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A BILL TO BE ENTITLED
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AN ACT
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relating to restricting persons who refuse to submit a breath |
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specimen to the operation of a vehicle equipped with an ignition |
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interlock device. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 724.001, Transportation Code, is amended |
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by adding Subdivision (8-a) to read as follows: |
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(8-a) "Ignition interlock device" has the meaning |
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assigned by Section 521.241(2). |
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SECTION 2. Section 724.002, Transportation Code, is amended |
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to read as follows: |
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Sec. 724.002. APPLICABILITY. The provisions of this |
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chapter that apply to the restriction or suspension of a license for |
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refusal to submit to the taking of a specimen (Sections 724.013, |
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724.015, and 724.048 and Subchapters C and D) apply only to a person |
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arrested for an offense involving the operation of a motor vehicle |
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or watercraft powered with an engine having a manufacturer's rating |
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of 50 horsepower or above. |
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SECTION 3. Section 724.015, Transportation Code, is amended |
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to read as follows: |
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Sec. 724.015. INFORMATION PROVIDED BY OFFICER BEFORE |
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REQUESTING SPECIMEN. Before requesting a person to submit to the |
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taking of a specimen, the officer shall inform the person orally and |
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in writing that: |
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(1) if the person refuses to submit to the taking of |
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the specimen, that refusal may be admissible in a subsequent |
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prosecution; |
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(2) if the person refuses to submit to the taking of |
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the specimen, the person's license to operate a motor vehicle may |
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[will] be automatically suspended, whether or not the person is |
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subsequently prosecuted as a result of the arrest, for not less than |
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180 days; |
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(3) if the person refuses to submit to the taking of |
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the specimen, the person may be restricted to the operation of a |
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motor vehicle equipped with an ignition interlock device for 180 |
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days, whether or not the person is subsequently prosecuted as a |
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result of the arrest; |
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(4) if the person is 21 years of age or older and |
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submits to the taking of a specimen designated by the officer and an |
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analysis of the specimen shows the person had an alcohol |
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concentration of a level specified by Chapter 49, Penal Code, the |
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person's license to operate a motor vehicle will be automatically |
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suspended for not less than 90 days, whether or not the person is |
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subsequently prosecuted as a result of the arrest; |
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(5) [(4)] if the person is younger than 21 years of age |
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and has any detectable amount of alcohol in the person's system, the |
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person's license to operate a motor vehicle will be automatically |
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suspended for not less than 60 days even if the person submits to |
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the taking of the specimen, but that if the person submits to the |
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taking of the specimen and an analysis of the specimen shows that |
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the person had an alcohol concentration less than the level |
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specified by Chapter 49, Penal Code, the person may be subject to |
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criminal penalties less severe than those provided under that |
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chapter; |
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(6) [(5)] if the officer determines that the person is |
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a resident without a license to operate a motor vehicle in this |
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state, the department will deny to the person the issuance of a |
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license, whether or not the person is subsequently prosecuted as a |
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result of the arrest, under the same conditions and for the same |
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periods that would have applied to a revocation of the person's |
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driver's license if the person had held a driver's license issued by |
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this state; and |
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(7) [(6)] the person has a right to a hearing on the |
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license restriction, suspension, or denial if, not later than the |
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15th day after the date on which the person receives the notice of |
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restriction, suspension, or denial or on which the person is |
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considered to have received the notice by mail as provided by law, |
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the department receives, at its headquarters in Austin, a written |
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demand, including a facsimile transmission, or a request in another |
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form prescribed by the department for the hearing. |
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SECTION 4. The heading to Section 724.032, Transportation |
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Code, is amended to read as follows: |
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Sec. 724.032. OFFICER'S DUTIES FOR LICENSE RESTRICTION, |
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SUSPENSION, OR DENIAL; WRITTEN REFUSAL REPORT. |
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SECTION 5. Subsections (a), (c), and (d), Section 724.032, |
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Transportation Code, are amended to read as follows: |
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(a) If a person refuses to submit to the taking of a |
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specimen, whether expressly or because of an intentional failure of |
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the person to give the specimen, the peace officer shall: |
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(1) serve on the person notice of license suspension |
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or denial or of restriction to the use of an ignition interlock |
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device [on the person]; |
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(2) take possession of any license issued by this |
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state and held by the person arrested; |
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(3) issue a temporary driving permit to the person |
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unless department records show or the officer otherwise determines |
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that the person does not hold a license to operate a motor vehicle |
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in this state; and |
