By: Smith of Tarrant, Callegari, Vo, Merritt, H.B. No. 4061

Harless, et al.

A BILL TO BE ENTITLED

AN ACT

relating to the consequences of an arrest for or conviction of certain intoxication offenses.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act shall be known as the Todd Levin-Lilly Lalime Memorial Act.

SECTION 2. Article 17.441(c), Code of Criminal Procedure, is amended to read as follows:

(c) If the defendant is required to have the device installed, the magistrate shall require that the defendant have the device installed on the appropriate motor vehicle, at the defendant's expense, not later than the 10th [before the 30th] day after the date the defendant is released on bond.

SECTION 3. 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 49.07 or 49.08 [Sections 49.04-49.08], Penal Code; [or]

(B) under Section 49.04, 49.045, 49.05, 49.06, or 49.065, Penal Code, and, at the time of the offense, the defendant:

(i) held a commercial driver's license or a commercial driver learner's permit; or

(ii) was driving a commercial vehicle;

(C) for which punishment may be increased under Section 49.09, Penal Code; or

(D) 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;

(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; or

(3) the defendant is charged with an offense under:

(A) Section 21.02, Penal Code; or

(B) Section 22.021, Penal Code, that is punishable under Subsection (f) of that section or under Section 12.42(c)(3), Penal Code.

SECTION 4. Sections 13(i) and (n), Article 42.12, Code of Criminal Procedure, are 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 shall [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 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 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, 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 not later than the 10th [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 promptly 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.]

(n) Notwithstanding any other provision of this section or other law, the judge who places on community supervision a defendant who is younger than 21 years of age and convicted for an offense under Sections 49.04-49.08, Penal Code, shall[:

[(1)] order that the defendant's driver's license be suspended for 90 days beginning on the date that the person is placed on community supervision [; and

[(2) require as a condition of community supervision that the defendant not operate a motor vehicle unless the vehicle is equipped with the device described by Subsection (i) of this section].

SECTION 5. Section 13, Article 42.12, Code of Criminal Procedure, is amended by adding Subsection (o) to read as follows:

(o) A judge granting deferred adjudication to a defendant for an offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065, Penal Code, shall require the defendant to have an ignition interlock device installed under Subsection (i), regardless of whether the defendant would be required to have the device installed if the defendant was convicted.

SECTION 6. Subchapter A, Chapter 102, Code of Criminal Procedure, is amended by adding Article 102.0184 to read as follows:

Art. 102.0184. ADDITIONAL COSTS ATTENDANT TO INTOXICATION CONVICTIONS: MEMORIAL SIGNS. (a) In addition to other costs on conviction imposed by this chapter, a person convicted of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, that involved the operating of a motor vehicle and resulted in the death of another person shall pay a memorial sign fee not to exceed $300 as a court cost on conviction of the offense.

(b) In this article, a person is considered convicted if:

(1) a sentence is imposed on the person; or

(2) the person is placed on community supervision.

(c) A clerk of the court shall collect the costs and pay them to the comptroller for deposit to the credit of the memorial sign account established under Section 201.9095, Transportation Code.

SECTION 7. (a) Section 102.021, Government Code, is amended to conform to Chapter 1263 (H.B. 3060), Acts of the 80th Legislature, Regular Session, 2007, and is further amended to read as follows:

Sec. 102.021. COURT COSTS ON CONVICTION: CODE OF CRIMINAL PROCEDURE. A person convicted of an offense shall pay the following under the Code of Criminal Procedure, in addition to all other costs:

(1) court cost on conviction of any offense, other than a conviction of an offense relating to a pedestrian or the parking of a motor vehicle (Art. 102.0045, Code of Criminal Procedure) . . . $4;

(2) a fee for services of prosecutor (Art. 102.008, Code of Criminal Procedure) . . . $25;

(3) fees for services of peace officer:

(A) issuing a written notice to appear in court for certain violations (Art. 102.011, Code of Criminal Procedure) . . . $5;

(B) executing or processing an issued arrest warrant, [or] capias, or capias pro fine (Art. 102.011, Code of Criminal Procedure) . . . $50;

(C) summoning a witness (Art. 102.011, Code of Criminal Procedure) . . . $5;

(D) serving a writ not otherwise listed (Art. 102.011, Code of Criminal Procedure) . . . $35;

(E) taking and approving a bond and, if necessary, returning the bond to courthouse (Art. 102.011, Code of Criminal Procedure) . . . $10;

