Austin, Texas
Revision 1
April 19, 2011

Honorable Pete Gallego, Chair, House Committee on Criminal Jurisprudence
John S O'Brien, Director, Legislative Budget Board
HB189 by Smith, Todd (Relating to the criminal and civil consequences for certain intoxication offenses and to certain fees associated with the enforcement and administration of certain of those consequences.), Committee Report 1st House, Substituted

The bill would amend the Penal Code as it relates to intoxication offenses.  The provisions of the bill that create new punishment or enhance existing punishment for criminal offenses are the subject of this analysis. Under current statute, certain intoxication offenses are ineligible for placement on deferred adjudication.  Under the provisions of the bill, driving while intoxicated, driving while intoxicated with a child passenger, flying while intoxicated, boating while intoxicated, and assembling or operating an amusement ride while intoxicated would be eligible for placement on deferred adjudication as long as the defendant at the time of the offense did not possess a commercial driver's license, did not possess a commercial driver learners’ permit, did not cause injury to another person, or did not damage property belonging to another person. Under the provisions of the bill driving while intoxicated with a child passenger would be added to the list of offenses for which punishment is enhanced to a third degree felony if the defendant has previously been convicted of or previously placed on deferred adjudication for certain intoxication offenses.  Under current statute driving while intoxicated with a child passenger is punishable as a state jail felony. 

A state jail felony is punishable by confinement in a state jail for a term from 180 days to 2 years and, in addition to confinement, an optional fine not to exceed $10,000 or Class A Misdemeanor punishment (mandatory post conviction community supervision). A felony of the third degree is punishable by confinement in prison for a term from 2 to 10 years and, in addition to confinement, an optional fine not to exceed $10,000.

Under current statute a subsequent intoxication conviction results in penalty enhancement to that of the next higher degree with multiple previous convictions providing for even greater enhancement.  Since a placement on deferred adjudication will be allowed to be considered for the purpose of penalty enhancement, the impact from implementing the provisions of the bill would not result in increased demands upon the correctional resources of counties or of the State.  In fiscal year 2010, 1,184 offenders were placed on felony community supervision and 700 offenders were admitted to state jail for Driving while Intoxicated with Child Passenger.  Based on arrest data, criminal history data, and sentencing trends, it is estimated that eight percent or 147 offenders would be subject to the provisions of the bill with approximately 29 offenders being admitted to prison and approximately 64 offenders being placed on felony community supervision. It is assumed the number of offenders convicted under this statute would not result in a significant impact on the programs and workload of State corrections agencies or on the demand for resources and services of those agencies.

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