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  H.B. No. 1163
 
 
 
 
AN ACT
  relating to creating the criminal offense of boating while
  intoxicated with a child passenger; changing the eligibility for
  deferred adjudication community supervision.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 49, Penal Code, is amended by adding
  Section 49.061 to read as follows:
         Sec. 49.061.  BOATING WHILE INTOXICATED WITH CHILD
  PASSENGER. (a) A person commits an offense if:
               (1)  the person is intoxicated while operating a
  watercraft; and
               (2)  the watercraft being operated by the person is
  occupied by a passenger who is younger than 15 years of age. 
         (b)  An offense under this section is a state jail felony. 
         SECTION 2.  Sections 49.09(b) and (d), Penal Code, are
  amended to read as follows:
         (b)  An offense under Section 49.04, 49.045, 49.05, 49.06,
  49.061, 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.
         (d)  For the purposes of this section, a conviction for an
  offense under Section 49.04, 49.045, 49.05, 49.06, 49.061, 49.065,
  49.07, or 49.08 that occurs on or after September 1, 1994, is a
  final conviction, whether the sentence for the conviction is
  imposed or probated.
         SECTION 3.  Section 49.09(c)(3), Penal Code, is amended to
  read as follows:
               (3)  "Offense of operating a watercraft while
  intoxicated" means:
                     (A)  an offense under Section 49.06 or 49.061;
                     (B)  an offense under Section 49.07 or 49.08, if
  the vehicle operated was a watercraft;
                     (C)  an offense under Section 31.097, Parks and
  Wildlife Code, as that law existed before September 1, 1994;
                     (D)  an offense under Section 19.05(a)(2), as that
  law existed before September 1, 1994, if the vehicle operated was a
  watercraft; or
                     (E)  an offense under the laws of another state
  that prohibit the operation of a watercraft while intoxicated.
         SECTION 4.  Section 49.10, Penal Code, is amended to read as
  follows:
         Sec. 49.10.  NO DEFENSE. In a prosecution under Section
  49.031 [49.03], 49.04, 49.045, 49.05, 49.06, 49.061, 49.065, 49.07,
  or 49.08, the fact that the defendant is or has been entitled to use
  the alcohol, controlled substance, drug, dangerous drug, or other
  substance is not a defense.
         SECTION 5.  Section 106.041(g), Alcoholic Beverage Code, is
  amended to read as follows:
         (g)  An offense under this section is not a lesser included
  offense under Section 49.04, 49.045, [or] 49.06, or 49.061, Penal
  Code.
         SECTION 6.  Article 16.23(b), Code of Criminal Procedure, is
  amended to read as follows:
         (b)  Subsection (a) does not apply to a person who is accused
  of an offense under Section 49.04, 49.045, 49.05, 49.06, 49.061,
  49.065, 49.07, or 49.08, Penal Code.
         SECTION 7.  Article 17.441(a), Code of Criminal Procedure,
  is amended to read as follows:
         (a)  Except as provided by Subsection (b), a magistrate shall
  require on release that a defendant charged with a subsequent
  offense under Section 49.04, 49.05, [or] 49.06, or 49.061, Penal
  Code, or an offense under Section 49.045, 49.07, or 49.08 of that
  code:
               (1)  have installed on the motor vehicle owned by the
  defendant or on the vehicle most regularly driven by the defendant,
  a device that uses a deep-lung breath analysis mechanism to make
  impractical the operation of a motor vehicle if ethyl alcohol is
  detected in the breath of the operator; and
               (2)  not operate any motor vehicle unless the vehicle
  is equipped with that device.
         SECTION 8.  Article 18.01(j), Code of Criminal Procedure, is
  amended to read as follows:
         (j)  Any magistrate who is an attorney licensed by this state
  may issue a search warrant under Article 18.02(a)(10) to collect a
  blood specimen from a person who:
               (1)  is arrested for an offense under Section 49.04,
  49.045, 49.05, 49.06, 49.061, 49.065, 49.07, or 49.08, Penal Code;
  and
               (2)  refuses to submit to a breath or blood alcohol
  test.
         SECTION 9.  Article 18.067, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 18.067.  EXECUTION OF WARRANT FOR BLOOD SPECIMEN IN
  INTOXICATION OFFENSE. Notwithstanding any other law, a warrant
  issued under Article 18.02(a)(10) to collect a blood specimen from
  a person suspected of committing an intoxication offense under
  Section 49.04, 49.045, 49.05, 49.06, 49.061, 49.065, 49.07, or
  49.08, Penal Code, may be executed:
               (1)  in any county adjacent to the county in which the
  warrant was issued; and
               (2)  by any law enforcement officer authorized to make
  an arrest in the county of execution.
