1-1 By: Nelson S.B. No. 89
1-2 (In the Senate - Filed November 13, 2000; January 10, 2001,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 March 12, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 0, 1 present, not
1-6 voting; March 12, 2001, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 89 By: Staples
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the creation of the offense of possessing an alcoholic
1-11 beverage in a motor vehicle and to the civil and criminal
1-12 consequences of operating a motor vehicle while intoxicated.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. The purpose of this Act is to avoid the
1-15 imposition of sanctions against this state and the loss of federal
1-16 highway construction funds under Section 1405(a), Transportation
1-17 Equity Act for the 21st Century (23 U.S.C. Section 154), as
1-18 amended, which requires states to enact and enforce a law that
1-19 prohibits the possession of an open alcoholic beverage container in
1-20 the passenger area of a motor vehicle that is located on a public
1-21 highway or the right-of-way adjacent to a public highway, and
1-22 Section 1406(a), Transportation Equity Act for the 21st Century
1-23 Restoration Act (23 U.S.C. Section 164), as amended, which requires
1-24 states to enact and enforce minimum penalties against repeat
1-25 intoxicated drivers.
1-26 SECTION 2. Chapter 49, Penal Code, is amended by adding
1-27 Section 49.031 to read as follows:
1-28 Sec. 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR
1-29 VEHICLE. (a) In this section:
1-30 (1) "Open container" means a bottle, can, or other
1-31 receptacle that contains any amount of alcoholic beverage and that
1-32 is open, that has been opened, that has a broken seal, or the
1-33 contents of which are partially removed.
1-34 (2) "Passenger area of a motor vehicle" means the area
1-35 of a motor vehicle designed for the seating of the operator and
1-36 passengers of the vehicle. The term does not include:
1-37 (A) a glove compartment or similar storage
1-38 container that is locked;
1-39 (B) the trunk of a vehicle; or
1-40 (C) if the vehicle does not have a trunk:
1-41 (i) the area behind the last upright seat
1-42 of the vehicle; or
1-43 (ii) an area not normally occupied by the
1-44 operator or passengers.
1-45 (3) "Public highway" means the entire width between
1-46 and immediately adjacent to the boundary lines of any public road,
1-47 street, highway, interstate, or other publicly maintained way if
1-48 any part is open for public use for the purpose of motor vehicle
1-49 travel. The term includes the right-of-way of a public highway.
1-50 (b) A person commits an offense if the person knowingly
1-51 possesses an open container in a passenger area of a motor vehicle
1-52 that is located on a public highway, regardless of whether the
1-53 vehicle is being operated or is stopped or parked.
1-54 (c) It is an exception to the application of Subsection (b)
1-55 that at the time of the offense the defendant:
1-56 (1) was a passenger in the passenger area of a motor
1-57 vehicle designed, maintained, or used primarily for the
1-58 transportation of persons for compensation, including a bus,
1-59 taxicab, or limousine; or
1-60 (2) was a passenger in the living quarters of a
1-61 motorized house coach or motorized house trailer, including a
1-62 self-contained camper, a motor home, or a recreational vehicle.
1-63 (d) An offense under this section is a Class C misdemeanor.
1-64 (e) The enforcement of this section is suspended on the 30th
2-1 day after the date the attorney general files a certificate with
2-2 the secretary of state for publication in the Texas Register,
2-3 certifying the finding by the attorney general that the enforcement
2-4 of 23 U.S.C. Section 154, to the extent that section imposes
2-5 sanctions against a state involving the transfer of federal highway
2-6 construction funds for failure to enact and enforce a law that
2-7 prohibits the possession of an open alcoholic beverage container
2-8 and the consumption of any alcoholic beverage in the passenger area
2-9 of any motor vehicle located on a public highway or the
2-10 right-of-way of a public highway, is suspended or enjoined. The
2-11 period of suspension continues until the 30th day after the date
2-12 the attorney general files a subsequent certificate with the
2-13 secretary of state certifying the finding by the attorney general
2-14 that enforcement of 23 U.S.C. Section 154 is no longer suspended or
2-15 enjoined.
