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Texas Penal Code, Chapter 49 - Intoxication and Alcoholic Beverage Offenses

Texas Penal Code, § 49.09.  ENHANCED OFFENSES AND PENALTIES.

        (a)  Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
        (b)  An offense under Section 49.04, 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.
        (c)  For the purposes of this section:
                (1)  "Offense relating to the operating of a motor vehicle while intoxicated" means:
                        (A)  an offense under Section 49.04 or 49.045;
                        (B)  an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;
                        (C)  an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;
                        (D)  an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;
                        (E)  an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle;  or
                        (F)  an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.
                (2)  "Offense of operating an aircraft while intoxicated" means:
                        (A)  an offense under Section 49.05;
                        (B)  an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;
                        (C)  an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), 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 an aircraft;  or
                        (E)  an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.
                (3)  "Offense of operating a watercraft while intoxicated" means:
                        (A)  an offense under Section 49.06;
                        (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.
                (4)  "Offense of operating or assembling an amusement ride while intoxicated" means:
                        (A)  an offense under Section 49.065;
                        (B)  an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride;  or
                        (C)  an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.
        (d)  For the purposes of this section, a conviction for an offense under Section 49.04, 49.05, 49.06, 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.
        (e)  Except as provided by Subsection (f), a conviction may not be used for purposes of enhancement under this section if:
                (1)  the conviction was a final conviction under Subsection (d);
                (2)  the offense for which the person is being tried was committed more than 10 years after the latest of:
                        (A)  the date on which the judgment was entered for the previous conviction;
                        (B)  the date on which the person was discharged from any period of community supervision on which the person was placed for the previous conviction;
                        (C)  the date on which the person successfully completed any period of parole on which the person was released after serving a portion of the term to which the person was sentenced for the previous conviction;  or
                        (D)  the date on which the person completed serving any term for which the person was confined or imprisoned for the previous conviction;  and
                (3)  the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2).
        (f)  A conviction may be used for the purposes of enhancement under this section regardless of when the conviction occurred if the conviction was for an offense under:
                (1)  Section 49.08 involving the operation of a motor vehicle;  or
                (2)  Section 19.05(a)(2), as that law existed before September 1, 1994, involving the operation of a motor vehicle.
        (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.
        (h)  This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed.  The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated 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 requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device.  The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date.  If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. 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. Failure to comply with an order entered under this subsection is punishable by contempt.  For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.

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