4-10 part; or
4-11 (3) a subsequently enacted act of congress has the
4-12 effect of abrogating the sanctions required by 23 U.S.C. Section
4-13 154.
4-14 SECTION 3. Section 49.09, Penal Code, is amended by adding
4-15 Subsection (g) to read as follows:
4-16 (g) This subsection applies only to a person convicted of a
4-17 second or subsequent offense relating to the operating of a motor
4-18 vehicle while intoxicated committed within five years of the date
4-19 on which the most recent preceding offense was committed. The
4-20 court shall enter an order that requires the defendant to have a
4-21 device installed, on each motor vehicle owned or operated by the
4-22 defendant, that uses a deep-lung breath analysis mechanism to make
4-23 impractical the operation of the motor vehicle if ethyl alcohol is
4-24 detected in the breath of the operator, and that requires that
4-25 before the first anniversary of the ending date of the period of
4-26 license suspension under Section 521.344, Transportation Code, the
5-1 defendant not operate any motor vehicle that is not equipped with
5-2 that device. The court shall require the defendant to obtain the
5-3 device at the defendant's own cost on or before that ending date,
5-4 require the defendant to provide evidence to the court on or before
5-5 that ending date that the device has been installed on each
5-6 appropriate vehicle, and order the device to remain installed on
5-7 each vehicle until the first anniversary of that ending date. If
5-8 the court determines the offender is unable to pay for the device,
5-9 the court may impose a reasonable payment schedule not to extend
5-10 beyond the first anniversary of the date of installation. The
5-11 Department of Public Safety of the State of Texas shall approve
5-12 devices for use under this subsection. Section 521.247,
5-13 Transportation Code, applies to the approval of a device under this
5-14 subsection and the consequences of that approval. Failure to
5-15 comply with an order entered under this subsection is punishable by
5-16 contempt. For the purpose of enforcing this subsection, the court
5-17 that enters an order under this subsection retains jurisdiction
5-18 over the defendant until the date that the device is no longer
5-19 required to remain installed. To the extent of a conflict between
5-20 this subsection and Section 13(i), Article 42.12, Code of Criminal
5-21 Procedure, this subsection controls.
5-22 SECTION 4. Section 521.251, Transportation Code, is amended
5-23 by redesignating existing Subsection (d) as Subsection (e) and
5-24 adding a new Subsection (d) to read as follows:
5-25 (d) Notwithstanding any other provision in this section, if
5-26 the person's driver's license has been suspended as a result of a
6-1 second or subsequent conviction under Section 49.04, 49.07, or
6-2 49.08, Penal Code, committed within five years of the date on which
6-3 the most recent preceding offense was committed, an order granting
6-4 the person an occupational license may not take effect before the
6-5 first anniversary of the effective date of the suspension.
6-6 (e) For the purposes of this section, "alcohol-related or
6-7 drug-related enforcement contact" has the meaning assigned by
6-8 Section 524.001.
6-9 SECTION 5. The section heading to Section 521.344,
6-10 Transportation Code, is amended to read as follows:
6-11 Sec. 521.344. SUSPENSION FOR OFFENSES INVOLVING INTOXICATION
6-12 [RELATED TO USE OF ALCOHOL].
6-13 SECTION 6. Subsections (a), (b), and (d), Section 521.344,
6-14 Transportation Code, are amended to read as follows:
6-15 (a) Except as provided by Sections 521.342(b) and 521.345,
6-16 and by Subsections (d)-(i), if a person is convicted of an offense
6-17 under Section 49.04 or 49.07, Penal Code, [that is committed as a
6-18 result of the introduction of alcohol into the body,] the license
6-19 suspension:
6-20 (1) begins on a date set by the court that is not
6-21 earlier than the date of the conviction or later than the 30th day
6-22 after the date of the conviction, as determined by the court; and
6-23 (2) continues for a period set by the court according
6-24 to the following schedule:
6-25 (A) not less than 90 days or more than one year
6-26 if the person is punished under Section 49.04 or 49.07, Penal Code;
7-1 or
7-2 (B) not less than one year [180 days] or more
7-3 than two years, if the person is punished under Section 49.09,
7-4 Penal Code.
7-5 (b) Except as provided by Section 521.342(b), if a person is
7-6 convicted of an offense under Section 49.08, Penal Code, the
7-7 license suspension [begins]:
7-8 (1) begins on a date set by the court that is not
7-9 earlier than the date of the conviction or later than the 30th day
7-10 after the date of the conviction, as determined by the court; and
7-11 (2) continues for a period set by the court of not
7-12 less than one year [180 days] or more than two years.
7-13 (d) Except as provided by Subsection (e) and Section
7-14 521.342(b), during a period of probation the department may not
7-15 revoke the person's license if the person is required under Section
7-16 13(h) or (j), Article 42.12, Code of Criminal Procedure, to
7-17 successfully complete an educational program designed to
7-18 rehabilitate persons who have operated motor vehicles while
7-19 intoxicated, unless the person was punished under Section 49.09,
7-20 Penal Code. The department may not revoke the license of a person:
7-21 (1) for whom the jury has recommended that the license
7-22 not be revoked under Section 13(g), Article 42.12, Code of Criminal
7-23 Procedure; or
7-24 (2) who is placed under community supervision under
7-25 that article and is required as a condition of community
7-26 supervision to not operate a motor vehicle unless the vehicle is
8-1 equipped with the device described by Section 13(i) of that
8-2 article, unless the person was punished under Section 49.09, Penal
8-3 Code.