2-16 (f) This section expires on the 30th day after the date the
2-17 attorney general files a certificate with the secretary of state
2-18 for publication in the Texas Register, certifying the finding by
2-19 the attorney general that:
2-20 (1) 23 U.S.C. Section 154, to the extent that section
2-21 imposes sanctions against a state involving the transfer of federal
2-22 highway construction funds for failure to enact and enforce a law
2-23 that prohibits the possession of an open alcoholic beverage
2-24 container and the consumption of any alcoholic beverage in the
2-25 passenger area of any motor vehicle located on a public highway or
2-26 the right-of-way of a public highway, is repealed or has expired;
2-27 (2) a United States court of appeals or the United
2-28 States Supreme Court has entered a final order holding that 23
2-29 U.S.C. Section 154, or a federal regulation implementing that
2-30 section, is unconstitutional or otherwise invalid, in whole or in
2-31 part; or
2-32 (3) a subsequently enacted act of congress has the
2-33 effect of abrogating the sanctions required by 23 U.S.C. Section
2-34 154.
2-35 SECTION 3. Section 49.09, Penal Code, is amended by adding
2-36 Subsection (g) to read as follows:
2-37 (g) This subsection applies only to a person convicted of a
2-38 second or subsequent offense relating to the operating of a motor
2-39 vehicle while intoxicated committed within five years of the date
2-40 on which the most recent preceding offense was committed. The
2-41 court shall enter an order that requires the defendant to have a
2-42 device installed, on each motor vehicle owned or operated by the
2-43 defendant, that uses a deep-lung breath analysis mechanism to make
2-44 impractical the operation of the motor vehicle if ethyl alcohol is
2-45 detected in the breath of the operator, and that requires that
2-46 before the first anniversary of the ending date of the period of
2-47 license suspension under Section 521.344, Transportation Code, the
2-48 defendant not operate any motor vehicle that is not equipped with
2-49 that device. The court shall require the defendant to obtain the
2-50 device at the defendant's own cost on or before that ending date,
2-51 require the defendant to provide evidence to the court on or before
2-52 that ending date that the device has been installed on each
2-53 appropriate vehicle, and order the device to remain installed on
2-54 each vehicle until the first anniversary of that ending date. If
2-55 the court determines the offender is unable to pay for the device,
2-56 the court may impose a reasonable payment schedule not to extend
2-57 beyond the first anniversary of the date of installation. The
2-58 Department of Public Safety of the State of Texas shall approve
2-59 devices for use under this subsection. Section 521.247,
2-60 Transportation Code, applies to the approval of a device under this
2-61 subsection and the consequences of that approval. Failure to
2-62 comply with an order entered under this subsection is punishable by
2-63 contempt. For the purpose of enforcing this subsection, the court
2-64 that enters an order under this subsection retains jurisdiction
2-65 over the defendant until the date that the device is no longer
2-66 required to remain installed. To the extent of a conflict between
2-67 this subsection and Section 13(i), Article 42.12, Code of Criminal
2-68 Procedure, this subsection controls.
2-69 SECTION 4. Section 521.251, Transportation Code, is amended
3-1 by redesignating existing Subsection (d) as Subsection (e) and
3-2 adding a new Subsection (d) to read as follows:
3-3 (d) Notwithstanding any other provision in this section, if
3-4 the person's driver's license has been suspended as a result of a
3-5 second or subsequent conviction under Section 49.04, 49.07, or
3-6 49.08, Penal Code, committed within five years of the date on which
3-7 the most recent preceding offense was committed, an order granting
3-8 the person an occupational license may not take effect before the
3-9 first anniversary of the effective date of the suspension.
3-10 (e) For the purposes of this section, "alcohol-related or
3-11 drug-related enforcement contact" has the meaning assigned by
3-12 Section 524.001.
3-13 SECTION 5. The section heading to Section 521.344,
3-14 Transportation Code, is amended to read as follows:
3-15 Sec. 521.344. SUSPENSION FOR OFFENSES INVOLVING INTOXICATION
3-16 [RELATED TO USE OF ALCOHOL].
3-17 SECTION 6. Subsections (a), (b), and (d), Section 521.344,
3-18 Transportation Code, are amended to read as follows:
3-19 (a) Except as provided by Sections 521.342(b) and 521.345,
3-20 and by Subsections (d)-(i), if a person is convicted of an offense
3-21 under Section 49.04 or 49.07, Penal Code, [that is committed as a
3-22 result of the introduction of alcohol into the body,] the license
3-23 suspension:
3-24 (1) begins on a date set by the court that is not
3-25 earlier than the date of the conviction or later than the 30th day
3-26 after the date of the conviction, as determined by the court; and
3-27 (2) continues for a period set by the court according
3-28 to the following schedule:
3-29 (A) not less than 90 days or more than one year
3-30 if the person is punished under Section 49.04 or 49.07, Penal Code;
3-31 or
3-32 (B) not less than one year [180 days] or more
3-33 than two years, if the person is punished under Section 49.09,
3-34 Penal Code.
3-35 (b) Except as provided by Section 521.342(b), if a person is
3-36 convicted of an offense under Section 49.08, Penal Code, the
3-37 license suspension [begins]:
3-38 (1) begins on a date set by the court that is not
3-39 earlier than the date of the conviction or later than the 30th day
3-40 after the date of the conviction, as determined by the court; and
3-41 (2) continues for a period set by the court of not
3-42 less than one year [180 days] or more than two years.
3-43 (d) Except as provided by Subsection (e) and Section
3-44 521.342(b), during a period of probation the department may not
3-45 revoke the person's license if the person is required under Section
3-46 13(h) or (j), Article 42.12, Code of Criminal Procedure, to
3-47 successfully complete an educational program designed to
3-48 rehabilitate persons who have operated motor vehicles while
3-49 intoxicated, unless the person was punished under Section 49.09,
3-50 Penal Code. The department may not revoke the license of a person:
3-51 (1) for whom the jury has recommended that the license
3-52 not be revoked under Section 13(g), Article 42.12, Code of Criminal
3-53 Procedure; or
3-54 (2) who is placed under community supervision under
3-55 that article and is required as a condition of community
3-56 supervision to not operate a motor vehicle unless the vehicle is
3-57 equipped with the device described by Section 13(i) of that
3-58 article, unless the person was punished under Section 49.09, Penal
3-59 Code.
3-60 SECTION 7. Subsection (h), Section 9, Article 42.12, Code of
3-61 Criminal Procedure, is amended to read as follows:
3-62 (h) On a determination by the judge that alcohol or drug
3-63 abuse may have contributed to the commission of the offense, or in
3-64 any case involving a second or subsequent offense under Section
3-65 49.04, Penal Code, committed within five years of the date on which
3-66 the most recent preceding offense was committed, or a second or
3-67 subsequent offense under Section 49.07 or 49.08 of that code that
3-68 involves the operation of a motor vehicle, committed within five
3-69 years of the date on which the most recent preceding offense was
4-1 committed, the judge shall direct a supervision officer approved by
4-2 the community supervision and corrections department or the judge
4-3 or a person, program, or other agency approved by the Texas
4-4 Commission on Alcohol and Drug Abuse, to conduct an evaluation to
4-5 determine the appropriateness of, and a course of conduct necessary
4-6 for, alcohol or drug rehabilitation for a defendant and to report
4-7 that evaluation to the judge. The evaluation shall be made:
4-8 (1) after arrest and before conviction, if requested
4-9 by the defendant;
4-10 (2) after conviction and before sentencing, if the
4-11 judge assesses punishment in the case;
4-12 (3) after sentencing and before the entry of a final
4-13 judgment, if the jury assesses punishment in the case; or
4-14 (4) after community supervision is granted, if the
4-15 evaluation is required as a condition of community supervision
4-16 under Section 13 of this article.