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(4) make a written report of the refusal to the |
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director of the department. |
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(c) The officer shall forward to the department not later |
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than the fifth business day after the date of the arrest: |
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(1) a copy of the notice of license restriction, |
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suspension, or denial; |
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(2) any license taken by the officer under Subsection |
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(a); |
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(3) a copy of any temporary driving permit issued |
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under Subsection (a); and |
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(4) a copy of the refusal report. |
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(d) The department shall develop forms for notices of |
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license restriction, suspension, or denial and for temporary |
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driving permits to be used by all state and local law enforcement |
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agencies. |
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SECTION 6. Section 724.033, Transportation Code, is amended |
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to read as follows: |
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Sec. 724.033. ISSUANCE BY DEPARTMENT OF NOTICE OF LICENSE |
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RESTRICTION, SUSPENSION, OR DENIAL [OF LICENSE]. (a) On receipt |
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of a report of a peace officer under Section 724.032, if the officer |
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did not serve notice of license restriction, suspension, or denial |
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[of a license] at the time of refusal to submit to the taking of a |
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specimen, the department shall mail notice of the restriction, |
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suspension, or denial, by first class mail, to the address of the |
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person shown by the records of the department or to the address |
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given in the peace officer's report, if different. |
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(b) Notice is considered received on the fifth day after the |
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date it is mailed. |
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SECTION 7. Section 724.034, Transportation Code, is amended |
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to read as follows: |
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Sec. 724.034. CONTENTS OF NOTICE OF LICENSE RESTRICTION, |
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SUSPENSION, OR DENIAL [OF LICENSE]. A notice of license |
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restriction, suspension, or denial [of a license] must state: |
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(1) the reason and statutory grounds for the action; |
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(2) the effective date of the restriction, suspension, |
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or denial; |
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(3) the right of the person to a hearing; |
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(4) how to request a hearing; and |
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(5) the period in which a request for a hearing must be |
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received by the department. |
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SECTION 8. Section 724.035, Transportation Code, is amended |
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to read as follows: |
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Sec. 724.035. SUSPENSION OR DENIAL OF LICENSE; RESTRICTION |
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TO USE OF IGNITION INTERLOCK DEVICE. (a) If a person refuses the |
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request of a peace officer to submit to the taking of a specimen, |
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the department shall: |
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(1) restrict the person to the operation of a motor |
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vehicle equipped with an ignition interlock device for 180 days; or |
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(2) suspend the person's license to operate a motor |
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vehicle on a public highway for 180 days[;] or, |
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[(2)] if the person is a resident without a license, |
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issue an order denying the issuance of a license to the person for |
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180 days. |
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(b) If [The period of suspension or denial is two years if] |
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the person's driving record shows one or more alcohol-related or |
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drug-related enforcement contacts, as defined by Section |
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524.001(3), during the 10 years preceding the date of the person's |
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arrest, the person shall be restricted to the operation of a motor |
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vehicle equipped with an ignition interlock device for one year. |
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(c) A license restriction, suspension, or denial takes |
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effect on the 40th day after the date on which the person: |
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(1) receives notice of the restriction, suspension, or |
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denial under Section 724.032(a); or |
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(2) is considered to have received notice of the |
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restriction, suspension, or denial under Section 724.033. |
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SECTION 9. The heading to Section 724.041, Transportation |
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Code, is amended to read as follows: |
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Sec. 724.041. HEARING ON RESTRICTION, SUSPENSION, OR |
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DENIAL. |
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SECTION 10. Subsections (a), (b), and (c), Section 724.041, |
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Transportation Code, are amended to read as follows: |
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(a) If, not later than the 15th day after the date on which |
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the person receives notice of a license restriction, suspension, or |
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denial under Section 724.032(a) or is considered to have received |
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notice under Section 724.033, the department receives at its |
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headquarters in Austin, in writing, including a facsimile |
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transmission, or by another manner prescribed by the department, a |
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request that a hearing be held, the State Office of Administrative |
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Hearings shall hold a hearing. |
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(b) A hearing shall be held not earlier than the 11th day |
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after the date the person is notified, unless the parties agree to |
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waive this requirement, but before the effective date of the notice |
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of the license restriction, suspension, or denial. |
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(c) A request for a hearing stays the license restriction, |
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suspension, or denial until the date of the final decision of the |
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administrative law judge. If the person's license was taken by a |
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peace officer under Section 724.032(a), the department shall notify |
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the person of the effect of the request on the restriction or |
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suspension of the person's license before the expiration of any |
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temporary driving permit issued to the person, if the person is |