         SECTION 10.  Article 42A.102(b), Code of Criminal Procedure,
  is amended to read as follows:
         (b)  In all other cases, the judge may grant deferred
  adjudication community supervision unless:
               (1)  the defendant is charged with an offense:
                     (A)  under Section 20A.02, 20A.03, 49.045, 49.05,
  49.061, 49.065, 49.07, or 49.08, Penal Code;
                     (B)  under Section 49.04 or 49.06, Penal Code,
  and, at the time of the offense:
                           (i)  the defendant held a commercial
  driver's license or a commercial learner's permit; or
                           (ii)  the defendant's alcohol concentration,
  as defined by Section 49.01, Penal Code, was 0.15 or more;
                     (C)  for which punishment may be increased under
  Section 49.09, Penal Code;
                     (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; or
                     (E)  under Section 481.1123, Health and Safety
  Code, that is punishable under Subsection (d), (e), or (f) of that
  section;
               (2)  the defendant:
                     (A)  is charged with an offense under Section
  21.11, 22.011, 22.021, 43.04, or 43.05, Penal Code, regardless of
  the age of the victim, or a felony described by Article 42A.453(b),
  other than a felony described by Subdivision (1)(A) or (3)(B) of
  this subsection; and
                     (B)  has previously been placed on community
  supervision for an offense under Paragraph (A);
               (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) or (4), Penal Code; or
               (4)  the defendant is charged with an offense under
  Section 19.02, Penal Code, except that the judge may grant deferred
  adjudication community supervision on determining that the
  defendant did not cause the death of the deceased, did not intend to
  kill the deceased or another, and did not anticipate that a human
  life would be taken.
         SECTION 11.  Articles 42A.408(c) and (d), Code of Criminal
  Procedure, are amended to read as follows:
         (c)  The court shall require as a condition of community
  supervision that a defendant described by Subsection (b) have an
  ignition interlock 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 that device if:
               (1)  it is shown on the trial of the offense that an
  analysis of a specimen of the defendant's blood, breath, or urine
  showed an alcohol concentration level of 0.15 or more at the time
  the analysis was performed;
               (2)  the defendant is placed on community supervision
  after conviction of an offense under Sections 49.04-49.061
  [49.04-49.06], Penal Code, for which the defendant is punished
  under Section 49.09(a) or (b), Penal Code; or
               (3)  the court determines under Subsection (d) that the
  defendant has one or more previous convictions under Sections
  49.04-49.08, Penal Code.
         (d)  Before placing on community supervision a defendant
  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 defendant
  has one or more previous convictions under any of those sections. A
  previous conviction may not be used for purposes of restricting a
  defendant to the operation of a motor vehicle equipped with an
  ignition interlock device under Subsection (c) if:
               (1)  the previous conviction was a final conviction
  under Section 49.04, 49.045, 49.05, 49.06, 49.061, 49.07, or 49.08,
  Penal Code, and was for an offense committed before the beginning of
  the 10-year period preceding the date of the instant offense for
  which the defendant was convicted and placed on community
  supervision; and
               (2)  the defendant has not been convicted of an offense
  under Section 49.04, 49.045, 49.05, 49.06, 49.061, 49.07, or 49.08,
  Penal Code, committed within the 10-year period preceding the date
  of the instant offense for which the defendant was convicted and
  placed on community supervision.
         SECTION 12.  Section 12.203(a), Parks and Wildlife Code, is
  amended to read as follows:
         (a)  A person may apply to the committee for a reward to be
  paid from the operation game thief fund if the person furnishes
  information leading to the arrest and conviction of a person for a
  violation of this code or any of the following laws or a regulation
  adopted under this code or any of the following laws:
               (1)  Subchapter B, Chapter 365, Health and Safety Code;
               (2)  Subchapter E, Chapter 191, Natural Resources Code;
               (3)  Chapter 28 or Section 30.05, 31.03, 31.11, 37.10,
  49.06, 49.061, 49.07, or 49.08, Penal Code;
               (4)  Chapter 160, Tax Code; or
               (5)  Subchapter E, Chapter 7, or Subchapter D, Chapter
  26, Water Code.
         SECTION 13.  Section 524.011(a), Transportation Code, is
  amended to read as follows:
         (a)  An officer arresting a person shall comply with
  Subsection (b) if:
               (1)  the person is arrested for an offense under
  Section 49.04, 49.045, [or] 49.06, or 49.061, Penal Code, or an
  offense under Section 49.07 or 49.08 of that code involving the
  operation of a motor vehicle or watercraft, submits to the taking of
  a specimen of breath or blood and an analysis of the specimen shows
  the person had an alcohol concentration of a level specified by
  Section 49.01(2)(B), Penal Code; or
               (2)  the person is a minor arrested for an offense under
  Section 106.041, Alcoholic Beverage Code, or Section 49.04, 49.045,
  [or] 49.06, or 49.061, Penal Code, or an offense under Section 49.07
  or 49.08, Penal Code, involving the operation of a motor vehicle or
  watercraft and:
                     (A)  the minor is not requested to submit to the
  taking of a specimen; or
                     (B)  the minor submits to the taking of a specimen
  and an analysis of the specimen shows that the minor had an alcohol
  concentration of greater than .00 but less than the level specified
  by Section 49.01(2)(B), Penal Code.
