|
|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to defendant's eligibility to be placed on deferred |
|
adjudication for certain intoxication offenses and to the |
|
consequences of that deferred adjudication. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Section 5(d), Article 42.12, Code of Criminal |
|
Procedure, is amended to read as follows: |
|
(d) In all other cases the judge may grant deferred |
|
adjudication unless: |
|
(1) the defendant is charged with an offense: |
|
(A) under Section [49.04, 49.05, 49.06,] |
|
49.07[,] or 49.08, Penal Code, or for which punishment may be |
|
increased under Section 49.09 of that code; or |
|
(B) for which punishment may be increased under |
|
Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it |
|
is shown that the defendant has been previously convicted of an |
|
offense for which punishment was increased under any one of those |
|
subsections; or |
|
(2) the defendant: |
|
(A) is charged with an offense under Section |
|
21.11, 22.011, or 22.021, Penal Code, regardless of the age of the |
|
victim, or a felony described by Section 13B(b) of this article; and |
|
(B) has previously been placed on community |
|
supervision for any offense under Paragraph (A) of this |
|
subdivision. |
|
SECTION 2. Article 42.12, Section 13 (i), Code of Criminal |
|
Procedure, is amended to read as follows: |
|
(i) If a person convicted of an offense under Sections |
|
49.04-49.08, Penal Code, is placed on community supervision, the |
|
court may require as a condition of community supervision that the |
|
defendant have a device installed, on the motor vehicle owned by the |
|
defendant or on the vehicle most regularly driven by the defendant, |
|
that uses a deep-lung breath analysis mechanism to make impractical |
|
the operation of the motor vehicle if ethyl alcohol is detected in |
|
the breath of the operator and that the defendant not operate any |
|
motor vehicle that is not equipped with that device. If it is shown |
|
at the time of the trial of the offense that an analysis of a |
|
specimen of the person's blood, breath, or urine showed an alcohol |
|
concentration level of 0.15 or more at the time the analysis was |
|
performed, or if the person is convicted of an offense under |
|
Sections 49.04-49.06, Penal Code, and punished under Section |
|
49.09(a) or (b), Penal Code, or of a second or subsequent offense |
|
under Section 49.07 or 49.08, Penal Code, and the person after |
|
conviction of either offense is placed on community supervision, |
|
including deferred adjudication, the court shall require as a |
|
condition of community supervision that the defendant have the |
|
device installed on the appropriate vehicle and that the defendant |
|
not operate any motor vehicle unless the vehicle is equipped with |
|
that device. Before placing on community supervision a person |
|
convicted of an offense under Sections 49.04-49.08, Penal Code, the |
|
court shall determine from criminal history record information |
|
maintained by the Department of Public Safety whether the person |
|
has one or more previous convictions under Sections 49.04-49.08, |
|
Penal Code, or has one previous conviction under Sections |
|
49.04-49.07, Penal Code, or one previous conviction under Section |
|
49.08, Penal Code. If it is shown on the trial of the offense that |
|
an analysis of a specimen of the person's blood, breath, or urine |
|
showed an alcohol concentration level of 0.15 or more at the time |
|
the analysis was performed, or if the court determines that the |
|
person has one or more such previous convictions, the court shall |
|
require as a condition of community supervision that the defendant |
|
have that device installed on the motor vehicle owned by the |
|
defendant or on the vehicle most regularly driven by the defendant |
|
and that the defendant not operate any motor vehicle unless the |
|
vehicle is equipped with the device described in this subsection. |
|
The court shall require the defendant to obtain the device at the |
|
defendant's own cost before the 30th day after the date of |
|
conviction unless the court finds that to do so would not be in the |
|
best interest of justice and enters its findings on record. The |
|
court shall require the defendant to provide evidence to the court |
|
within the 30-day period that the device has been installed on the |
|
appropriate vehicle and order the device to remain installed on |
|
that vehicle for a period not less than 50 percent of the |
|
supervision period. If the court determines the offender is unable |
|
to pay for the device, the court may impose a reasonable payment |
|
schedule not to exceed twice the period of the court's order. The |
|
Department of Public Safety shall approve devices for use under |
|
this subsection. Section 521.247, Transportation Code, applies to |
|
the approval of a device under this subsection and the consequences |
|
of that approval. Notwithstanding the provisions of this section, |
|
if a person is required to operate a motor vehicle in the course and |
|
scope of the person's employment and if the vehicle is owned by the |