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otherwise eligible, in a manner that will permit the person to |
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establish to a peace officer that the person's license is not |
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restricted or suspended. |
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SECTION 11. Section 724.043, Transportation Code, is |
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amended to read as follows: |
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Sec. 724.043. FINDINGS OF ADMINISTRATIVE LAW JUDGE. |
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(a) If the administrative law judge finds in the affirmative on |
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each issue under Section 724.042, the restriction or suspension |
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order is sustained. If the person is a resident without a license, |
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the department shall continue to deny to the person the issuance of |
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a license for the applicable period provided by Section 724.035. |
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(b) If the administrative law judge does not find in the |
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affirmative on each issue under Section 724.042, the department |
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shall return the person's license to the person, if the license was |
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taken by a peace officer under Section 724.032(a), and remove the |
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restriction, reinstate the person's license, or rescind any order |
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denying the issuance of a license because of the person's refusal to |
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submit to the taking of a specimen under Section 724.032(a). |
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SECTION 12. Section 724.044, Transportation Code, is |
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amended to read as follows: |
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Sec. 724.044. WAIVER OF RIGHT TO HEARING. A person waives |
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the right to a hearing under this subchapter and the department's |
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license restriction, suspension, or denial is final and may not be |
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appealed if the person: |
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(1) fails to request a hearing under Section 724.041; |
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or |
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(2) requests a hearing and fails to appear, without |
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good cause. |
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SECTION 13. Section 724.046, Transportation Code, is |
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amended to read as follows: |
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Sec. 724.046. REMOVAL OF LICENSE RESTRICTION, |
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REINSTATEMENT OF LICENSE, OR ISSUANCE OF NEW LICENSE. (a) A |
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license restricted or suspended under this chapter may not be |
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reinstated or a new license issued until the person whose license |
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has been restricted or suspended pays to the department a fee of |
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$125 in addition to any other fee required by law. A person subject |
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to a denial order issued under this chapter may not obtain a license |
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after the period of denial has ended until the person pays to the |
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department a fee of $125 in addition to any other fee required by |
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law. |
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(b) If a license restriction, suspension, or denial under |
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this chapter is rescinded by the department, an administrative law |
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judge, or a court, payment of the fee under this section is not |
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required for removal of the restriction or the reinstatement or |
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issuance of a license. |
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(c) Each fee collected under this section shall be deposited |
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to the credit of the Texas mobility fund. |
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SECTION 14. Section 724.047, Transportation Code, is |
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amended to read as follows: |
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Sec. 724.047. APPEAL. Chapter 524 governs an appeal from an |
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action of the department, following an administrative hearing under |
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this chapter, in restricting, suspending, or denying the issuance |
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of a license. |
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SECTION 15. Section 724.048, Transportation Code, is |
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amended to read as follows: |
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Sec. 724.048. RELATIONSHIP OF ADMINISTRATIVE PROCEEDING TO |
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CRIMINAL PROCEEDING. (a) The determination of the department or |
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administrative law judge: |
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(1) is a civil matter; |
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(2) is independent of and is not an estoppel as to any |
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matter in issue in an adjudication of a criminal charge arising from |
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the occurrence that is the basis for the license restriction, |
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suspension, or denial; and |
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(3) does not preclude litigation of the same or |
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similar facts in a criminal prosecution. |
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(b) Except as provided by Subsection (c), the disposition of |
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a criminal charge does not affect a license restriction, |
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suspension, or denial under this chapter and is not an estoppel as |
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to any matter in issue in a restriction, suspension, or denial |
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proceeding under this chapter. |
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(c) If a criminal charge arising from the same arrest as a |
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license restriction or suspension under this chapter results in an |
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acquittal, the restriction or suspension under this chapter may not |
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be imposed. If a restriction or suspension under this chapter has |
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already been imposed, the department shall rescind the restriction |
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or suspension and remove references to the restriction or |
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suspension from the computerized driving record of the individual. |
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SECTION 16. (a) The changes in law made by this Act apply |
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only to a refusal to submit to the taking of a breath specimen on or |
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after the effective date of this Act. A refusal to submit to the |
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taking of a breath specimen that occurs before the effective date of |
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this Act is covered by the law in effect when the refusal was made, |
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and the former law is continued in effect for that purpose. |
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(b) The Department of Public Safety of the State of Texas |
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shall adopt rules to administer the imposition of the use of an |
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ignition interlock device under the provisions of this Act. |
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SECTION 17. This Act takes effect September 1, 2007. |