This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.
78R16382 JD-F
By: Carona S.B. No. 191
Substitute the following for S.B. No. 191:
By: Talton C.S.S.B. No. 191
A BILL TO BE ENTITLED
AN ACT
relating to the suspension or denial of a driver's license
following a failure to pass a test for intoxication and the penalty
for reinstatement or issuance of the license, and to a license
suspension following a refusal to consent to the taking of a blood
or breath specimen to test for alcohol or other intoxicants.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 524, Transportation Code,
is amended to read as follows:
CHAPTER 524. [ADMINISTRATIVE] SUSPENSION OF DRIVER'S LICENSE FOR
FAILURE TO PASS TEST FOR INTOXICATION
SECTION 2. Section 524.002, Transportation Code, is amended
to read as follows:
Sec. 524.002. RULES[; APPLICATION OF ADMINISTRATIVE
PROCEDURE ACT]. [(a)] The department [and the State Office of
Administrative Hearings] shall adopt rules to administer this
chapter.
[(b) Chapter 2001, Government Code, applies to a proceeding
under this chapter to the extent consistent with this chapter.
[(c) The State Office of Administrative Hearings may adopt a
rule that conflicts with Chapter 2001, Government Code, if a
conflict is necessary to expedite the hearings process within the
time required by this chapter and applicable federal funding
guidelines.]
SECTION 3. Section 524.031, Transportation Code, is amended
to read as follows:
Sec. 524.031. PETITION FOR HEARING [REQUEST]. (a) If, not
later than the 15th day after the date on which the person receives
notice of suspension under Section 524.011 or is presumed to have
received notice under Section 524.013, the person files a petition
requesting [department receives at its headquarters in Austin, in
writing, including a facsimile transmission, or by another manner
prescribed by the department, a request] that a hearing be held and,
except as provided by Subsection (d), pays a $35 filing fee, a
hearing shall be held as provided by this subchapter.
(b) A petition under Subsection (a) must be filed in a
county court at law in the county in which the person was arrested
or, if there is not a county court at law in that county, in the
county court.
(c) A person who files a petition under Subsection (a) shall
send a copy of the petition by certified mail to the department at
the department's headquarters in Austin. The copy sent to the
department must be certified by the clerk of the court in which the
petition is filed.
(d) A person who files an affidavit of indigency with the
person's petition is not required to pay the filing fee required by
Subsection (a).
(e) Filing fees collected under Subsection (a) shall be
deposited to the credit of the general fund of the county.
SECTION 4. Section 524.032, Transportation Code, is amended
to read as follows:
Sec. 524.032. HEARING; HEARING DATE[; RESCHEDULING]. (a)
A hearing under this subchapter shall be conducted by the judge of
the court in which the criminal charge against the person under
Section 49.04, 49.07, or 49.08, Penal Code, or Section 106.041,
Alcoholic Beverage Code, arising from the occurrence that is the
basis of the suspension is pending.
(b) A hearing [requested] under this subchapter shall be
held before the effective date of the suspension [not earlier than
the 11th day after the date on which the person requesting the
hearing is notified of the hearing] unless the parties agree to
waive this requirement. [The hearing shall be held before the
effective date of the suspension.
[(b) A hearing shall be rescheduled if, before the fifth day
before the date scheduled for the hearing, the department receives
a request for a continuance from the person who requested the
hearing. Unless both parties agree otherwise, the hearing shall be
rescheduled for a date not earlier than the fifth day after the date
the department receives the request for the continuance.]
(c) [A person who requests a hearing under this chapter may
obtain only one continuance under this section unless the person
shows that a medical condition prevents the person from attending
the rescheduled hearing, in which event one additional continuance
may be granted for a period not to exceed 10 days.
[(d)] A request for a hearing stays suspension of a person's
driver's license until the date of the final decision of the
[administrative law] judge. If the person's driver's license was
taken by a peace officer under Section 524.011(b), the department
shall notify the person of the effect of the request on the
suspension of the person's license before the expiration of any
temporary driving permit issued to the person, if the person is
otherwise eligible, in a manner that will permit the person to
establish to a peace officer that the person's driver's license is
not suspended.