|
employer, the person may operate that vehicle without installation |
|
of an approved ignition interlock device if the employer has been |
|
notified of that driving privilege restriction and if proof of that |
|
notification is with the vehicle. This employment exemption does |
|
not apply, however, if the business entity that owns the vehicle is |
|
owned or controlled by the person whose driving privilege has been |
|
restricted. A previous conviction may not be used for purposes of |
|
restricting a person to the operation of a motor vehicle equipped |
|
with an interlock ignition device under this subsection if: |
|
(1) the previous conviction was a final conviction |
|
under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08, Penal |
|
Code, and was for an offense committed more than 10 years before the |
|
instant offense for which the person was convicted and placed on |
|
community supervision; and |
|
(2) the person has not been convicted of an offense |
|
under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 of that |
|
code, committed within 10 years before the date on which the instant |
|
offense for which the person was convicted and placed on community |
|
supervision. |
|
SECTION 3. Section 411.081(e), Government Code, is amended |
|
to read as follows: |
|
(e) A person is entitled to petition the court under |
|
Subsection (d) only if during the applicable period described by |
|
Subsection (d)(1), (2), or (3), as appropriate, the person is not |
|
convicted of or placed on deferred adjudication community |
|
supervision under Section 5, Article 42.12, Code of Criminal |
|
Procedure, for any offense other than an offense under the |
|
Transportation Code punishable by fine only. A person is not |
|
entitled to petition the court under Subsection (d) if the person |
|
has been previously convicted or placed on deferred adjudication |
|
for: |
|
(1) an offense requiring registration as a sex |
|
offender under Chapter 62, Code of Criminal Procedure; |
|
(2) an offense under Section 20.04, Penal Code, |
|
regardless of whether the offense is a reportable conviction or |
|
adjudication for purposes of Chapter 62, Code of Criminal |
|
Procedure; |
|
(3) an offense under Section 19.02, 19.03, 22.04, |
|
22.041, 25.07, or 42.072, Penal Code; [or] |
|
(4) any other offense involving family violence, as |
|
defined by Section 71.004, Family Code; or |
|
(5) an offense under Chapter 49, Penal Code, other |
|
than an offense that is punishable as a Class C misdemeanor. |
|
SECTION 4. Sections 49.09(a), (b), (d), and (g), Penal |
|
Code, are amended to read as follows: |
|
(a) Except as provided by Subsection (b), an offense under |
|
Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, |
|
with a minimum term of confinement of 30 days, if it is shown on the |
|
trial of the offense that the person has been one time previously |
|
been] convicted of or placed on deferred adjudication for [one time
|
|
of] an offense relating to the operating of a motor vehicle while |
|
intoxicated, an offense of operating an aircraft while intoxicated, |
|
an offense of operating a watercraft while intoxicated, or an |
|
offense of operating or assembling an amusement ride while |
|
intoxicated. |
|
(b) An offense under Section 49.04, 49.045, 49.05, 49.06, or |
|
49.065 is a felony of the third degree if it is shown on the trial of |
|
the offense that the person has been [previously been convicted]: |
|
(1) one time previously convicted of or placed on |
|
deferred adjudication for an offense under Section 49.08 or an |
|
offense under the laws of another state if the offense contains |
|
elements that are substantially similar to the elements of an |
|
offense under Section 49.08; or |
|
(2) two times previously convicted of or placed on |
|
deferred adjudication for any other offense relating to the |
|
operating of a motor vehicle while intoxicated, operating an |
|
aircraft while intoxicated, operating a watercraft while |
|
intoxicated, or operating or assembling an amusement ride while |
|
intoxicated. |
|
(d) For the purposes of this section, a conviction for an |
|
offense listed in Subsection (c) [under Section 49.04, 49.045,
|
|
49.05, 49.06, 49.065, 49.07, or 49.08] that occurs on or after |
|
September 1, 1994, is a final conviction, whether the sentence for |
|
the conviction is imposed or probated. |
|
(g) A conviction or deferred adjudication may be used for |
|
purposes of enhancement under this section or enhancement under |
|
Subchapter D, Chapter 12, but not under both this section and |
|
Subchapter D. |
|
SECTION 5. The changes in law made by this Act apply only to |
|
an offense committed on or after the effective date of this Act. An |
|
offense committed before the effective date of this Act is governed |
|
by the law in effect when the offense was committed, and the former |
|
law is continued in effect for that purpose. For purposes of this |
|
section, an offense was committed before the effective date of this |
|
Act if any element of the offense was committed before that date. |
|
SECTION 6. This Act takes effect September 1, 2009. |