By: Smith of Tarrant, Martinez Fischer, H.B. No. 189
Harless, et al.
A BILL TO BE ENTITLED
AN ACT
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.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Nicole "Lilly"
Lalime and Todd Levin Memorial Act.
SECTION 2. Chapter 17, Code of Criminal Procedure, is
amended by adding Article 17.442 to read as follows:
Art. 17.442. CONDITIONS REQUIRING ALCOHOL TESTING. (a) A
magistrate may require a defendant as a condition of release on bond
to obtain and use an alcohol monitoring device and to obtain and use
the device at the defendant's own expense.
(b) If a magistrate requires a defendant to obtain and use
an alcohol monitoring device under this article, the magistrate
must specify the date by which the defendant must begin using the
device.
(c) The magistrate may revoke the bond and order the
defendant arrested if the magistrate finds, after notice and an
opportunity for a hearing, that:
(1) the defendant failed to obtain and use an alcohol
monitoring device, as required by the magistrate;
(2) the defendant tampered with or otherwise attempted
to circumvent or disable the alcohol monitoring device;
(3) the alcohol monitoring device showed that the
defendant violated a condition of bond;
(4) the defendant otherwise did not submit to alcohol
testing; or
(5) the defendant failed to pay the costs of alcohol
testing, including the costs of an alcohol monitoring device, if:
(A) payment was ordered under Subsection (d) as a
condition of bond; and
(B) the magistrate determines that the defendant
is not indigent and is financially able to make the payments as
ordered.
(d) The costs of the alcohol monitoring device and
associated services may be:
(1) assessed as a cost of court;
(2) ordered paid as a condition of bond by the
defendant directly to the agency or service provider designated by
the magistrate under Subsection (e) in the same manner as a
defendant is required to pay fees under Article 17.441(d); or
(3) waived or reduced.
(e) The magistrate may designate an agency or service
provider to verify the installation of an alcohol monitoring device
and to monitor the defendant's use of the device.
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 49.045, 49.07, or 49.08
[Sections 49.04-49.08], Penal Code; [or]
(B) under Section 49.04, 49.05, 49.06, or 49.065,
Penal Code, if:
(i) at the time of the offense, the
defendant held a commercial driver's license or a commercial driver
learner's permit; or
(ii) during the commission of the offense,
the defendant caused injury to another person or damaged property
that belongs to another person;
(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. Section 5, Article 42.12, Code of Criminal
Procedure, is amended by adding Subsection (d-1) to read as
follows:
(d-1) If a judge places on deferred adjudication a defendant
convicted of an offense under Section 49.04, 49.05, 49.06, or
49.065, Penal Code, the judge shall order as a condition of
community supervision that the defendant serve not less than three
days in jail.
SECTION 5. Section 13, Article 42.12, Code of Criminal
Procedure, is amended by amending Subsection (i) and adding
Subsection (o) 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 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. The deep-lung
breath analysis mechanism described by this subsection must have
technology to provide continuous monitoring of the operator of the
motor vehicle to prevent fraudulent manipulation or circumvention
of the device that would allow operation of the motor vehicle by a
person who has recently consumed ethyl alcohol. 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 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 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.
(o) A judge granting deferred adjudication to a defendant
for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal
Code, may require the defendant to have an ignition interlock
device installed under Subsection (i), except that if an analysis
of a specimen of the person's blood or breath taken following an
arrest showed an alcohol concentration level of 0.15 or more at the
time the analysis was performed, the judge shall require the
defendant to have the device installed regardless of whether the
defendant would be required to have the device installed if the
defendant was convicted.
SECTION 6. Subchapter B, Chapter 103, Government Code, is
amended by adding Section 103.0217 to read as follows:
Sec. 103.0217. ADDITIONAL FEES IN CERTAIN CRIMINAL CASES:
CODE OF CRIMINAL PROCEDURE. A defendant who is ordered by the court
to obtain and use an alcohol monitoring device under Article
17.442, Code of Criminal Procedure, shall pay a fee in the manner
and amount set by the magistrate under that article.
SECTION 7. 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, 49.05, 49.06, or
49.065, Penal Code.
SECTION 8. Sections 49.09(b) and (g), Penal Code, are
amended to read as follows:
(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, 49.05, 49.06, or
49.065 is considered a conviction for purposes of enhancement of
penalties under this section or Subchapter D, Chapter 12.
SECTION 9. Chapter 49, Penal Code, is amended by adding
Section 49.091 to read as follows:
Sec. 49.091. MANDATORY MINIMUM SENTENCE FOLLOWING
REVOCATION OF DEFERRED ADJUDICATION. Notwithstanding the
provisions of Sections 49.04, 49.05, 49.06, and 49.065, the minimum
term of confinement for a defendant convicted of an offense under
one of those sections is 14 days if the defendant is initially
placed on deferred adjudication community supervision for the
offense and after a violation of the terms of supervision the judge
enters an order of conviction on final disposition of the case.
