HBA-DMD, NIK H.B. 3641 76(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 3641
By: Turner, Bob
Public Safety
7/30/1999
Enrolled


BACKGROUND AND PURPOSE 

Various offenses related to the operation of a motor vehicle are handled
through administrative hearings.  Patterning such hearings after the
administrative license revocation (ALR) program may make them more
efficient.  H.B. 3641 authorizes the public safety director to notify a
person of the revocation or suspension of the person's driver's license,
permit, or operating privilege.  This bill provides the time frame in which
the hearing is to take place, and requires the hearing to be heard by a
judge of a municipal court or a justice of the peace of the county in which
the license holder resides. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Department of Public Safety in
SECTION 1 (Section 521.291) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subchapter N, Chapter 521, Transportation Code, as
follows: 

SUBCHAPTER N. GENERAL PROVISIONS RELATING TO LICENSE
DENIAL, SUSPENSION, OR REVOCATION

Sec. 521.291. New title: RULES.  Requires the Department of Public Safety
(DPS) to adopt rules to administer the subchapter. 

Sec. 521.292. New title: DEPARTMENT'S DETERMINATION FOR LICENSE SUSPENSION.
Requires DPS to suspend a person's license if DPS determines that the
person has committed one of the enumerated offenses. Provides that a person
is a "habitual violator" if the person has four or more convictions that
arise out of different transactions in 12 consecutive months, or seven or
more convictions that arise out of different transactions in 24 months, if
the convictions are for moving violations of the traffic laws of any state,
Canadian province, or political subdivision, other than a violation under
certain specified sections. 

Sec. 521.293. New title: PERIOD OF SUSPENSION UNDER SECTION 521.292.
Provides that if a person does not request a hearing, the period of license
suspension under Section 521.292 is 90 days. Provides that if DPS
determines that the person operated a motor vehicle while the person's
license was suspended, canceled, disqualified, or revoked, the period of
license suspension is extended for an additional period of the lesser of
the term of the original suspension or one year. 

Sec. 521.294. New title: DEPARTMENT'S DETERMINATION FOR LICENSE REVOCATION.
Requires DPS to revoke a person's license if DPS determines that the person
is incapable of safely operating a motor vehicle or has committed one of
the specified acts or offenses. 

Sec. 521.295. New title: NOTICE OF DEPARTMENT'S DETERMINATION. Requires DPS
to send a notice of suspension or revocation by first class mail to a
person's address in the records of DPS, if DPS suspends the person's
license under Section 521.292 or revokes  a person's license under Section
521.294. Provides that notice is considered received on the fifth day after
it is mailed. 

Sec. 521.296. New title: NOTICE OF SUSPENSION OR REVOCATION. Provides that
a notice of suspension under Section 521.292 or revocation under Section
521.294 must state the reason and statutory grounds for the suspension or
revocation, the effective date of the suspension or revocation, the right
of the person to a hearing, how to request a hearing, and the period in
which the person must request a hearing. 

Sec. 521.297. New title: SUSPENSION OR REVOCATION EFFECTIVE DATE. Provides
that a license suspension under Section 521.292 or revocation under Section
521.294 takes effect on the 40th day after the date the person is
considered to have received notice of the suspension or revocation under
Section 521.295. 

Sec. 521.298. HEARING REQUEST. Requires a hearing to be held as provided by
Sections 521.295-521.303 if, not later than the 15th day after the date on
which the person is considered to have received the notice of the
suspension or revocation under Section 521.295(b), DPS receives at its
headquarters in Austin, in writing, including a facsimile transmission, or
by another manner prescribed by DPS, a request for such a hearing. 

Sec. 521.299. New title: HEARING DATE; RESCHEDULING. Requires a hearing
requested under Section 521.298 to be held not earlier than the 11th day
after the date on which the person requesting the hearing is notified of
the hearing.  Requires the hearing to be set for the earliest practical
date. Authorizes a hearing to be continued on a motion of the person, DPS,
both parties, or as necessary to accommodate the docket of the presiding
officer. Provides that a hearing request stays suspension or revocation of
a person's license until the date of the final decision of the presiding
officer. 

Sec. 521.300. New title: HEARING: LOCATION; PRESIDING OFFICER. (a) Requires
a hearing under this subchapter to be conducted in a municipal court or a
justice court in the county in which the person resides. Provides that the
judge of the municipal court or the justice is designated as the presiding
officer. 

(b) Provides that the presiding officer is entitled to receive a fee for
hearing the case if a fee is approved and set by the commissioners court in
which the person resides.  Prohibits the fee from exceeding $5 and requires
the fee to be paid from the general revenue fund of the county. 

(c) Authorizes the presiding officer to administer oaths and issue
subpoenas to compel the attendance of witnesses and the production of
relevant books and documents. 

Sec. 521.301. New title: ISSUE AT HEARING. (a) Provides that the issue that
must be proved at the hearing by a preponderance of the evidence is whether
the grounds for suspension or revocation stated in the notice are true. 

(b) Provides that if the presiding officer finds in the affirmative on that
issue, the suspension or revocation is sustained. 