(F) commitment or release (Art. 102.011, Code of Criminal Procedure) . . . $5;

(G) summoning a jury (Art. 102.011, Code of Criminal Procedure) . . . $5;

(H) attendance of a prisoner in habeas corpus case if prisoner has been remanded to custody or held to bail (Art. 102.011, Code of Criminal Procedure) . . . $8 each day;

(I) mileage for certain services performed (Art. 102.011, Code of Criminal Procedure) . . . $0.29 per mile; and

(J) services of a sheriff or constable who serves process and attends examining trial in certain cases (Art. 102.011, Code of Criminal Procedure) . . . not to exceed $5;

(4) services of a peace officer in conveying a witness outside the county (Art. 102.011, Code of Criminal Procedure) . . . $10 per day or part of a day, plus actual necessary travel expenses;

(5) overtime of peace officer for time spent testifying in the trial or traveling to or from testifying in the trial (Art. 102.011, Code of Criminal Procedure) . . . actual cost;

(6) court costs on an offense relating to rules of the road, when offense occurs within a school crossing zone (Art. 102.014, Code of Criminal Procedure) . . . $25;

(7) court costs on an offense of passing a school bus (Art. 102.014, Code of Criminal Procedure) . . . $25;

(8) court costs on an offense of truancy or contributing to truancy (Art. 102.014, Code of Criminal Procedure) . . . $20;

(9) cost for visual recording of intoxication arrest before conviction (Art. 102.018, Code of Criminal Procedure) . . . $15;

(10) cost of certain evaluations (Art. 102.018, Code of Criminal Procedure) . . . actual cost;

(11) additional costs attendant to certain intoxication convictions under Chapter 49, Penal Code, for emergency medical services, trauma facilities, and trauma care systems (Art. 102.0185, Code of Criminal Procedure) . . . $100;

(12) additional costs attendant to certain child sexual assault and related convictions, for child abuse prevention programs (Art. 102.0186, Code of Criminal Procedure) . . . $100;

(13) cost for DNA testing for certain felonies (Art. 102.020, Code of Criminal Procedure) . . . $250;

(14) court cost on an offense of public lewdness or indecent exposure (Art. 102.020, Code of Criminal Procedure) . . . $50;

(15) if required by the court, a restitution fee for costs incurred in collecting restitution installments and for the compensation to victims of crime fund (Art. 42.037, Code of Criminal Procedure) . . . $12; [and]

(16) if directed by the justice of the peace or municipal court judge hearing the case, court costs on conviction in a criminal action (Art. 45.041, Code of Criminal Procedure) . . . part or all of the costs as directed by the judge;

(17) costs attendant to convictions under Chapter 49, Penal Code, and under Chapter 481, Health and Safety Code, to help fund drug court programs established under Chapter 469, Health and Safety Code (Art. 102.0178, Code of Criminal Procedure) . . . $50; and

(18) costs attendant to convictions of certain offenses under Chapter 49, Penal Code, for the memorial sign program under Section 201.909, Transportation Code (Art. 102.0184, Code of Criminal Procedure) . . . not to exceed $300.

(b) Section 102.0215, Government Code, is repealed.

SECTION 8. 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 period of the deferred adjudication community supervision for which the order of nondisclosure is requested and 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 was placed on the deferred adjudication community supervision for or has been previously convicted or placed on any other 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 Section 49.04, 49.045, 49.05, 49.06, or 49.065, Penal Code.

SECTION 9. Sections 49.09(a), (b), and (g), Penal Code, are amended to read as follows:

(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.045, 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 previously been convicted 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 previously been convicted:

(1) one time of 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 of 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.

(g) A conviction 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. A deferred adjudication for an offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065 is considered a conviction for purposes of enhancement of penalties under this section or Subchapter D, Chapter 12.

SECTION 10. Subchapter K, Chapter 201, Transportation Code, is amended by adding Section 201.9095 to read as follows:

Sec. 201.9095. MEMORIAL SIGN ACCOUNT. The memorial sign account is created as a dedicated account in the general revenue fund of the state treasury. Money in the account may be appropriated only to the Texas Department of Transportation to pay costs incurred in posting memorial signs under Section 201.909.