SECTION 5. Section 524.035, Transportation Code, is amended
to read as follows:
Sec. 524.035. ISSUES AT HEARING. (a) The issues that must
be proved at a hearing by a preponderance of the evidence are:
(1) whether:
(A) the person had an alcohol concentration of a
level specified by Section 49.01(2)(B), Penal Code, while operating
a motor vehicle in a public place; or
(B) the person is a minor and had any detectable
amount of alcohol in the minor's system while operating a motor
vehicle in a public place; and
(2) whether reasonable suspicion to stop or probable
cause to arrest the person existed.
(b) If the [administrative law] judge finds in the
affirmative on each issue in Subsection (a), the suspension is
sustained.
(c) If the [administrative law] judge does not find in the
affirmative on each issue in Subsection (a), the department shall:
(1) return the person's driver's license to the
person, if the license was taken by a peace officer under Section
524.011(b);
(2) reinstate the person's driver's license; and
(3) rescind an order prohibiting the issuance of a
driver's license to the person.
(d) The [An administrative law] judge may not find in the
affirmative on the issue in Subsection (a)(1) if:
(1) the person is an adult and the analysis of the
person's breath or blood determined that the person had an alcohol
concentration of a level below that specified by Section 49.01,
Penal Code, at the time the specimen was taken; or
(2) the person is a minor and the [administrative law]
judge does not find that the minor had any detectable amount of
alcohol in the minor's system when the minor was arrested.
(e) The decision of the [administrative law] judge is final
when issued and signed.
SECTION 6. Sections 524.037(a) and (b), Transportation
Code, are amended to read as follows:
(a) If the judge grants a continuance in the proceedings,
the [A] continuance [under Section 524.032] stays the suspension of
a driver's license until the date of the final decision of the
[administrative law] judge.
(b) A suspension order may not go into effect pending a
final decision of the [administrative law] judge as a result of a
continuance granted under Section 524.039.
SECTION 7. Section 524.039(b), Transportation Code, is
amended to read as follows:
(b) The judge [department] may reschedule a hearing once not
less than 48 hours before the hearing if the person requested to
attend under Subsection (a) is unavailable. The judge [department]
may also reschedule the hearing if the department establishes [on
showing good cause] that the person requested under Subsection (a)
is not available at the time of the scheduled hearing.
SECTION 8. Section 524.041, Transportation Code, is amended
to read as follows:
Sec. 524.041. APPEAL FROM [ADMINISTRATIVE] HEARING. (a)
The department or the [A] person whose driver's license suspension
is sustained may appeal the judge's decision as in other civil cases
[by filing a petition not later than the 30th day after the date the
administrative law judge's decision is final]. The [administrative
law] judge's final decision is immediately appealable without the
requirement of a motion for rehearing.
(b) [A petition under Subsection (a) must be filed in a
county court at law in the county in which the person was arrested
or, if there is not a county court at law in the county, in the
county court. If the county judge is not a licensed attorney, the
county judge shall transfer the case to a district court for the
county on the motion of either party or of the judge.
[(c) A person who files an appeal under this section shall
send a copy of the petition by certified mail to the department and
to the State Office of Administrative Hearings at each agency's
headquarters in Austin. The copy must be certified by the clerk of
the court in which the petition is filed.
[(d)] The department's right to appeal is limited to issues
of law.
(c) [(e)] A district or county attorney may represent the
department in an appeal.
SECTION 9. Section 524.042, Transportation Code, is amended
to read as follows:
Sec. 524.042. STAY OF SUSPENSION ON APPEAL. (a) A
suspension of a driver's license under this chapter is stayed on the
filing of an appeal under Section 524.041 [petition] only if:
(1) the person's driver's license has not been
suspended as a result of an alcohol-related or drug-related
enforcement contact during the five years preceding the date of the
person's arrest; and
(2) the person has not been convicted during the 10
years preceding the date of the person's arrest of an offense under:
(A) Article 6701l-1, Revised Statutes, as that
law existed before September 1, 1994;
(B) Section 19.05(a)(2), Penal Code, as that law
existed before September 1, 1994;
(C) Section 49.04, Penal Code;
(D) Section 49.07 or 49.08, Penal Code, if the
offense involved the operation of a motor vehicle; or
(E) Section 106.041, Alcoholic Beverage Code.
(b) A stay under this section is effective for not more than
90 days after the date the appeal [petition] is filed. On the
expiration of the stay, the department shall impose the suspension.
The department or the appellate court may not grant an extension of
the stay or an additional stay.