(c) Requires DPS to suspend the person's license for the period specified
by the presiding officer, which may not be less than 30 days or more than
one year, if the presiding officer sustains a suspension. 

(d) Prohibits DPS from suspending or revoking the person's license if the
presiding officer does not find in the affirmative on that issue. 

(e) Provides that the decision of the presiding officer is final when
issued and signed. 

Sec. 521.302. New title: FAILURE TO APPEAR. Provides that a person who
requests a hearing under this subchapter and fails to appear without just
cause waives the right to a  hearing and the determination of DPS is final. 

Sec. 521.303. New title: CONTINUANCE. Provides that a continuance under
Section 521.299 stays the suspension or revocation of a license until the
date of the final decision of the presiding officer. 

Deletes existing Sections 521.291 (Authority to Suspend or Revoke License;
Notice; Hearing), 521.592 (Written Charges Required), 521.293
(Jurisdiction; Presiding Officer), 521.294 (Suspension; Revocation),
521.295 (Habitual Violators; Notice), Transportation Code. 

Sections 521.304-521.307  redesignated from Sections 521.296-521.300.
Deletes existing Section 521.301 (Order Binding). 

Sec. 521.308. APPEAL; JUDICIAL REVIEW. Redesignated from Section 521.302.
(a) Authorizes a person whose driver's license suspension or revocation has
been sustained by a presiding officer under this subchapter to appeal the
decision of the presiding officer, rather than authorizing a person whose
driver's license has been suspended, whose license suspension has been
probated under Section 521.303, or who is denied a license or whose
driver's license has been canceled or revoked by DPS to appeal the action
unless the suspension, cancellation, or revocation is automatic under this
chapter or Chapter 522 (Commercial Driver's Licenses). 

(b) Provides that to appeal the decision of the presiding officer, rather
than the action, the person must file a petition not later than the 30th
day after the date on which the DPS order was entered in the county court
at law of the county in which the person resides, or, if there is no county
at law, in the county court.  Provides that the person must send a
filestamped copy of the petition, certified by the clerk of the court in
which the petition is filed, to DPS by certified mail. 

(c) Makes no change.

(d) Requires the court to take testimony, examine the facts of the case,
and determine whether the petitioner is subject to the suspension or
revocation of a license under this subchapter, rather than whether the
petitioner is entitled to a license or is subject to the cancellation,
denial, suspension, or revocation of a license under this chapter. 

(e) Provides that a trial on appeal is a trial de novo, and the person,
rather than license holder, has the right to trial by jury. 

(f) Provides that the filing of a petition of appeal as provided by this
section stays an order of suspension, probated suspension, or revocation
until the earlier of the 91st day after the date the appeal petition is
filed or the date the trial is completed and final judgment is rendered.
Makes a conforming change. 

(g) Requires DPS, on expiration of the stay, to impose the suspension,
probated suspension, or revocation. Prohibits the stay from be extended,
and prohibits an additional stay from being granted. 

Sec. 521.309. PROBATION OF SUSPENSION. Redesignated from Section 521.303.
(a) Authorizes the presiding officer who conducted a hearing under this
subchapter, rather than Section 521.291, or the court that tries an appeal
under this subchapter, rather than Section 521.302, to recommend that the
suspension be probated on any terms and conditions considered necessary or
proper by the presiding officer or court, if it appears that justice and
the best interests of the public and the person, rather than the defendant,
will be served by the probation. 

(b) Prohibits the revocation of a license from being probated.

 (c) Redesignated from existing Subsection (b).

(d) Redesignated from existing Subsection (c).

(e) Requires the probationary period to be for a term of not less than 90
days or more than two years, if a presiding officer or a court probates a
suspension of a license under this section, rather than probates a
suspension of a driver's license or privilege under this section.
Redesignated from Subsection (d). 

Sec. 521.310.  PROBATION VIOLATION. Redesignated from Section 521.304.
Requires the director of DPS (director) to notify the person, rather than
license holder, and summon the person to appear at a hearing in the court
or before the presiding officer or judge who, recommended that the person
be placed on probation, rather than that the suspension be probated, after
notice as provided by Sections 521.295 and 521.296, rather than Section
521.291.  Makes conforming changes. Requires DPS, under certain conditions,
to take the action, rather than suspend the license, as determined in the
original hearing. 

Sec. 521.311. EFFECTIVE DATE OF ORDER. Redesignated from Section 521.305.
Adds an exception as provided by another section of this subchapter to the
contrary, to the provision that a decision under this subchapter takes
effect on the 11th day after the date on which an order is rendered. Makes
a nonsubstantive change. 

Sec. 521.312. Redesignated from Section 521.306. New title:  PERIOD OF
SUSPENSION OR REVOCATION; REINSTATEMENT OF LICENSE. Deletes the prohibition
that revocation of a license may not be probated. Prohibits DPS from
suspending a license for a period that exceeds one year, except as provided
by Subsection (c), Section 521.293(b), rather than of this section, or
Subchapter O. Prohibits DPS from reinstating a license revoked, rather than
suspended, under Section 521.294(5) until the court that filed the report
for which the license was revoked, rather than suspended, files an
additional report on final disposition of the case. Deletes existing text
which prohibits DPS from reinstating a license suspended or revoked unless
the person whose license was suspended or revoked applies for reinstatement
of the license and pays a $50 reinstatement fee. 