SECTION 10. Subchapter F, Chapter 521, Transportation Code,
is amended by adding Section 521.127 to read as follows:
Sec. 521.127. DRIVER'S LICENSE FOR PERSONS CONVICTED OF
CERTAIN INTOXICATED DRIVING OFFENSES. (a) In this section, "offense
relating to the operating of a motor vehicle while intoxicated" has
the meaning assigned by Section 49.09, Penal Code.
(b) Notwithstanding Section 521.347, a court in which a
person is convicted of an offense relating to the operating of a
motor vehicle while intoxicated shall require the person to
surrender to the court the person's driver's license. This section
applies to a person who has been convicted of four or more offenses
relating to the operation of a motor vehicle while intoxicated.
(c) A court that requires a person to surrender the person's
driver's license under Subsection (b) shall send to the department:
(1) a record of the person's conviction; and
(2) an indication that the driver's license issued to
the person is subject to the requirements of this section.
(d) A person who is required to surrender the person's
driver's license to the court under Subsection (b) may apply to the
department for the issuance of a new or duplicate license provided
that any applicable suspension period has expired.
(e) On the payment of all required fees, the department
shall issue to a person who applies for a new or duplicate license
under Subsection (d) a driver's license that includes a distinctive
symbol or marking on the face of the license identifying the license
holder as a person who has been convicted of an offense relating to
the operating of a motor vehicle while intoxicated. The department
by rule shall specify the symbol or marking required by this
subsection.
(f) A driver's license issued under this section must
include the symbol or marking required by Subsection (e) for the
following time periods:
(1) if the person to whom the license is issued has
been convicted four times of an offense relating to the operating of
a motor vehicle while intoxicated, until the fifth anniversary of
the later of:
(A) the date of that conviction; or
(B) the expiration of the period of suspension of
the person's license as a result of the conviction;
(2) if the person to whom the license is issued has
been convicted five times of an offense relating to the operating of
a motor vehicle while intoxicated, until the 10th anniversary of
the later of:
(A) the date of the person's most recent
conviction of an offense relating to the operating of a motor
vehicle while intoxicated; or
(B) the expiration of the period of suspension of
the person's license as a result of that conviction; or
(3) if the person to whom the license is issued has
been convicted six or more times of an offense relating to the
operating of a motor vehicle while intoxicated, permanently.
(g) The symbol or marking required by Subsection (e) is in
addition to any other information on the person's driver's license
required by this chapter or the department.
(h) On or after the expiration of the time period specified
by Subsection (f)(1) or (2), as applicable, a person issued a
driver's license under Subsection (e) may apply to the department
for a license that does not include the distinctive symbol or
marking.
SECTION 11. Section 521.247(c), Transportation Code, is
amended to read as follows:
(c) If the department approves a device, the department
shall notify the manufacturer of that approval in writing. Written
notice from the department to a manufacturer is admissible in a
civil or criminal proceeding in this state. The manufacturer shall
pay an amount not less than $500, as determined by the department,
to cover the costs [reimburse the department for any cost] incurred
by the department in approving the device.
SECTION 12. Section 521.2475(b), Transportation Code, is
amended to read as follows:
(b) Each [The department shall assess the cost of preparing
the evaluation equally against each] manufacturer of an approved
device shall annually pay to the department a reasonable amount not
less than $500, as determined by the department, to help defray
costs incurred in complying with Subsection (a) and in
administering this subchapter.
SECTION 13. Section 521.2476(d), Transportation Code, is
amended to read as follows:
(d) A vendor shall reimburse the department in a reasonable
amount not less than $450, as determined by the department, to cover
costs incurred in [for the reasonable cost of] conducting each
inspection of the vendor's facilities under this section.
SECTION 14. Section 521.251, Transportation Code, is
amended to read as follows:
Sec. 521.251. EFFECTIVE DATE OF OCCUPATIONAL LICENSE. (a)
If a person's license is suspended under Chapter 524 or 724 and the
person has not had a prior suspension arising from an
alcohol-related or drug-related enforcement contact in the five
years preceding the date of the person's arrest, an order under this
subchapter granting the person an occupational license takes effect
immediately. However, the court shall order the person to comply
with the counseling and rehabilitation program required under
Section 521.245.
(b) An order under this subchapter granting the person an
occupational license may not take effect before the 45th day after
the effective date of the person's driver's license suspension
under Chapter 524 or 724 if [If] the person's [driver's] license has
been suspended as a result of:
(1) an alcohol-related or drug-related enforcement
contact during the five years preceding the date of the person's
arrest; or
(2) [, the order may not take effect before the 91st
day after the effective date of the suspension.