SECTION 10. Section 524.051, Transportation Code, is
amended by amending Subsection (b) and adding Subsection (c) to
read as follows:
(b) The payment of a reinstatement fee is not required if a
suspension under this chapter is:
(1) rescinded by the department; or
(2) not sustained by the [an administrative law] judge
holding a hearing, or a court on appeal.
(c) If the person was arrested in a county that maintains a
certified breath alcohol testing program but does not use the
services of a certified technical supervisor employed by the
department, of each penalty collected under Subsection (a), the
department shall remit $15 to the treasurer of that county. Money
received by a county under this subsection may be used only to
defray the costs incurred by the county for the use of the services
of a certified technical supervisor employed by the county in
connection with the enforcement of this chapter.
SECTION 11. Section 724.003, Transportation Code, is
amended to read as follows:
Sec. 724.003. RULEMAKING. The department [and the State
Office of Administrative Hearings] shall adopt rules to administer
this chapter.
SECTION 12. Section 724.015, Transportation Code, is
amended to read as follows:
Sec. 724.015. INFORMATION PROVIDED BY OFFICER BEFORE
REQUESTING SPECIMEN. Before requesting a person to submit to the
taking of a specimen, the officer shall inform the person orally and
in writing that:
(1) if the person refuses to submit to the taking of
the specimen, that refusal may be admissible in a subsequent
prosecution;
(2) if the person refuses to submit to the taking of
the specimen, the person's license to operate a motor vehicle will
be automatically suspended, whether or not the person is
subsequently prosecuted as a result of the arrest, for not less than
180 days;
(3) if the person is 21 years of age or older and
submits to the taking of a specimen designated by the officer and an
analysis of the specimen shows the person had an alcohol
concentration of a level specified by Chapter 49, Penal Code, the
person's license to operate a motor vehicle will be automatically
suspended for not less than 90 days, whether or not the person is
subsequently prosecuted as a result of the arrest;
(4) if the person is younger than 21 years of age and
has any detectable amount of alcohol in the person's system, the
person's license to operate a motor vehicle will be automatically
suspended for not less than 60 days even if the person submits to
the taking of the specimen, but that if the person submits to the
taking of the specimen and an analysis of the specimen shows that
the person had an alcohol concentration less than the level
specified by Chapter 49, Penal Code, the person may be subject to
criminal penalties less severe than those provided under that
chapter;
(5) if the officer determines that the person is a
resident without a license to operate a motor vehicle in this state,
the department will deny to the person the issuance of a license,
whether or not the person is subsequently prosecuted as a result of
the arrest, under the same conditions and for the same periods that
would have applied to a revocation of the person's driver's license
if the person had held a driver's license issued by this state; and
(6) the person has a right to a hearing on the
suspension or denial if, not later than the 15th day after the date
on which the person receives the notice of suspension or denial or
on which the person is considered to have received the notice by
mail as provided by law, the person files a petition requesting a
hearing in a county court at law in the county in which the person
was arrested or, if there is not a county court at law in that
county, in the county court [department receives, at its
headquarters in Austin, a written demand, including a facsimile
transmission, or a request in another form prescribed by the
department for the hearing].
SECTION 13. Section 724.034, Transportation Code, is
amended to read as follows:
Sec. 724.034. CONTENTS OF NOTICE OF SUSPENSION OR DENIAL OF
LICENSE. A notice of suspension or denial of a license must state:
(1) the reason and statutory grounds for the action;
(2) the effective date of the suspension or denial;
(3) the right of the person to a hearing;
(4) how to request a hearing; and
(5) the period in which a petition requesting [request
for] a hearing must be filed in a county court at law or county court
[received by the department].
SECTION 14. Section 724.041, Transportation Code, is
amended by amending Subsections (a), (b), (c), and (g) and adding
Subsections (a-1), (a-2), and (a-3) to read as follows:
(a) If, not later than the 15th day after the date on which
the person receives notice of suspension or denial under Section
724.032(a) or is considered to have received notice under Section
724.033, the person files a petition requesting [department
receives at its headquarters in Austin, in writing, including a
facsimile transmission, or by another manner prescribed by the
department, a request] that a hearing be held, [the State Office of
Administrative Hearings shall hold] a hearing shall be held as
provided by this subchapter.
