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A BILL TO BE ENTITLED
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AN ACT
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relating to a person's eligibility for community supervision on |
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conviction of intoxication manslaughter. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 3g(a), Article 42.12, Code of Criminal |
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Procedure, as amended by Chapters 405 (S.B. 877) and 593 (H.B. 8), |
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Acts of the 80th Legislature, Regular Session, 2007, is reenacted |
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and amended to read as follows: |
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(a) The provisions of Section 3 of this article do not |
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apply: |
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(1) to a defendant adjudged guilty of an offense |
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under: |
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(A) Section 19.02, Penal Code (Murder); |
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(B) Section 19.03, Penal Code (Capital murder); |
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(C) Section 21.11(a)(1), Penal Code (Indecency |
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with a child); |
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(D) Section 20.04, Penal Code (Aggravated |
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kidnapping); |
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(E) Section 22.021, Penal Code (Aggravated |
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sexual assault); |
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(F) Section 29.03, Penal Code (Aggravated |
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robbery); |
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(G) Chapter 481, Health and Safety Code, for |
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which punishment is increased under: |
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(i) Section 481.140, Health and Safety |
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Code; or |
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(ii) Section 481.134(c), (d), (e), or (f), |
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Health and Safety Code, if it is shown that the defendant has been |
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previously convicted of an offense for which punishment was |
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increased under any of those subsections; |
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(H) Section 22.011, Penal Code (Sexual assault); |
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[or] |
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(I) Section 22.04(a)(1), Penal Code (Injury to a |
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child, elderly individual, or disabled individual), if the offense |
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is punishable as a felony of the first degree and the victim of the |
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offense is a child; [or] |
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(J) [(I)] Section 43.25, Penal Code (Sexual |
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performance by a child); or |
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(K) Section 49.08, Penal Code (Intoxication |
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manslaughter); or |
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(2) to a defendant when it is shown that a deadly |
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weapon as defined in Section 1.07, Penal Code, was used or exhibited |
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during the commission of a felony offense or during immediate |
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flight therefrom, and that the defendant used or exhibited the |
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deadly weapon or was a party to the offense and knew that a deadly |
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weapon would be used or exhibited. On an affirmative finding under |
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this subdivision, the trial court shall enter the finding in the |
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judgment of the court. On an affirmative finding that the deadly |
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weapon was a firearm, the court shall enter that finding in its |
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judgment. |
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SECTION 2. Section 4(d), Article 42.12, Code of Criminal |
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Procedure, as amended by Chapters 593 (H.B. 8) and 1205 (H.B. 1678), |
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Acts of the 80th Legislature, Regular Session, 2007, is reenacted |
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and amended to read as follows: |
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(d) A defendant is not eligible for community supervision |
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under this section if the defendant: |
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(1) is sentenced to a term of imprisonment that |
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exceeds 10 years; |
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(2) is convicted of a state jail felony for which |
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suspension of the imposition of the sentence occurs automatically |
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under Section 15(a); |
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(3) does not file a sworn motion under Subsection (e) |
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of this section or for whom the jury does not enter in the verdict a |
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finding that the information contained in the motion is true; |
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(4) is convicted of an offense for which punishment is |
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increased under Section 481.134(c), (d), (e), or (f), Health and |
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Safety Code, if it is shown that the defendant has been previously |
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convicted of an offense for which punishment was increased under |
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any one of those subsections; |
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(5) is convicted of an offense listed in Section |
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3g(a)(1)(C), (E), or (H), if the victim of the offense was younger |
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than 14 years of age at the time the offense was committed; |
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(6) is convicted of an offense listed in Section |
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3g(a)(1)(D), if the victim of the offense was younger than 14 years |
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of age at the time the offense was committed and the actor committed |
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the offense with the intent to violate or abuse the victim sexually; |
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[or] |
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(7) is convicted of an offense listed in Section |
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3g(a)(1)(J) or (K); or |
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(8) [3g(a)(1)(I)] is adjudged guilty of an offense |
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under Section 19.02, Penal Code. |
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SECTION 3. Sections 13(f), (g), (h), (i), and (n), Article |
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42.12, Code of Criminal Procedure, are amended to read as follows: |
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(f) If a judge grants community supervision to a defendant |
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convicted of an offense under Sections 49.04-49.07 [49.04-49.08], |
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Penal Code, and if before receiving community supervision the |
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defendant has not submitted to an evaluation under Section 9 of this |
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article, the judge shall require the defendant to submit to the |
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evaluation as a condition of community supervision. If the |
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evaluation indicates to the judge that the defendant is in need of |
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treatment for drug or alcohol dependency, the judge shall require |
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the defendant to submit to that treatment as a condition of |
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community supervision in a program or facility approved or licensed |
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by the Texas Commission on Alcohol and Drug Abuse or in a program or |
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facility that complies with standards established by the community |
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justice assistance division of the Texas Department of Criminal |
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Justice, after consultation by the division with the commission. |
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(g) A jury that recommends community supervision for a |
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person convicted of an offense under Sections 49.04-49.07 |
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[49.04-49.08], Penal Code, may recommend that any driver's license |
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issued to the defendant under Chapter 521, Transportation Code, not |
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be suspended. This subsection does not apply to a person punished |
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under Section 49.09(a) or (b), Penal Code, and subject to Section |
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49.09(h) of that code. |
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(h) If a person convicted of an offense under Sections |
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49.04-49.07 [49.04-49.08], Penal Code, is placed on community |
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supervision, the judge shall require, as a condition of the |
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community supervision, that the defendant attend and successfully |
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complete before the 181st day after the day community supervision |
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is granted an educational program jointly approved by the Texas |
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Commission on Alcohol and Drug Abuse, the Department of Public |
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Safety, the Traffic Safety Section of the Texas Department of |
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Transportation, and the community justice assistance division of |
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the Texas Department of Criminal Justice designed to rehabilitate |
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persons who have driven while intoxicated. The Texas Commission on |
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Alcohol and Drug Abuse shall publish the jointly approved rules and |
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shall monitor, coordinate, and provide training to persons |
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providing the educational programs. The Texas Commission on |
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Alcohol and Drug Abuse is responsible for the administration of the |
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certification of approved educational programs and may charge a |
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nonrefundable application fee for the initial certification of |
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approval and for renewal of a certificate. The judge may waive the |
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educational program requirement or may grant an extension of time |
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to successfully complete the program that expires not later than |
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one year after the beginning date of the person's community |
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supervision, however, if the defendant by a motion in writing shows |
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good cause. In determining good cause, the judge may consider but |
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is not limited to: the defendant's school and work schedule, the |
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defendant's health, the distance that the defendant must travel to |
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attend an educational program, and the fact that the defendant |
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resides out of state, has no valid driver's license, or does not |
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have access to transportation. The judge shall set out the finding |
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of good cause for waiver in the judgment. If a defendant is |
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required, as a condition of community supervision, to attend an |
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educational program or if the court waives the educational program |
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requirement, the court clerk shall immediately report that fact to |
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the Department of Public Safety, on a form prescribed by the |
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department, for inclusion in the person's driving record. If the |
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court grants an extension of time in which the person may complete |
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the program, the court clerk shall immediately report that fact to |
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the Department of Public Safety on a form prescribed by the |
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department. The report must include the beginning date of the |
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person's community supervision. Upon the person's successful |
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completion of the educational program, the person's instructor |
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shall give notice to the Department of Public Safety for inclusion |
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in the person's driving record and to the community supervision and |
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corrections department. The community supervision and corrections |
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department shall then forward the notice to the court clerk for |
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filing. If the Department of Public Safety does not receive notice |
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that a defendant required to complete an educational program has |
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successfully completed the program within the period required by |
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this section, as shown on department records, the department shall |
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revoke the defendant's driver's license, permit, or privilege or |
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prohibit the person from obtaining a license or permit, as provided |
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by Sections 521.344(e) and (f), Transportation Code. The Department |
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of Public Safety may not reinstate a license suspended under this |
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subsection unless the person whose license was suspended makes |
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application to the department for reinstatement of the person's |
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license and pays to the department a reinstatement fee of $50. The |
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Department of Public Safety shall remit all fees collected under |
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this subsection to the comptroller for deposit in the general |
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revenue fund. This subsection does not apply to a defendant if a |
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jury recommends community supervision for the defendant and also |
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recommends that the defendant's driver's license not be suspended. |
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(i) If a person convicted of an offense under Sections |
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49.04-49.07 [49.04-49.08], Penal Code, is placed on community |
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supervision, the court may require as a condition of community |
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supervision that the defendant have a device installed, on the |
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motor vehicle owned by the defendant or on the vehicle most |
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regularly driven by the defendant, that uses a deep-lung breath |
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analysis mechanism to make impractical the operation of the motor |
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vehicle if ethyl alcohol is detected in the breath of the operator |
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and that the defendant not operate any motor vehicle that is not |
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equipped with that device. If it is shown on the trial of the |
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offense that an analysis of a specimen of the person's blood, |
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breath, or urine showed an alcohol concentration level of 0.15 or |
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more at the time the analysis was performed, or if the person is |
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convicted of an offense under Sections 49.04-49.06, Penal Code, and |
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punished under Section 49.09(a) or (b), Penal Code, or of a second |
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or subsequent offense under Section 49.07 or 49.08, Penal Code, and |
