HBA-KDB C.S.H.B. 2387 77(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2387
By: Dunnam
Criminal Jurisprudence
4/18/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Under current law, in a hearing for suspension or denial of a driver's
license because of a person's refusal to give a specimen, the determination
of the Department of Public Safety or an administrative law judge is
independent of and 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.  However, for the purpose
of relieving parties of the cost, conserving judicial resources, and
preventing inconsistent decisions, the collateral estoppel doctrine, which
is an affirmative defense barring a party from re-litigating an issue
determined against that party in an earlier action even if the second
action differs significantly from the earlier one, may need to be restored.
C.S.H.B. 2387 restores the collateral estoppel doctrine in relation to a
hearing for suspension or denial of a driver's license because of a
person's refusal to give a specimen. 

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. 

ANALYSIS

C.S.H.B. 2387 amends the Transportation Code to add the issue of whether
the person's alcohol concentration of .08 was reliably established to the
list of issues that must be proved at a hearing by the preponderance of the
evidence.   

The bill requires a copy of any audio or video recording made at the scene
of the arrest to be submitted to the attorneys for the  Department of
Public Safety and the prosecuting agency not later than the fifth day after
the date of the person's arrest.  The bill includes any software used and
other technical data in the possession of the state to the full information
concerning the analysis of a specimen requested by a peace officer that is
required to be made available to a person who has given the specimen or the
person's attorney. 

The bill repeals the provision relating to the relationship of an
administrative proceeding to a criminal proceeding. 

EFFECTIVE DATE

September 1, 2001.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 2387 modifies the original bill by removing the provision that the
Texas Rules of Appellate Procedure govern an appeal from a decision to
suspend a driver's license for failure to pass a test for intoxication.
The substitute requires a copy of any audio or video recording made at the
scene of the arrest to be submitted to the attorneys for the Department of
Public Safety and the prosecuting agency not later  than the fifth day
after the person's arrest.  The original required such a copy to be
promptly submitted to the prosecuting agency.