         SECTION 14.  Section 524.015(b), Transportation Code, is
  amended to read as follows:
         (b)  A suspension may not be imposed under this chapter on a
  person who is acquitted of a criminal charge under Section 49.04,
  49.045, 49.06, 49.061, 49.07, or 49.08, Penal Code, or Section
  106.041, Alcoholic Beverage Code, arising from the occurrence that
  was the basis for the suspension. If a suspension was imposed before
  the acquittal, the department shall rescind the suspension and
  shall remove any reference to the suspension from the person's
  computerized driving record.
         SECTION 15.  Section 524.022(b), Transportation Code, is
  amended to read as follows:
         (b)  A period of suspension under this chapter for a minor
  is:
               (1)  60 days if the minor has not been previously
  convicted of an offense under Section 106.041, Alcoholic Beverage
  Code, or Section 49.04, 49.045, [or] 49.06, or 49.061, Penal Code,
  or an offense under Section 49.07 or 49.08, Penal Code, involving
  the operation of a motor vehicle or a watercraft;
               (2)  120 days if the minor has been previously
  convicted once of an offense listed by Subdivision (1); or
               (3)  180 days if the minor has been previously
  convicted twice or more of an offense listed by Subdivision (1).
         SECTION 16.  Section 524.023, Transportation Code, is
  amended to read as follows:
         Sec. 524.023.  APPLICATION OF SUSPENSION UNDER OTHER LAWS.
  (a) If a person is convicted of an offense under Section 106.041,
  Alcoholic Beverage Code, or Section 49.04, 49.045, 49.06, 49.061,
  49.07, or 49.08, Penal Code, and if any conduct on which that
  conviction is based is a ground for a driver's license suspension
  under this chapter and Section 106.041, Alcoholic Beverage Code,
  Subchapter O, Chapter 521, or Subchapter H, Chapter 522, each of the
  suspensions shall be imposed.
         (b)  The court imposing a driver's license suspension under
  Section 106.041, Alcoholic Beverage Code, or Chapter 521 or 522 as
  required by Subsection (a) shall credit a period of suspension
  imposed under this chapter toward the period of suspension required
  under Section 106.041, Alcoholic Beverage Code, or Subchapter O,
  Chapter 521, or Subchapter H, Chapter 522, unless the person was
  convicted of an offense under Article 6701l-1, Revised Statutes, as
  that law existed before September 1, 1994, Section 19.05(a)(2),
  Penal Code, as that law existed before September 1, 1994, Section
  49.04, 49.045, 49.06, 49.061, 49.07, or 49.08, Penal Code, or
  Section 106.041, Alcoholic Beverage Code, before the date of the
  conviction on which the suspension is based, in which event credit
  may not be given.
         SECTION 17.  Section 524.042(a), Transportation Code, is
  amended to read as follows:
         (a)  A suspension of a driver's license under this chapter is
  stayed on the filing of an appeal petition only if:
               (1)  the person's driver's license has not been
  suspended as a result of an alcohol-related or drug-related
  enforcement contact during the five years preceding the date of the
  person's arrest; and
               (2)  the person has not been convicted during the 10
  years preceding the date of the person's arrest of an offense under:
                     (A)  Article 6701l-1, Revised Statutes, as that
  law existed before September 1, 1994;
                     (B)  Section 19.05(a)(2), Penal Code, as that law
  existed before September 1, 1994;
                     (C)  Section 49.04, 49.045, [or] 49.06, or 49.061,
  Penal Code;
                     (D)  Section 49.07 or 49.08, Penal Code, if the
  offense involved the operation of a motor vehicle or a watercraft;
  or
                     (E)  Section 106.041, Alcoholic Beverage Code.
         SECTION 18.  Section 724.012(b), Transportation Code, is
  amended to read as follows:
         (b)  Subject to Subsection (a-1), a peace officer shall
  require the taking of a specimen of the person's breath or blood
  under any of the following circumstances if the officer arrests the
  person for an offense under Chapter 49, Penal Code, involving the
  operation of a motor vehicle or a watercraft and the person refuses
  the officer's request to submit to the taking of a specimen
  voluntarily:
               (1)  the person was the operator of a motor vehicle or a
  watercraft involved in an accident that the officer reasonably
  believes occurred as a result of the offense and, at the time of the
  arrest, the officer reasonably believes that as a direct result of
  the accident an individual other than the person has suffered
  bodily injury and been transported to a hospital or other medical
  facility for medical treatment;
               (2)  the offense for which the officer arrests the
  person is an offense under Section 49.045 or 49.061, Penal Code; or
               (3)  at the time of the arrest, the officer possesses or
  receives reliable information from a credible source that the
  person:
                     (A)  has been previously convicted of or placed on
  community supervision for an offense under Section 49.045, 49.061,
  49.07, or 49.08, Penal Code, or an offense under the laws of another
  state containing elements substantially similar to the elements of
  an offense under those sections; or
                     (B)  on two or more occasions, has been previously
  convicted of or placed on community supervision for an offense
  under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an
  offense under the laws of another state containing elements
  substantially similar to the elements of an offense under those
  sections.
         SECTION 19.  This Act takes effect September 1, 2023.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 1163 was passed by the House on May 2,
  2023, by the following vote:  Yeas 142, Nays 3, 1 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 1163 was passed by the Senate on May
  24, 2023, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor