HBA-KMH C.S.S.B. 128 76(R)    BILL ANALYSIS


Office of House Bill AnalysisC.S.S.B. 128
By: Nelson
Criminal Jurisprudence
5/23/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Under current federal law, states are required to enact and enforce laws
that meet the requirements for the Repeat Offender Program and the Open
Container Program.  Under each program, if the state provisions are not in
place and enforced by October 1, 2001, Texas could lose its ability to
spend construction dollars on traffic congestion relief and other highway
construction projects because one and one-half percent of the state's NHS,
STP, and IM funds, or approximately $20 million in federal highway dollars,
would be transferred to the highway safety or hazard elimination programs.
For each year that a state is noncompliant, the amount that will be
transferred will be increased to three percent of the state's NHS, STP, and
IM funds.  C.S.S.B. 128 brings Texas into compliance with federal law by
establishing that a repeat offender of some alcohol related offenses is
required to attend a drug or alcohol rehabilitation program.  The bill also
establishes that an occupant of a motor vehicle who is consuming alcohol or
possesses an open container of alcohol commits a Class C misdemeanor and
that the person need not be observed by a peace officer in the physical act
of consumption to commit the offense.  Additionally, the bill provides
punishments and an affirmative defense for an offense. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 49.03, Penal Code, as follows:

Sec. 49.03.  CONSUMPTION OR POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR
VEHICLE.  (a)  Establishes that a person commits an offense if that person
consumes an alcoholic beverage while operating a motor vehicle in a public
place, and deletes the condition that a peace officer observe that person
committing the offense.  
  
(b)  Establishes that an occupant of a motor vehicle located on a public
highway, or on the right-of-way of a public highway including a rest area,
comfort station, picnic area, roadside park, or scenic overlook commits an
offense if that person consumes an alcoholic beverage, or possesses in the
passenger area a bottle, can, or other receptacle that contains an
alcoholic beverage and has been opened, has a broken seal, or has the
contents partially removed. 

(c)  Establishes that it is an affirmative defense to prosecution under
Subsection (b), that the vehicle was not owned or being leased by the
defendant and the defendant did not know that the open container of
alcoholic beverage was in the vehicle or the person consuming an alcoholic
beverage or the receptacle containing the alcoholic beverage is in the
possession of a passenger in the living quarters of a house coach or house
trailer or a passenger in a motor vehicle designed, maintained, or used
primarily for the transportation of persons for compensation.   

(d) Provides that an offense under this section is a Class C misdemeanor
punishable by a fine not to exceed $50, including all court costs. 
 
SECTION 2.   Amends Sections 521.344(a) , (b) and (d), Transportation Code,
as follows: 

Sec.  521.344.  New Title: SUSPENSION FOR OFFENSES INVOLVING INTOXICATION.
(a) Increases the period of suspension of a person's license for conviction
of an offense under this section, if the person is punished under Section
49.09 (Enhanced Offenses and Penalties), Penal Code, to not less than one
year, rather than not less than 180 days. Makes a conforming change. 

(b) Makes a conforming change.

(d) Provides that the Department of Public Safety (DPS) is not prohibited
from revoking the person's license if the person is required to complete a
rehabilitation program unless the person was punished under Section 49.09,
Penal Code.  Makes a conforming change. 

SECTION 3.  Amends Section 724.048, Transportation Code, to delete text
providing that the determination of DPS or administrative law judge is a
civil matter, is independent of an is not an estoppel as to any matter in
issue in an adjudication of a criminal charge arising from the occurrence
that is the basis for the suspension or denial, and does not preclude
litigation of the same or similar facts in a criminal prosecution.  Deletes
text providing that the disposition of a criminal charge does not affect a
license suspension or denial under this chapter (Implied Consent) and is
not an estoppel as to any matter in issue in a suspension or denial
proceeding under this chapter.  Makes nonsubstantive changes. 

SECTION 4.  Amends Section 9(h), Article 42.12, Code of Criminal Procedure,
to require the judge, in any case involving a second or subsequent offense
of Driving While Intoxicated, Intoxication Assault, or Intoxication
Manslaughter under Sections 49.04, 49.07, and 49.08, Penal Code,
respectively, and involving the operation of a motor vehicle, to direct an
approved person to conduct an evaluation to determine the appropriate
action for a drug or alcohol rehabilitation program for a defendant.   

SECTION 5.  Amends Sections 13(g) and (k), Article 42.12, Code of Criminal
Procedure, to establish that Subsection (g) (which allows a jury to
recommend that a driver's license of a defendant not be suspended) does not
apply to a person punished under Section 49.09, Penal Code. Makes a
conforming change. 

SECTION 6.  Amends Section 16, Article 42.12, Code of Criminal Procedure,
by amending Subsection (b) and adding Subsection (b-1), to create an
exception to the amounts of specified community service hours that can be
ordered by the judge.  Prohibits the amount of community service work
ordered by the judge from being less than 30 eight-hour days for an offense
of Driving While Intoxicated under Section 49.04, Penal Code, that is
punished under Section 49.09(a), and prohibits the work from being less
than 60 eight-hour days for the offense of Driving While Intoxicated under
Section 49.04, Penal Code, that is punished under Section 49.09(b)
(relating to a person convicted two or more times). 

SECTION 7.  Effective date: September 1, 1999.
Makes application of SECTIONS 1, 2, 4, 5, and 6 of this Act prospective.
 
SECTION 8.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.S.B. 128 modifies the original in SECTION 1 (Section 49.03, Penal Code)
to include in the affirmative defense provided by Subsection (c) instances
in which the vehicle was not owned or being leased by the defendant and the
defendant did not know that the open container of alcoholic beverage was in
the vehicle.  The substitute further modifies the original to provide that
an offense under this section is punishable by a fine not to exceed $50,
including all court costs. 

C.S.S.B. 128 modifies the original by deleting SECTION 2 which proposed new
Subchapter I,  Chapter 502 (Registration of Vehicles), Transportation Code,
titled "Suspension of Registration of Repeat DWI Offenders.  SECTION 2 of
the original required the Department of Public Safety (DPS) to
automatically suspend all vehicle registrations of repeat DWI offenders and
provided the procedure for suspension.  SECTION 2 of the original further
provided a penalty for violation of the suspension.  Additionally, SECTION
2 of the original provided the procedure for the reinstatement of the
person's license. 

C.S.S.B. 128 modifies the original by deleting SECTION 3 which amended
Section 521.251, Transportation Code, to prohibit an order granting a
person an occupational license from taking effect  before the first
anniversary of the effective date of the suspension, if the person's
driver's license has been suspended for a second or subsequent conviction
under Section 49.04, 49.07, or 49.08, Penal Code, committed within five
years of the date on which the most recent preceding offense was committed.
SECTION 3 of the original also made a conforming change. 

C.S.S.B. 128 redesignates SECTION 4 of the original as SECTION 2 of the
substitute. 

C.S.S.B. 128 modifies the original by adding a new SECTION 3 (Section
724.048, Transportation Code).  For a more in-depth analysis of this
section please see the Section-by-Section Analysis of this bill. 

C.S.S.B. 128 redesignates SECTIONS 5-9 of the original as SECTIONS 4-8 of
the substitute. 

C.S.S.B. 128 modifies the original in SECTION 4 (Section 9(h), Article
42.12, Code of Criminal Procedure), by deleting proposed text which
required the judge to direct a supervision officer to conduct an evaluation
to determine the appropriateness of and course of conduct for alcohol or
drug rehabilitation for a defendant only if the defendant's repeat offense,
as described under this subsection, was committed within five years of the
date on which the most recent preceding offense was committed. 

C.S.S.B. 128 modifies the original in SECTION 7 to make conforming changes
concerning the application of the changes in law made by the various
sections of the Act.