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the person after conviction of either offense is placed on |
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community supervision, the court shall require as a condition of |
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community supervision that the defendant have the device installed |
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on the appropriate vehicle and that the defendant not operate any |
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motor vehicle unless the vehicle is equipped with that |
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device. Before placing on community supervision a person |
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convicted of an offense under Sections 49.04-49.07 [49.04-49.08], |
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Penal Code, the court shall determine from criminal history record |
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information maintained by the Department of Public Safety whether |
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the person has one or more previous convictions under Sections |
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49.04-49.08, Penal Code, or has one previous conviction under |
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Sections 49.04-49.07, Penal Code, or one previous conviction under |
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Section 49.08, Penal Code. If it is shown on the trial of the |
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offense that an analysis of a specimen of the person's blood, |
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breath, or urine showed an alcohol concentration level of 0.15 or |
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more at the time the analysis was performed, or if the court |
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determines that the person has one or more such previous |
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convictions, the court shall require as a condition of community |
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supervision that the defendant have that device installed on the |
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motor vehicle owned by the defendant or on the vehicle most |
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regularly driven by the defendant and that the defendant not |
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operate any motor vehicle unless the vehicle is equipped with the |
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device described in this subsection. The court shall require the |
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defendant to obtain the device at the defendant's own cost before |
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the 30th day after the date of conviction unless the court finds |
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that to do so would not be in the best interest of justice and enters |
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its findings on record. The court shall require the defendant to |
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provide evidence to the court within the 30-day period that the |
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device has been installed on the appropriate vehicle and order the |
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device to remain installed on that vehicle for a period not less |
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than 50 percent of the supervision period. If the court determines |
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the offender is unable to pay for the device, the court may impose a |
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reasonable payment schedule not to exceed twice the period of the |
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court's order. The Department of Public Safety shall approve |
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devices for use under this subsection. Section 521.247, |
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Transportation Code, applies to the approval of a device under this |
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subsection and the consequences of that approval. Notwithstanding |
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the provisions of this section, if a person is required to operate a |
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motor vehicle in the course and scope of the person's employment and |
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if the vehicle is owned by the employer, the person may operate that |
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vehicle without installation of an approved ignition interlock |
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device if the employer has been notified of that driving privilege |
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restriction and if proof of that notification is with the |
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vehicle. This employment exemption does not apply, however, if the |
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business entity that owns the vehicle is owned or controlled by the |
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person whose driving privilege has been restricted. A previous |
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conviction may not be used for purposes of restricting a person to |
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the operation of a motor vehicle equipped with an interlock |
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ignition device under this subsection if: |
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(1) the previous conviction was a final conviction |
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under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08, Penal |
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Code, and was for an offense committed more than 10 years before the |
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instant offense for which the person was convicted and placed on |
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community supervision; and |
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(2) the person has not been convicted of an offense |
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under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 of that |
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code, committed within 10 years before the date on which the instant |
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offense for which the person was convicted and placed on community |
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supervision. |
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(n) Notwithstanding any other provision of this section or |
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other law, the judge who places on community supervision a |
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defendant who is younger than 21 years of age and convicted for an |
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offense under Sections 49.04-49.07 [49.04-49.08], Penal Code, |
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shall: |
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(1) order that the defendant's driver's license be |
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suspended for 90 days beginning on the date that the person is |
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placed on community supervision; and |
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(2) require as a condition of community supervision |
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that the defendant not operate a motor vehicle unless the vehicle is |
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equipped with the device described by Subsection (i) of this |
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section. |
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SECTION 4. Section 20(b), Article 42.12, Code of Criminal |
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Procedure, is amended to read as follows: |
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(b) This section does not apply to a defendant convicted of |
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an offense under Sections 49.04-49.07 [49.04-49.08], Penal Code, a |
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defendant convicted of an offense for which on conviction |
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registration as a sex offender is required under Chapter 62, or a |
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defendant convicted of a felony described by Section 3g. |
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SECTION 5. Section 13(b), Article 42.12, Code of Criminal |
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Procedure, is repealed. |
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SECTION 6. The change in law made by this Act applies only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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covered by the law in effect when the offense was committed, and the |
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former law is continued in effect for that purpose. For purposes of |
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this section, an offense was committed before the effective date of |
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this Act if any element of the offense occurred before that date. |
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SECTION 7. This Act takes effect September 1, 2009. |