Texas 2009 - 81st Regular

Texas House Bill HB4061 Compare Versions

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1	1	By: Smith of Tarrant, Callegari, Vo, Merritt, H.B. No. 4061
2	2	Harless, et al.
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the consequences of an arrest for or conviction of
8	8	certain intoxication offenses.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. This Act shall be known as the Todd Levin-Lilly
11	11	Lalime Memorial Act.
12	12	SECTION 2. Article 17.441(c), Code of Criminal Procedure,
13	13	is amended to read as follows:
14	14	(c) If the defendant is required to have the device
15	15	installed, the magistrate shall require that the defendant have the
16	16	device installed on the appropriate motor vehicle, at the
17	17	defendant's expense, not later than the 10th [before the 30th] day
18	18	after the date the defendant is released on bond.
19	19	SECTION 3. Section 5(d), Article 42.12, Code of Criminal
20	20	Procedure, is amended to read as follows:
21	21	(d) In all other cases the judge may grant deferred
22	22	adjudication unless:
23	23	(1) the defendant is charged with an offense:
24	24	(A) under Section 49.07 or 49.08 [Sections
25	25	49.04-49.08], Penal Code; [or]
26	26	(B) under Section 49.04, 49.045, 49.05, 49.06, or
27	27	49.065, Penal Code, and, at the time of the offense, the defendant:
28	28	(i) held a commercial driver's license or a
29	29	commercial driver learner's permit; or
30	30	(ii) was driving a commercial vehicle;
31	31	(C) for which punishment may be increased under
32	32	Section 49.09, Penal Code; or
33	33	(D) for which punishment may be increased under
34	34	Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it
35	35	is shown that the defendant has been previously convicted of an
36	36	offense for which punishment was increased under any one of those
37	37	subsections;
38	38	(2) the defendant:
39	39	(A) is charged with an offense under Section
40	40	21.11, 22.011, or 22.021, Penal Code, regardless of the age of the
41	41	victim, or a felony described by Section 13B(b) of this article; and
42	42	(B) has previously been placed on community
43	43	supervision for any offense under Paragraph (A) of this
44	44	subdivision; or
45	45	(3) the defendant is charged with an offense under:
46	46	(A) Section 21.02, Penal Code; or
47	47	(B) Section 22.021, Penal Code, that is
48	48	punishable under Subsection (f) of that section or under Section
49	49	12.42(c)(3), Penal Code.
50	50	SECTION 4. Sections 13(i) and (n), Article 42.12, Code of
51	51	Criminal Procedure, are amended to read as follows:
52	52	(i) If a person convicted of an offense under Sections
53	53	49.04-49.08, Penal Code, is placed on community supervision, the
54	54	court shall [may] require as a condition of community supervision
55	55	that the defendant have a device installed, on the motor vehicle
56	56	owned by the defendant or on the vehicle most regularly driven by
57	57	the defendant, that uses a deep-lung breath analysis mechanism to
58	58	make impractical the operation of the motor vehicle if ethyl
59	59	alcohol is detected in the breath of the operator and that the
60	60	defendant not operate any motor vehicle that is not equipped with
61	61	that device. [If it is shown on the trial of the offense that an
62	62	analysis of a specimen of the person's blood, breath, or urine
63	63	showed an alcohol concentration level of 0.15 or more at the time
64	64	the analysis was performed, or if the person is convicted of an
65	65	offense under Sections 49.04-49.06, Penal Code, and punished under
66	66	Section 49.09(a) or (b), Penal Code, or of a second or subsequent
67	67	offense under Section 49.07 or 49.08, Penal Code, and the person
68	68	after conviction of either offense is placed on community
69	69	supervision, the court shall require as a condition of community
70	70	supervision that the defendant have the device installed on the
71	71	appropriate vehicle and that the defendant not operate any motor
72	72	vehicle unless the vehicle is equipped with that device. Before
73	73	placing on community supervision a person convicted of an offense
74	74	under Sections 49.04-49.08, Penal Code, the court shall determine
75	75	from criminal history record information maintained by the
76	76	Department of Public Safety whether the person has one or more
77	77	previous convictions under Sections 49.04-49.08, Penal Code, or has
78	78	one previous conviction under Sections 49.04-49.07, Penal Code, or
79	79	one previous conviction under Section 49.08, Penal Code. If it is
80	80	shown on the trial of the offense that an analysis of a specimen of
81	81	the person's blood, breath, or urine showed an alcohol
82	82	concentration level of 0.15 or more at the time the analysis was
83	83	performed, or if the court determines that the person has one or
84	84	more such previous convictions, the court shall require as a
85	85	condition of community supervision that the defendant have that
86	86	device installed on the motor vehicle owned by the defendant or on
87	87	the vehicle most regularly driven by the defendant and that the
88	88	defendant not operate any motor vehicle unless the vehicle is
89	89	equipped with the device described in this subsection.] The court
90	90	shall require the defendant to obtain the device at the defendant's
91	91	own cost not later than the 10th [before the 30th] day after the
92	92	date of conviction unless the court finds that to do so would not be
93	93	in the best interest of justice and enters its findings on record.