4-17 SECTION 8. Subsections (a), (g), and (k), Section 13,
4-18 Article 42.12, Code of Criminal Procedure, are amended to read as
4-19 follows:
4-20 (a) A judge granting community supervision to a defendant
4-21 convicted of an offense under Chapter 49, Penal Code, shall require
4-22 as a condition of community supervision that the defendant submit
4-23 to:
4-24 (1) not less than five [three] days of confinement in
4-25 county jail if the defendant was punished under Section 49.09(a);
4-26 not less than 10 days of confinement in county jail if the
4-27 defendant was punished under Section 49.09(b) or (c); or not less
4-28 than 30 days of confinement in county jail if the defendant was
4-29 convicted under Section 49.07; and
4-30 (2) an evaluation by a supervision officer or by a
4-31 person, program, or facility approved by the Texas Commission on
4-32 Alcohol and Drug Abuse for the purpose of having the facility
4-33 prescribe and carry out a course of conduct necessary for the
4-34 rehabilitation of the defendant's drug or alcohol dependence
4-35 condition.
4-36 (g) A jury that recommends community supervision for a
4-37 person convicted of an offense under Sections 49.04-49.08, Penal
4-38 Code, may recommend that any driver's license issued to the
4-39 defendant under Chapter 521, Transportation Code, not be suspended.
4-40 This subsection does not apply to a person punished under Section
4-41 49.09, Penal Code.
4-42 (k) Notwithstanding Sections 521.344(d)-(i), Transportation
4-43 Code, if the judge, under Subsection (h) or (j) of this section,
4-44 permits or requires a defendant punished under Section 49.09, Penal
4-45 Code, to attend an educational program as a condition of community
4-46 supervision, or waives the required attendance for such a program,
4-47 and the defendant has previously been required to attend such a
4-48 program, or the required attendance at the program had been waived,
4-49 the judge nonetheless shall order the suspension of the driver's
4-50 license, permit, or operating privilege of that person for a period
4-51 determined by the judge according to the following schedule:
4-52 (1) not less than 90 days or more than 365 days, if
4-53 the defendant is convicted under Sections 49.04-49.08, Penal Code;
4-54 or
4-55 (2) not less than one year [180 days] or more than two
4-56 years, if the defendant is punished under Section 49.09, Penal
4-57 Code.
4-58 SECTION 9. (a) Except as provided by Subsection (b) of this
4-59 section, this Act takes effect September 1, 2001.
4-60 (b) If, before September 1, 2001, the attorney general files
4-61 with the secretary of state a certificate certifying the finding by
4-62 the attorney general of a fact described by Subsection (e) or (f),
4-63 Section 49.031, Penal Code, as added by this Act, Section 2 of this
4-64 Act does not take effect until the 30th day after the date the
4-65 attorney general files a subsequent certificate with the secretary
4-66 of state certifying the finding by the attorney general that none
4-67 of the facts described by Subsection (e) or (f), Section 49.031,
4-68 Penal Code, exist.
4-69 (c) The change in law made by Section 3 of this Act applies
5-1 only to a person convicted of an offense involving the operating of
5-2 a motor vehicle on or after September 1, 2001.
5-3 (d) The change in law made by Section 4 of this Act applies
5-4 only to a person who applies for an occupational driver's license
5-5 on or after September 1, 2001.
5-6 (e) The change in law made by Section 6 of this Act applies
5-7 only to the suspension of the driver's license of a person
5-8 convicted of an offense committed on or after September 1, 2001.
5-9 The suspension of the driver's license of a person convicted of an
5-10 offense that was committed before September 1, 2001, is governed by
5-11 the law in effect on the date that the offense was committed, and
5-12 the former law is continued in effect for that purpose.
5-13 (f) The change in law made by Section 7 of this Act applies
5-14 only to an evaluation ordered in relation to an offense committed
5-15 on or after September 1, 2001. An evaluation ordered in relation
5-16 to an offense that was committed before September 1, 2001, is
5-17 governed by the law in effect on the date that the offense was
5-18 committed, and the former law is continued in effect for that
5-19 purpose.
5-20 (g) The changes in law made by Section 8 of this Act apply
5-21 only to a person placed on community supervision for an offense
5-22 committed on or after September 1, 2001. A person placed on
5-23 community supervision for an offense that was committed before
5-24 September 1, 2001, is governed by the law in effect on the date the
5-25 offense was committed, and the former law is continued in effect
5-26 for that purpose.
5-27 (h) For the purposes of this section, an offense was
5-28 committed before September 1, 2001, if any element of the offense
5-29 occurred before that date.
5-30 * * * * *