Texas 2009 - 81st Regular

Texas House Bill HB2432 Compare Versions

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1	1	By: Smith of Tarrant H.B. No. 2432
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to defendant's eligibility to be placed on deferred
7	7	adjudication for certain intoxication offenses and to the
8	8	consequences of that deferred adjudication.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 5(d), Article 42.12, Code of Criminal
11	11	Procedure, is amended to read as follows:
12	12	(d) In all other cases the judge may grant deferred
13	13	adjudication unless:
14	14	(1) the defendant is charged with an offense:
15	15	(A) under Section [49.04, 49.05, 49.06,]
16	16	49.07[,] or 49.08, Penal Code, or for which punishment may be
17	17	increased under Section 49.09 of that code; or
18	18	(B) for which punishment may be increased under
19	19	Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it
20	20	is shown that the defendant has been previously convicted of an
21	21	offense for which punishment was increased under any one of those
22	22	subsections; or
23	23	(2) the defendant:
24	24	(A) is charged with an offense under Section
25	25	21.11, 22.011, or 22.021, Penal Code, regardless of the age of the
26	26	victim, or a felony described by Section 13B(b) of this article; and
27	27	(B) has previously been placed on community
28	28	supervision for any offense under Paragraph (A) of this
29	29	subdivision.
30	30	SECTION 2. Article 42.12, Section 13 (i), Code of Criminal
31	31	Procedure, is amended to read as follows:
32	32	(i) If a person convicted of an offense under Sections
33	33	49.04-49.08, Penal Code, is placed on community supervision, the
34	34	court may require as a condition of community supervision that the
35	35	defendant have a device installed, on the motor vehicle owned by the
36	36	defendant or on the vehicle most regularly driven by the defendant,
37	37	that uses a deep-lung breath analysis mechanism to make impractical
38	38	the operation of the motor vehicle if ethyl alcohol is detected in
39	39	the breath of the operator and that the defendant not operate any
40	40	motor vehicle that is not equipped with that device. If it is shown
41	41	at the time of the trial of the offense that an analysis of a
42	42	specimen of the person's blood, breath, or urine showed an alcohol
43	43	concentration level of 0.15 or more at the time the analysis was
44	44	performed, or if the person is convicted of an offense under
45	45	Sections 49.04-49.06, Penal Code, and punished under Section
46	46	49.09(a) or (b), Penal Code, or of a second or subsequent offense
47	47	under Section 49.07 or 49.08, Penal Code, and the person after
48	48	conviction of either offense is placed on community supervision,
49	49	including deferred adjudication, the court shall require as a
50	50	condition of community supervision that the defendant have the
51	51	device installed on the appropriate vehicle and that the defendant
52	52	not operate any motor vehicle unless the vehicle is equipped with
53	53	that device. Before placing on community supervision a person
54	54	convicted of an offense under Sections 49.04-49.08, Penal Code, the
55	55	court shall determine from criminal history record information
56	56	maintained by the Department of Public Safety whether the person
57	57	has one or more previous convictions under Sections 49.04-49.08,
58	58	Penal Code, or has one previous conviction under Sections
59	59	49.04-49.07, Penal Code, or one previous conviction under Section
60	60	49.08, Penal Code. If it is shown on the trial of the offense that
61	61	an analysis of a specimen of the person's blood, breath, or urine
62	62	showed an alcohol concentration level of 0.15 or more at the time
63	63	the analysis was performed, or if the court determines that the
64	64	person has one or more such previous convictions, the court shall
65	65	require as a condition of community supervision that the defendant
66	66	have that device installed on the motor vehicle owned by the
67	67	defendant or on the vehicle most regularly driven by the defendant
68	68	and that the defendant not operate any motor vehicle unless the
69	69	vehicle is equipped with the device described in this subsection.
70	70	The court shall require the defendant to obtain the device at the
71	71	defendant's own cost before the 30th day after the date of
72	72	conviction unless the court finds that to do so would not be in the
73	73	best interest of justice and enters its findings on record. The
74	74	court shall require the defendant to provide evidence to the court
75	75	within the 30-day period that the device has been installed on the
76	76	appropriate vehicle and order the device to remain installed on
77	77	that vehicle for a period not less than 50 percent of the
78	78	supervision period. If the court determines the offender is unable
79	79	to pay for the device, the court may impose a reasonable payment
80	80	schedule not to exceed twice the period of the court's order. The
81	81	Department of Public Safety shall approve devices for use under
82	82	this subsection. Section 521.247, Transportation Code, applies to
83	83	the approval of a device under this subsection and the consequences
84	84	of that approval. Notwithstanding the provisions of this section,
85	85	if a person is required to operate a motor vehicle in the course and
86	86	scope of the person's employment and if the vehicle is owned by the
87	87	employer, the person may operate that vehicle without installation
88	88	of an approved ignition interlock device if the employer has been
89	89	notified of that driving privilege restriction and if proof of that
90	90	notification is with the vehicle. This employment exemption does
91	91	not apply, however, if the business entity that owns the vehicle is
92	92	owned or controlled by the person whose driving privilege has been
93	93	restricted. A previous conviction may not be used for purposes of
94	94	restricting a person to the operation of a motor vehicle equipped
95	95	with an interlock ignition device under this subsection if:
96	96	(1) the previous conviction was a final conviction
97	97	under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08, Penal
98	98	Code, and was for an offense committed more than 10 years before the
99	99	instant offense for which the person was convicted and placed on
100	100	community supervision; and
101	101	(2) the person has not been convicted of an offense
102	102	under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 of that
103	103	code, committed within 10 years before the date on which the instant
104	104	offense for which the person was convicted and placed on community
105	105	supervision.
106	106	SECTION 3. Section 411.081(e), Government Code, is amended
107	107	to read as follows:
108	108	(e) A person is entitled to petition the court under
109	109	Subsection (d) only if during the applicable period described by
110	110	Subsection (d)(1), (2), or (3), as appropriate, the person is not
111	111	convicted of or placed on deferred adjudication community
112	112	supervision under Section 5, Article 42.12, Code of Criminal
113	113	Procedure, for any offense other than an offense under the
114	114	Transportation Code punishable by fine only. A person is not
115	115	entitled to petition the court under Subsection (d) if the person
116	116	has been previously convicted or placed on deferred adjudication
117	117	for:
118	118	(1) an offense requiring registration as a sex
119	119	offender under Chapter 62, Code of Criminal Procedure;
120	120	(2) an offense under Section 20.04, Penal Code,
121	121	regardless of whether the offense is a reportable conviction or
122	122	adjudication for purposes of Chapter 62, Code of Criminal
123	123	Procedure;
124	124	(3) an offense under Section 19.02, 19.03, 22.04,
125	125	22.041, 25.07, or 42.072, Penal Code; [or]
126	126	(4) any other offense involving family violence, as
127	127	defined by Section 71.004, Family Code; or
128	128	(5) an offense under Chapter 49, Penal Code, other
129	129	than an offense that is punishable as a Class C misdemeanor.
130	130	SECTION 4. Sections 49.09(a), (b), (d), and (g), Penal
131	131	Code, are amended to read as follows:
132	132	(a) Except as provided by Subsection (b), an offense under
133	133	Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor,
134	134	with a minimum term of confinement of 30 days, if it is shown on the
135	135	trial of the offense that the person has been one time previously
136	136	been] convicted of or placed on deferred adjudication for [one time
137	137	of] an offense relating to the operating of a motor vehicle while
138	138	intoxicated, an offense of operating an aircraft while intoxicated,
139	139	an offense of operating a watercraft while intoxicated, or an
140	140	offense of operating or assembling an amusement ride while
141	141	intoxicated.
142	142	(b) An offense under Section 49.04, 49.045, 49.05, 49.06, or
143	143	49.065 is a felony of the third degree if it is shown on the trial of
144	144	the offense that the person has been [previously been convicted]:
145	145	(1) one time previously convicted of or placed on
146	146	deferred adjudication for an offense under Section 49.08 or an
147	147	offense under the laws of another state if the offense contains
148	148	elements that are substantially similar to the elements of an
149	149	offense under Section 49.08; or
150	150	(2) two times previously convicted of or placed on
151	151	deferred adjudication for any other offense relating to the
152	152	operating of a motor vehicle while intoxicated, operating an
153	153	aircraft while intoxicated, operating a watercraft while
154	154	intoxicated, or operating or assembling an amusement ride while
155	155	intoxicated.
156	156	(d) For the purposes of this section, a conviction for an
157	157	offense listed in Subsection (c) [under Section 49.04, 49.045,
158	158	49.05, 49.06, 49.065, 49.07, or 49.08] that occurs on or after
159	159	September 1, 1994, is a final conviction, whether the sentence for
160	160	the conviction is imposed or probated.
161	161	(g) A conviction or deferred adjudication may be used for
162	162	purposes of enhancement under this section or enhancement under
163	163	Subchapter D, Chapter 12, but not under both this section and
164	164	Subchapter D.
165	165	SECTION 5. The changes in law made by this Act apply only to
166	166	an offense committed on or after the effective date of this Act. An
167	167	offense committed before the effective date of this Act is governed
168	168	by the law in effect when the offense was committed, and the former
169	169	law is continued in effect for that purpose. For purposes of this
170	170	section, an offense was committed before the effective date of this
171	171	Act if any element of the offense was committed before that date.
172	172	SECTION 6. This Act takes effect September 1, 2009.