[(c) If the person's driver's license has been suspended as
a result of a conviction under Section 49.04, 49.07, or 49.08, Penal
Code, during the five years preceding the date of the person's
arrest, the order may not take effect before the 181st day after the
effective date of the suspension.
[(d) Notwithstanding any other provision in this section,
if the person's driver's license has been suspended as a result of]
a second or subsequent conviction under Section 49.04, 49.045,
49.07, or 49.08, Penal Code, committed within five years of the date
on which the most recent preceding offense was committed[, an order
granting the person an occupational license may not take effect
before the first anniversary of the effective date of the
suspension].
(c) [(e)] For the purposes of this section,
"alcohol-related or drug-related enforcement contact" means a
driver's license suspension, disqualification, or prohibition
order under the laws of this state or another state resulting from:
(1) a conviction of an offense prohibiting the
operation of a motor vehicle while:
(A) intoxicated;
(B) under the influence of alcohol; or
(C) under the influence of a controlled
substance;
(2) a refusal to submit to the taking of a breath or
blood specimen following an arrest for an offense prohibiting the
operation of a motor vehicle while:
(A) intoxicated;
(B) under the influence of alcohol; or
(C) under the influence of a controlled
substance; or
(3) an analysis of a breath or blood specimen showing
an alcohol concentration of a level specified by Section 49.01,
Penal Code, following an arrest for an offense prohibiting the
operation of a motor vehicle while intoxicated [has the meaning
assigned by Section 524.001].
(d) For purposes of this section, a person has been
convicted if the person was adjudged guilty of the offense or
entered a plea of guilty or nolo contendere in return for a grant of
deferred adjudication, regardless of whether the sentence for the
offense was ever imposed or whether the sentence was probated and
person was subsequently discharged from community supervision.
SECTION 15. Subchapter I, Chapter 545, Transportation Code,
is amended by adding Section 545.429 to read as follows:
Sec. 545.429. CONVICTION FOR DRIVING WHILE INTOXICATED;
IMPOUNDMENT OR IMMOBILIZATION OF VEHICLE. (a) A court that convicts
a person for a third or subsequent offense under Section 49.04,
Penal Code, may order the sheriff of the county in which the court
has jurisdiction to impound or immobilize the motor vehicle
operated by the person at the time of the offense for a period not to
exceed seven days beginning on the day after the date the court
enters the conviction if the person:
(1) was an owner of the motor vehicle at the time of
the offense;
(2) is an owner of the motor vehicle on the date the
court enters the conviction; and
(3) is the primary operator of the motor vehicle on the
date the court enters the conviction.
(b) A sheriff acting under a court order issued under
Subsection (a) may require that the motor vehicle, prior to
immobilization, be taken to:
(1) a garage or other place of safety; or
(2) a garage designated or maintained by the county.
(c) Subsection (b) shall not apply if the owner of the
vehicle:
(1) designates, with permission of the sheriff, the
location where such vehicle shall be garaged or stored; and
(2) agrees to hold the sheriff and the county free of
any and all liability for any damage to the vehicle while such
vehicle is immobilized.
(d) Notwithstanding Article 18.23, Code of Criminal
Procedure, the person convicted of a third or subsequent offense
under Section 49.04, Penal Code, is liable for all removal and
storage fees incurred as a result of the impoundment or
immobilization of the motor vehicle and is not entitled to take
possession of the vehicle until those fees are paid.
SECTION 16. Section 708.102, Transportation Code, is
amended by amending Subsection (b) and adding Subsection (e) to
read as follows:
(b) Each year the department shall assess a surcharge on the
license of each person who during the preceding 36-month period has
been [finally] convicted of an offense relating to the operating of
a motor vehicle while intoxicated.
(e) In this section, a person is considered to have been
convicted of an offense if:
(1) a judgment, a sentence, or both a judgment and a
sentence are imposed on the person;
(2) the person receives community supervision,
deferred adjudication, or deferred disposition; or
(3) the court defers final disposition of the case or
imposition of the judgment and sentence.
SECTION 17. Sections 521.127 and 545.429, Transportation
Code, as added by this Act, apply only to a person who is convicted
of an offense on or after the effective date of this Act. A person
who was convicted of an offense before the effective date of this
Act is governed by the law in effect when the person was convicted,
and the former law is continued in effect for that purpose.
SECTION 18. (a) Except as provided by Subsection (b) of
this section, the change in law made by this Act applies 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) In a criminal action pending on or commenced on or after
the effective date of this Act, for an offense committed before the
effective date of this Act, the court may proceed in accordance with
Section 5(d), Article 42.12, Code of Criminal Procedure, as amended
by this Act, if the defendant so elects by written motion filed with
the trial court before the sentencing hearing begins.
SECTION 19. This Act takes effect September 1, 2011.