SECTION 11. Section 521.246, Transportation Code, is amended to read as follows:

Sec. 521.246. IGNITION INTERLOCK DEVICE REQUIREMENT. (a) If the person's license has been suspended after a conviction under Sections 49.04-49.08 [Section 49.04, 49.07, or 49.08], Penal Code, as [the judge, before signing an order, shall determine from the criminal history record information maintained by the department whether the person has any previous conviction under those laws.

[(b) As part of the order the judge may restrict the person to the operation of a motor vehicle equipped with an ignition interlock device if the judge determines that the person's license has been suspended following a conviction under Section 49.04, 49.07, or 49.08, Penal Code. As] part of the order, the judge shall restrict the person to the operation of a motor vehicle equipped with an ignition interlock device [if the judge determines that:

[(1) the person has two or more convictions under any combination of Section 49.04, 49.07, or 49.08, Penal Code; or

[(2) the person's license has been suspended after a conviction under Section 49.04, Penal Code, for which the person has been punished under Section 49.09, Penal Code].

(b) [(c)] The person shall obtain the ignition interlock device at the person's own expense unless the court finds that to do so is not in the best interest of justice and enters that finding in the record. If the court determines that the person is unable to pay for the device, the court may impose a reasonable payment schedule for a term not to exceed twice the period of the court's order.

(c) [(d)] The court shall require the ignition interlock device to be installed not later than the 10th day after the date the occupational license takes effect and shall order the ignition interlock device to remain installed for at least half of the period of supervision.

(d) [(e)] A person to whom this section applies may operate a motor vehicle without the installation of an approved ignition interlock device if:

(1) the person is required to operate a motor vehicle in the course and scope of the person's employment;

(2) the vehicle is owned by the person's employer;

(3) the employer is not owned or controlled by the person whose driving privilege is restricted;

(4) the employer is notified of the driving privilege restriction; and

(5) proof of that notification is with the vehicle.

[(f) 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 section if:

[(1) the previous conviction was a final conviction under Section 49.04, 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

[(2) the person has not been convicted of an offense under Section 49.04, 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.]

SECTION 12. Section 521.2476(b), Transportation Code, is amended to read as follows:

(b) The minimum standards shall require each vendor to:

(1) be authorized by the department to do business in this state;

(2) install a device only if the device is approved under Section 521.247;

(3) obtain liability insurance providing coverage for damages arising out of the operation or use of devices in amounts and under the terms specified by the department;

(4) install the device and activate any anticircumvention feature of the device not later than the 10th day [within a reasonable time] after the date the vendor receives notice that installation is ordered by a court;

(5) install and inspect the device in accordance with any applicable court order;

(6) repair or replace a device not later than 48 hours after receiving notice of a complaint regarding the operation of the device;

(7) remove a device not later than the 10th day after the date the owner or operator of the vehicle requests removal and provides a copy of a court order to the vendor showing that the owner or operator is no longer restricted to the use of a motor vehicle equipped with an ignition interlock device;

(8) submit a written report of any violation of a court order to that court and to the person's supervising officer, if any, not later than 48 hours after the vendor discovers the violation;

(9) [(8)] maintain a record of each action taken by the vendor with respect to each device installed by the vendor, including each action taken as a result of an attempt to circumvent the device, until at least the fifth anniversary after the date of installation;

(10) [(9)] make a copy of the record available for inspection by or send a copy of the record to any court, supervising officer, or the department on request; and

(11) [(10)] annually provide to the department a written report of each service and ignition interlock device feature made available by the vendor.

SECTION 13. Article 102.0184, Code of Criminal Procedure, as added by this Act, applies only to a cost on conviction for an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered 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 14. The Texas Department of Transportation by rule shall ensure that a memorial sign posted under Section 201.909, Transportation Code, is released at the end of the one-year posting period to the person who requested the posting under Subsection (d) of that section, regardless of whether the person was required to submit a fee to help defray the costs of posting.

SECTION 15. (a) Except as otherwise provided by this Act, 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.

(b) The changes in law made by this Act in amending Articles 17.441 and 42.12, Code of Criminal Procedure, and Section 521.246, Transportation Code, relating to the time frame for installation and removal of an ignition interlock device, apply only to a court order entered on or after the effective date of this section. A court order entered before the effective date of this section is governed by the law in effect when the court order was entered, and the former law is continued in effect for that purpose.

(c) The Department of Public Safety by rule shall establish the minimum standards required by Section 521.2476(b), Transportation Code, as amended by this Act, not later than December 1, 2009.

SECTION 16. This Act takes effect September 1, 2009.