8-4 SECTION 7. Subsection (h), Section 9, Article 42.12, Code of
8-5 Criminal Procedure, is amended to read as follows:
8-6 (h) On a determination by the judge that alcohol or drug
8-7 abuse may have contributed to the commission of the offense, or in
8-8 any case involving a second or subsequent offense under Section
8-9 49.04, Penal Code, committed within five years of the date on which
8-10 the most recent preceding offense was committed, or a second or
8-11 subsequent offense under Section 49.07 or 49.08 of that code that
8-12 involves the operation of a motor vehicle, committed within five
8-13 years of the date on which the most recent preceding offense was
8-14 committed, the judge shall direct a supervision officer approved by
8-15 the community supervision and corrections department or the judge
8-16 or a person, program, or other agency approved by the Texas
8-17 Commission on Alcohol and Drug Abuse, to conduct an evaluation to
8-18 determine the appropriateness of, and a course of conduct necessary
8-19 for, alcohol or drug rehabilitation for a defendant and to report
8-20 that evaluation to the judge. The evaluation shall be made:
8-21 (1) after arrest and before conviction, if requested
8-22 by the defendant;
8-23 (2) after conviction and before sentencing, if the
8-24 judge assesses punishment in the case;
8-25 (3) after sentencing and before the entry of a final
8-26 judgment, if the jury assesses punishment in the case; or
9-1 (4) after community supervision is granted, if the
9-2 evaluation is required as a condition of community supervision
9-3 under Section 13 of this article.
9-4 SECTION 8. Subsections (a), (g), and (k), Section 13,
9-5 Article 42.12, Code of Criminal Procedure, are amended to read as
9-6 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 five [three] days of confinement in
9-12 county jail if the defendant was punished under Section 49.09(a);
9-13 not less than 10 days of confinement in county jail if the
9-14 defendant was punished under Section 49.09(b) or (c); or not less
9-15 than 30 days of confinement in county jail if the defendant was
9-16 convicted under Section 49.07; and
9-17 (2) an evaluation by a supervision officer or by a
9-18 person, program, or facility approved by the Texas Commission on
9-19 Alcohol and Drug Abuse for the purpose of having the facility
9-20 prescribe and carry out a course of conduct necessary for the
9-21 rehabilitation of the defendant's drug or alcohol dependence
9-22 condition.
9-23 (g) A jury that recommends community supervision for a
9-24 person convicted of an offense under Sections 49.04-49.08, Penal
9-25 Code, may recommend that any driver's license issued to the
9-26 defendant under Chapter 521, Transportation Code, not be suspended.
10-1 This subsection does not apply to a person punished under Section
10-2 49.09, Penal Code.
10-3 (k) Notwithstanding Sections 521.344(d)-(i), Transportation
10-4 Code, if the judge, under Subsection (h) or (j) of this section,
10-5 permits or requires a defendant punished under Section 49.09, Penal
10-6 Code, to attend an educational program as a condition of community
10-7 supervision, or waives the required attendance for such a program,
10-8 and the defendant has previously been required to attend such a
10-9 program, or the required attendance at the program had been waived,
10-10 the judge nonetheless shall order the suspension of the driver's
10-11 license, permit, or operating privilege of that person for a period
10-12 determined by the judge according to the following schedule:
10-13 (1) not less than 90 days or more than 365 days, if
10-14 the defendant is convicted under Sections 49.04-49.08, Penal Code;
10-15 or
10-16 (2) not less than one year [180 days] or more than two
10-17 years, if the defendant is punished under Section 49.09, Penal
10-18 Code.
10-19 SECTION 9. (a) Except as provided by Subsection (b) of this
10-20 section, this Act takes effect September 1, 2001.
10-21 (b) If, before September 1, 2001, the attorney general files
10-22 with the secretary of state a certificate certifying the finding by
10-23 the attorney general of a fact described by Subsection (e) or (f),
10-24 Section 49.031, Penal Code, as added by this Act, Section 2 of this
10-25 Act does not take effect until the 30th day after the date the
10-26 attorney general files a subsequent certificate with the secretary
11-1 of state certifying the finding by the attorney general that none
11-2 of the facts described by Subsection (e) or (f), Section 49.031,
11-3 Penal Code, exist.
11-4 (c) The change in law made by Section 3 of this Act applies
11-5 only to a person convicted of an offense involving the operating of
11-6 a motor vehicle on or after September 1, 2001.
11-7 (d) The change in law made by Section 4 of this Act applies
11-8 only to a person who applies for an occupational driver's license
11-9 on or after September 1, 2001.
11-10 (e) The change in law made by Section 6 of this Act applies
11-11 only to the suspension of the driver's license of a person
11-12 convicted of an offense committed on or after September 1, 2001.
11-13 The suspension of the driver's license of a person convicted of an
11-14 offense that was committed before September 1, 2001, is governed by
11-15 the law in effect on the date that the offense was committed, and
11-16 the former law is continued in effect for that purpose.
11-17 (f) The change in law made by Section 7 of this Act applies
11-18 only to an evaluation ordered in relation to an offense committed
11-19 on or after September 1, 2001. An evaluation ordered in relation
11-20 to an offense that was committed before September 1, 2001, is
11-21 governed by the law in effect on the date that the offense was
11-22 committed, and the former law is continued in effect for that
11-23 purpose.
11-24 (g) The changes in law made by Section 8 of this Act apply
11-25 only to a person placed on community supervision for an offense
11-26 committed on or after September 1, 2001. A person placed on
12-1 community supervision for an offense that was committed before
12-2 September 1, 2001, is governed by the law in effect on the date the
12-3 offense was committed, and the former law is continued in effect
12-4 for that purpose.
12-5 (h) For the purposes of this section, an offense was
12-6 committed before September 1, 2001, if any element of the offense
12-7 occurred before that date.