(a-1) A petition under Subsection (a) must be filed in a
county court at law in the county in which the person was arrested
or, if there is not a county court at law in that county, in the
county court.
(a-2) A person who files a petition under Subsection (a)
shall send a copy of the petition by certified mail to the
department at the department's headquarters in Austin. The copy
sent to the department must be certified by the clerk of the court
in which the petition is filed.
(a-3) A hearing under this subchapter shall be conducted by
the judge of the court in which the criminal charge against the
person under Section 49.04, 49.07, or 49.08, Penal Code, or Section
106.041, Alcoholic Beverage Code, arising from the occurrence that
is the basis of the suspension is pending.
(b) A hearing under this subchapter shall be held before the
effective date of the suspension [not earlier than the 11th day
after the date the person is notified,] unless the parties agree to
waive this requirement[, but before the effective date of the
notice of suspension or denial].
(c) A request for a hearing stays the suspension or denial
until the date of the final decision of the [administrative law]
judge. If the person's license was taken by a peace officer under
Section 724.032(a), the department shall notify the person of the
effect of the request on the suspension of the person's license
before the expiration of any temporary driving permit issued to the
person, if the person is otherwise eligible, in a manner that will
permit the person to establish to a peace officer that the person's
license is not suspended.
(g) [An administrative hearing under this section is
governed by] Sections [524.032(b) and (c),] 524.035(e),
524.037(a), and 524.040 apply to a hearing under this subchapter.
SECTION 15. Section 724.043, Transportation Code, is
amended to read as follows:
Sec. 724.043. FINDINGS OF [ADMINISTRATIVE LAW] JUDGE. (a)
If the [administrative law] judge finds in the affirmative on each
issue under Section 724.042, the suspension order is sustained. If
the person is a resident without a license, the department shall
continue to deny to the person the issuance of a license for the
applicable period provided by Section 724.035.
(b) If the [administrative law] judge does not find in the
affirmative on each issue under Section 724.042, the department
shall return the person's license to the person, if the license was
taken by a peace officer under Section 724.032(a), and reinstate
the person's license or rescind any order denying the issuance of a
license because of the person's refusal to submit to the taking of a
specimen under Section 724.032(a).
SECTION 16. Section 724.046(b), Transportation Code, is
amended to read as follows:
(b) If a suspension or denial under this chapter is
rescinded by the department, a [an administrative law] judge
conducting a hearing under this subchapter, or a court on appeal,
payment of the fee under this section is not required for
reinstatement or issuance of a license.
SECTION 17. Section 724.047, Transportation Code, is
amended to read as follows:
Sec. 724.047. APPEAL. Chapter 524 governs an appeal from an
action of the department, following a [an administrative] hearing
under this chapter, in suspending or denying the issuance of a
license.
SECTION 18. The heading to Section 724.048, Transportation
Code, is amended to read as follows:
Sec. 724.048. RELATIONSHIP OF DETERMINATION
[ADMINISTRATIVE PROCEEDING] TO CRIMINAL PROCEEDING.
SECTION 19. Section 724.048(a), Transportation Code, is
amended to read as follows:
(a) The determination of the department, a [or
administrative law] judge, or an appellate court under this
subchapter:
(1) is a civil matter;
(2) is independent of and is not an estoppel as to any
matter in issue in an adjudication of a criminal charge arising from
the occurrence that is the basis for the suspension or denial; and
(3) does not preclude litigation of the same or
similar facts in a criminal prosecution.
SECTION 20. Sections 524.033, 524.034, 524.037(c),
524.043, 524.044, and 724.041(d), (e), and (f), Transportation
Code, are repealed.
SECTION 21. (a) This Act takes effect January 1, 2004.
(b) Chapters 524 and 724, Transportation Code, as amended by
this Act, apply only to a person arrested for an offense described
by Section 524.011 or 724.011 of that code on or after the effective
date of this Act.
(c) A person arrested for an offense described by Section
524.011 or 724.011, Transportation Code, before the effective date
of this Act is covered by the law in effect on the date the person
was arrested.
(d) An administrative proceeding brought under Chapter 524
or 724, Transportation Code, before the effective date of this Act,
or an appeal from an administrative proceeding brought under those
chapters, that is pending on the effective date of this Act is
governed by the law in effect on the date the administrative
proceeding or the appeal was brought, and the former law is
continued in effect for that purpose.