94	94	The court shall require the defendant to promptly provide evidence
95	95	to the court [within the 30-day period] that the device has been
96	96	installed on the appropriate vehicle and order the device to remain
97	97	installed on that vehicle for a period not less than 50 percent of
98	98	the supervision period. If the court determines the offender is
99	99	unable to pay for the device, the court may impose a reasonable
100	100	payment schedule not to exceed twice the period of the court's
101	101	order. The Department of Public Safety shall approve devices for
102	102	use under this subsection. Section 521.247, Transportation Code,
103	103	applies to the approval of a device under this subsection and the
104	104	consequences of that approval. Notwithstanding the provisions of
105	105	this section, if a person is required to operate a motor vehicle in
106	106	the course and scope of the person's employment and if the vehicle
107	107	is owned by the employer, the person may operate that vehicle
108	108	without installation of an approved ignition interlock device if
109	109	the employer has been notified of that driving privilege
110	110	restriction and if proof of that notification is with the vehicle.
111	111	This employment exemption does not apply, however, if the business
112	112	entity that owns the vehicle is owned or controlled by the person
113	113	whose driving privilege has been restricted. [A previous
114	114	conviction may not be used for purposes of restricting a person to
115	115	the operation of a motor vehicle equipped with an interlock
116	116	ignition device under this subsection if:
117	117	[(1) the previous conviction was a final conviction
118	118	under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08, Penal
119	119	Code, and was for an offense committed more than 10 years before the
120	120	instant offense for which the person was convicted and placed on
121	121	community supervision; and
122	122	[(2) the person has not been convicted of an offense
123	123	under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 of that
124	124	code, committed within 10 years before the date on which the instant
125	125	offense for which the person was convicted and placed on community
126	126	supervision.]
127	127	(n) Notwithstanding any other provision of this section or
128	128	other law, the judge who places on community supervision a
129	129	defendant who is younger than 21 years of age and convicted for an
130	130	offense under Sections 49.04-49.08, Penal Code, shall[:
131	131	[(1)] order that the defendant's driver's license be
132	132	suspended for 90 days beginning on the date that the person is
133	133	placed on community supervision [; and
134	134	[(2) require as a condition of community supervision
135	135	that the defendant not operate a motor vehicle unless the vehicle is
136	136	equipped with the device described by Subsection (i) of this
137	137	section].
138	138	SECTION 5. Section 13, Article 42.12, Code of Criminal
139	139	Procedure, is amended by adding Subsection (o) to read as follows:
140	140	(o) A judge granting deferred adjudication to a defendant
141	141	for an offense under Section 49.04, 49.045, 49.05, 49.06, or
142	142	49.065, Penal Code, shall require the defendant to have an ignition
143	143	interlock device installed under Subsection (i), regardless of
144	144	whether the defendant would be required to have the device
145	145	installed if the defendant was convicted.
146	146	SECTION 6. Subchapter A, Chapter 102, Code of Criminal
147	147	Procedure, is amended by adding Article 102.0184 to read as
148	148	follows:
149	149	Art. 102.0184. ADDITIONAL COSTS ATTENDANT TO INTOXICATION
150	150	CONVICTIONS: MEMORIAL SIGNS. (a) In addition to other costs on
151	151	conviction imposed by this chapter, a person convicted of an
152	152	offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code,
153	153	that involved the operating of a motor vehicle and resulted in the
154	154	death of another person shall pay a memorial sign fee not to exceed
155	155	$300 as a court cost on conviction of the offense.
