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                                  * * * * *