Sec. 521.313. REINSTATEMENT AND REISSUANCE; FEE. (a) Prohibits a license
suspended or revoked under this subchapter from being reinstated or another
license issued to the person until the person pays DPS a fee of $100 in
addition to any other fee required by law. 

(b) Provides that the payment of a reinstatement fee is not required if a
suspension or revocation under this subchapter is rescinded by DPS, or not
sustained by a presiding officer or a court.   

Sec. 521.314. Redesignated from Section 521.307. 

Sec. 521.315. Redesignated from Section 521.308. Authorizes, rather than
requires, DPS to require the license holder to surrender the license to
DPS. 

Sec. 521.316. Redesignated from Section 521.309.

Sec. 521.317. Redesignated from Section 521.310.

Sec. 521.318. Redesignated from Section 521.311.

Sec. 521.319. Redesignated from Section 521.312. Makes a nonsubstantive
change. 

Sec. 521.320. Redesignated from Section 521.314.

SECTION 2. Amends Section 521.344(h), Transportation Code, to make a
conforming change. 

 SECTION 3. Amends Section 522.087(b), Transportation Code, to make
conforming changes. 

SECTION 4. Amends Section 601.156(a), Transportation Code, to provide that
a hearing under this subchapter is subject to the notice and hearing
procedures of Sections 521.295-521.303 and to require it to be heard by
judge of a municipal court or a justice of the peace of the county, rather
than precinct, in which the person requesting the hearing resides. 

SECTION 5. Amends Section 601.158, Transportation Code, by amending
Subsection (b) and adding Subsections (c)-(f), as follows: 

(b) Provides that, to appeal a determination under Subsection (a), the
person must file a petition not later than the 30th day after the date of
the determination in the county court at law of the county in which the
person resides, or, if there is no county court at law, in the county court
of the county, rather than providing that an appeal under this section is
by trial de novo to the county court of the county in which the hearing was
held. 

(c)  Requires the person who files an appeal under this section to send a
file-stamped copy of the petition by certified mail to DPS at DPS
headquarters in Austin. Provides that the copy must be certified by the
clerk of the court in which the petition is filed. 
 
(d) Provides that the filing of a petition of appeals as provided by this
section stays an order of suspension until the earlier of the 91st day
after the date the appeal petition is filed or the date the trial is
completed and final judgment is rendered. 

(e) Requires DPS to impose the suspension on the expiration of the stay.
Prohibits the stay from being extended. Prohibits an additional stay from
being granted. 

(f) Provides that a trial on appeal is de novo.

SECTION 6. Amends Section 601.401, Transportation Code, as follows:

Sec. 601.401. New title: DEPARTMENT ACTIONS SUBJECT TO REVIEW. (a)
Authorizes an action, rather than act, of DPS to be appealed, unless an
order of suspension by DPS is based on an existing unsatisfied final
judgment rendered against a person by a court in this state arising out of
use of a motor vehicle in this state, or the suspension  is automatic under
Section 601.231(a).  

(b) Provides that, to appeal an action of DPS, the person must file a
petition not later than the 30th day after the date of the action in
specified locations. Deletes the provision that the petition may be filed
in the district court of the county in which the person resides if the
county does not have a county court at law and the county court does not
have the civil jurisdiction provided by general law for a county court. 

(c)  Requires a person who files an appeal under this section to send a
file-stamped copy of the petition by certified mail to DPS at the DPS
headquarters in Austin.  Provides that the copy must be certified by the
clerk of the court in which the petition is filed. 

(d) Provides that the filing of a petition of appeal as provided by this
section stays an order of suspension until the earlier of the 91st day
after the date the appeal petition is filed or the date the trial is
completed and final judgment is rendered. 

(e) Requires DPS to impose the suspension on the expiration of the stay.
Prohibits the suspension from being extended, and prohibits an additional
stay from being granted. 

(f) Provides that a trial on appeal is de novo.

SECTION 7. Amends  Section 2001.221, Government Code, to make conforming
changes. 

SECTION 8. Amends Section 2002.023, Government Code, to make conforming
changes. 
 
SECTION 9.  Repealer: Sections 601.402 (Time for Appeal), 601.403 (Trial),
601.404 (Stay of Act on Appeal), 601.405 (Filing of Evidence of Financial
Responsibility; Effect on Appeal), 601.406 (Temporary Stay of Department's
Order on Filing of Affidavit), 601.407 (Stay After Plea or Conviction),
601.408 (Stay After Acquittal or Dismissal), 601.409 (Maintenance of
Evidence of Financial Responsibility), and 601.410 (Limit on Courts),
Transportation Code. 

SECTION 10.  Effective date: September 1, 2000.
    Makes application of this Act prospective.

SECTION 11. Emergency clause.