156	156	(b) In this article, a person is considered convicted if:
157	157	(1) a sentence is imposed on the person; or
158	158	(2) the person is placed on community supervision.
159	159	(c) A clerk of the court shall collect the costs and pay them
160	160	to the comptroller for deposit to the credit of the memorial sign
161	161	account established under Section 201.9095, Transportation Code.
162	162	SECTION 7. (a) Section 102.021, Government Code, is
163	163	amended to conform to Chapter 1263 (H.B. 3060), Acts of the 80th
164	164	Legislature, Regular Session, 2007, and is further amended to read
165	165	as follows:
166	166	Sec. 102.021. COURT COSTS ON CONVICTION: CODE OF CRIMINAL
167	167	PROCEDURE. A person convicted of an offense shall pay the following
168	168	under the Code of Criminal Procedure, in addition to all other
169	169	costs:
170	170	(1) court cost on conviction of any offense, other
171	171	than a conviction of an offense relating to a pedestrian or the
172	172	parking of a motor vehicle (Art. 102.0045, Code of Criminal
173	173	Procedure) . . . $4;
174	174	(2) a fee for services of prosecutor (Art. 102.008,
175	175	Code of Criminal Procedure) . . . $25;
176	176	(3) fees for services of peace officer:
177	177	(A) issuing a written notice to appear in court
178	178	for certain violations (Art. 102.011, Code of Criminal
179	179	Procedure) . . . $5;
180	180	(B) executing or processing an issued arrest
181	181	warrant, [or] capias, or capias pro fine (Art. 102.011, Code of
182	182	Criminal Procedure) . . . $50;
183	183	(C) summoning a witness (Art. 102.011, Code of
184	184	Criminal Procedure) . . . $5;
185	185	(D) serving a writ not otherwise listed (Art.
186	186	102.011, Code of Criminal Procedure) . . . $35;
187	187	(E) taking and approving a bond and, if
188	188	necessary, returning the bond to courthouse (Art. 102.011, Code of
189	189	Criminal Procedure) . . . $10;
190	190	(F) commitment or release (Art. 102.011, Code of
191	191	Criminal Procedure) . . . $5;
192	192	(G) summoning a jury (Art. 102.011, Code of
193	193	Criminal Procedure) . . . $5;
194	194	(H) attendance of a prisoner in habeas corpus
195	195	case if prisoner has been remanded to custody or held to bail (Art.
196	196	102.011, Code of Criminal Procedure) . . . $8 each day;
197	197	(I) mileage for certain services performed (Art.
198	198	102.011, Code of Criminal Procedure) . . . $0.29 per mile; and
199	199	(J) services of a sheriff or constable who serves
200	200	process and attends examining trial in certain cases (Art. 102.011,
201	201	Code of Criminal Procedure) . . . not to exceed $5;
202	202	(4) services of a peace officer in conveying a witness
203	203	outside the county (Art. 102.011, Code of Criminal
204	204	Procedure) . . . $10 per day or part of a day, plus actual
205	205	necessary travel expenses;
206	206	(5) overtime of peace officer for time spent
207	207	testifying in the trial or traveling to or from testifying in the
208	208	trial (Art. 102.011, Code of Criminal Procedure) . . . actual cost;
209	209	(6) court costs on an offense relating to rules of the
210	210	road, when offense occurs within a school crossing zone (Art.
211	211	102.014, Code of Criminal Procedure) . . . $25;
212	212	(7) court costs on an offense of passing a school bus
213	213	(Art. 102.014, Code of Criminal Procedure) . . . $25;
214	214	(8) court costs on an offense of truancy or
215	215	contributing to truancy (Art. 102.014, Code of Criminal
216	216	Procedure) . . . $20;
217	217	(9) cost for visual recording of intoxication arrest
218	218	before conviction (Art. 102.018, Code of Criminal
219	219	Procedure) . . . $15;
220	220	(10) cost of certain evaluations (Art. 102.018, Code
221	221	of Criminal Procedure) . . . actual cost;
222	222	(11) additional costs attendant to certain
223	223	intoxication convictions under Chapter 49, Penal Code, for
224	224	emergency medical services, trauma facilities, and trauma care
225	225	systems (Art. 102.0185, Code of Criminal Procedure) . . . $100;
226	226	(12) additional costs attendant to certain child
227	227	sexual assault and related convictions, for child abuse prevention
228	228	programs (Art. 102.0186, Code of Criminal Procedure) . . . $100;
229	229	(13) cost for DNA testing for certain felonies (Art.
230	230	102.020, Code of Criminal Procedure) . . . $250;
231	231	(14) court cost on an offense of public lewdness or
232	232	indecent exposure (Art. 102.020, Code of Criminal
233	233	Procedure) . . . $50;
234	234	(15) if required by the court, a restitution fee for
235	235	costs incurred in collecting restitution installments and for the
236	236	compensation to victims of crime fund (Art. 42.037, Code of
237	237	Criminal Procedure) . . . $12; [and]
238	238	(16) if directed by the justice of the peace or
239	239	municipal court judge hearing the case, court costs on conviction
240	240	in a criminal action (Art. 45.041, Code of Criminal
241	241	Procedure) . . . part or all of the costs as directed by the judge;
242	242	(17) costs attendant to convictions under Chapter 49,
243	243	Penal Code, and under Chapter 481, Health and Safety Code, to help
244	244	fund drug court programs established under Chapter 469, Health and
245	245	Safety Code (Art. 102.0178, Code of Criminal Procedure) . . . $50;
246	246	and
247	247	(18) costs attendant to convictions of certain
248	248	offenses under Chapter 49, Penal Code, for the memorial sign
249	249	program under Section 201.909, Transportation Code (Art. 102.0184,
250	250	Code of Criminal Procedure) . . . not to exceed $300.
251	251	(b) Section 102.0215, Government Code, is repealed.
252	252	SECTION 8. Section 411.081(e), Government Code, is amended
253	253	to read as follows:
254	254	(e) A person is entitled to petition the court under
255	255	Subsection (d) only if during the period of the deferred
256	256	adjudication community supervision for which the order of
257	257	nondisclosure is requested and during the applicable period
258	258	described by Subsection (d)(1), (2), or (3), as appropriate, the
259	259	person is not convicted of or placed on deferred adjudication
260	260	community supervision under Section 5, Article 42.12, Code of
261	261	Criminal Procedure, for any offense other than an offense under the
262	262	Transportation Code punishable by fine only. A person is not
263	263	entitled to petition the court under Subsection (d) if the person
264	264	was placed on the deferred adjudication community supervision for
265	265	or has been previously convicted or placed on any other deferred
266	266	adjudication for:
267	267	(1) an offense requiring registration as a sex
268	268	offender under Chapter 62, Code of Criminal Procedure;
269	269	(2) an offense under Section 20.04, Penal Code,
270	270	regardless of whether the offense is a reportable conviction or
271	271	adjudication for purposes of Chapter 62, Code of Criminal
272	272	Procedure;
273	273	(3) an offense under Section 19.02, 19.03, 22.04,
274	274	22.041, 25.07, or 42.072, Penal Code; [or]
275	275	(4) any other offense involving family violence, as
276	276	defined by Section 71.004, Family Code; or
277	277	(5) an offense under Section 49.04, 49.045, 49.05,
278	278	49.06, or 49.065, Penal Code.
279	279	SECTION 9. Sections 49.09(a), (b), and (g), Penal Code, are
280	280	amended to read as follows:
281	281	(a) Except as provided by Subsection (b), an offense under
282	282	Section 49.04, 49.045, 49.05, 49.06, or 49.065 is a Class A
283	283	misdemeanor, with a minimum term of confinement of 30 days, if it is
284	284	shown on the trial of the offense that the person has previously
285	285	been convicted one time of an offense relating to the operating of a
286	286	motor vehicle while intoxicated, an offense of operating an
287	287	aircraft while intoxicated, an offense of operating a watercraft
288	288	while intoxicated, or an offense of operating or assembling an
289	289	amusement ride while intoxicated.
290	290	(b) An offense under Section 49.04, 49.045, 49.05, 49.06, or
291	291	49.065 is a felony of the third degree if it is shown on the trial of
292	292	the offense that the person has previously been convicted:
293	293	(1) one time of an offense under Section 49.08 or an
294	294	offense under the laws of another state if the offense contains
295	295	elements that are substantially similar to the elements of an
296	296	offense under Section 49.08; or
297	297	(2) two times of any other offense relating to the
298	298	operating of a motor vehicle while intoxicated, operating an
299	299	aircraft while intoxicated, operating a watercraft while
300	300	intoxicated, or operating or assembling an amusement ride while
301	301	intoxicated.
302	302	(g) A conviction may be used for purposes of enhancement
303	303	under this section or enhancement under Subchapter D, Chapter 12,
304	304	but not under both this section and Subchapter D. A deferred
305	305	adjudication for an offense under Section 49.04, 49.045, 49.05,
306	306	49.06, or 49.065 is considered a conviction for purposes of
307	307	enhancement of penalties under this section or Subchapter D,
308	308	Chapter 12.
309	309	SECTION 10. Subchapter K, Chapter 201, Transportation Code,
310	310	is amended by adding Section 201.9095 to read as follows:
311	311	Sec. 201.9095. MEMORIAL SIGN ACCOUNT. The memorial sign
312	312	account is created as a dedicated account in the general revenue
313	313	fund of the state treasury. Money in the account may be
314	314	appropriated only to the Texas Department of Transportation to pay
315	315	costs incurred in posting memorial signs under Section 201.909.
316	316	SECTION 11. Section 521.246, Transportation Code, is
317	317	amended to read as follows:
318	318	Sec. 521.246. IGNITION INTERLOCK DEVICE REQUIREMENT. (a)
319	319	If the person's license has been suspended after a conviction under
320	320	Sections 49.04-49.08 [Section 49.04, 49.07, or 49.08], Penal Code,
321	321	as [the judge, before signing an order, shall determine from the
322	322	criminal history record information maintained by the department
323	323	whether the person has any previous conviction under those laws.
324	324	[(b) As part of the order the judge may restrict the person
325	325	to the operation of a motor vehicle equipped with an ignition
326	326	interlock device if the judge determines that the person's license
327	327	has been suspended following a conviction under Section 49.04,
328	328	49.07, or 49.08, Penal Code. As] part of the order, the judge shall
329	329	restrict the person to the operation of a motor vehicle equipped
330	330	with an ignition interlock device [if the judge determines that:
331	331	[(1) the person has two or more convictions under any
332	332	combination of Section 49.04, 49.07, or 49.08, Penal Code; or
333	333	[(2) the person's license has been suspended after a
334	334	conviction under Section 49.04, Penal Code, for which the person
335	335	has been punished under Section 49.09, Penal Code].
336	336	(b) [(c)] The person shall obtain the ignition interlock
337	337	device at the person's own expense unless the court finds that to do
338	338	so is not in the best interest of justice and enters that finding in
339	339	the record. If the court determines that the person is unable to
340	340	pay for the device, the court may impose a reasonable payment
341	341	schedule for a term not to exceed twice the period of the court's
342	342	order.
343	343	(c) [(d)] The court shall require the ignition interlock
344	344	device to be installed not later than the 10th day after the date
345	345	the occupational license takes effect and shall order the ignition
346	346	interlock device to remain installed for at least half of the period
347	347	of supervision.
348	348	(d) [(e)] A person to whom this section applies may operate
349	349	a motor vehicle without the installation of an approved ignition
350	350	interlock device if:
351	351	(1) the person is required to operate a motor vehicle
352	352	in the course and scope of the person's employment;
353	353	(2) the vehicle is owned by the person's employer;
354	354	(3) the employer is not owned or controlled by the
355	355	person whose driving privilege is restricted;
356	356	(4) the employer is notified of the driving privilege
357	357	restriction; and
358	358	(5) proof of that notification is with the vehicle.
359	359	[(f) A previous conviction may not be used for purposes of
360	360	restricting a person to the operation of a motor vehicle equipped
361	361	with an interlock ignition device under this section if:
362	362	[(1) the previous conviction was a final conviction
363	363	under Section 49.04, 49.07, or 49.08, Penal Code, and was for an
364	364	offense committed more than 10 years before the instant offense for
365	365	which the person was convicted; and
366	366	[(2) the person has not been convicted of an offense
367	367	under Section 49.04, 49.07, or 49.08 of that code committed within
368	368	10 years before the date on which the instant offense for which the
369	369	person was convicted.]
370	370	SECTION 12. Section 521.2476(b), Transportation Code, is
371	371	amended to read as follows:
372	372	(b) The minimum standards shall require each vendor to:
373	373	(1) be authorized by the department to do business in
374	374	this state;
375	375	(2) install a device only if the device is approved
376	376	under Section 521.247;
377	377	(3) obtain liability insurance providing coverage for
378	378	damages arising out of the operation or use of devices in amounts
379	379	and under the terms specified by the department;
380	380	(4) install the device and activate any
381	381	anticircumvention feature of the device not later than the 10th day
382	382	[within a reasonable time] after the date the vendor receives
383	383	notice that installation is ordered by a court;
384	384	(5) install and inspect the device in accordance with
385	385	any applicable court order;
386	386	(6) repair or replace a device not later than 48 hours
387	387	after receiving notice of a complaint regarding the operation of
388	388	the device;
389	389	(7) remove a device not later than the 10th day after
390	390	the date the owner or operator of the vehicle requests removal and
391	391	provides a copy of a court order to the vendor showing that the
392	392	owner or operator is no longer restricted to the use of a motor
393	393	vehicle equipped with an ignition interlock device;
394	394	(8) submit a written report of any violation of a court
395	395	order to that court and to the person's supervising officer, if any,
396	396	not later than 48 hours after the vendor discovers the violation;
397	397	(9) [(8)] maintain a record of each action taken by
398	398	the vendor with respect to each device installed by the vendor,
399	399	including each action taken as a result of an attempt to circumvent
400	400	the device, until at least the fifth anniversary after the date of
401	401	installation;
402	402	(10) [(9)] make a copy of the record available for
403	403	inspection by or send a copy of the record to any court, supervising
404	404	officer, or the department on request; and
405	405	(11) [(10)] annually provide to the department a
406	406	written report of each service and ignition interlock device
407	407	feature made available by the vendor.
408	408	SECTION 13. Article 102.0184, Code of Criminal Procedure,
409	409	as added by this Act, applies only to a cost on conviction for an
410	410	offense committed on or after the effective date of this Act. An
411	411	offense committed before the effective date of this Act is covered
412	412	by the law in effect when the offense was committed, and the former
413	413	law is continued in effect for that purpose. For purposes of this
414	414	section, an offense was committed before the effective date of this
415	415	Act if any element of the offense was committed before that date.
416	416	SECTION 14. The Texas Department of Transportation by rule
417	417	shall ensure that a memorial sign posted under Section 201.909,
418	418	Transportation Code, is released at the end of the one-year posting
419	419	period to the person who requested the posting under Subsection (d)
420	420	of that section, regardless of whether the person was required to
421	421	submit a fee to help defray the costs of posting.
422	422	SECTION 15. (a) Except as otherwise provided by this Act,
423	423	the changes in law made by this Act apply only to an offense
424	424	committed on or after the effective date of this Act. An offense
425	425	committed before the effective date of this Act is governed by the
426	426	law in effect when the offense was committed, and the former law is
427	427	continued in effect for that purpose. For purposes of this section,
428	428	an offense was committed before the effective date of this Act if
429	429	any element of the offense was committed before that date.
430	430	(b) The changes in law made by this Act in amending Articles
431	431	17.441 and 42.12, Code of Criminal Procedure, and Section 521.246,
432	432	Transportation Code, relating to the time frame for installation
433	433	and removal of an ignition interlock device, apply only to a court
434	434	order entered on or after the effective date of this section. A
435	435	court order entered before the effective date of this section is
436	436	governed by the law in effect when the court order was entered, and
437	437	the former law is continued in effect for that purpose.
438	438	(c) The Department of Public Safety by rule shall establish
439	439	the minimum standards required by Section 521.2476(b),
440	440	Transportation Code, as amended by this Act, not later than
441	441	December 1, 2009.
442	442	SECTION 16. This Act takes effect September 1, 2009.