History
Effective September 1st, 2019, the Texas Driver Responsibility Program (“DRP”) was repealed and replaced by Transportation Code 709.001. Previously under the DRP, those convicted of a DWI in Texas were required to pay a surcharge. The surcharge amount was $1,000 per year with the exceptions of the surcharge being $1,500 per year for a second or subsequent conviction within 36 months; and $2,000 for a first or subsequent conviction if it was shown that the blood alcohol content of the person was .15 or more at the time of analysis. This surcharge was not to be assessed for more than three years.
The New Code
However, under the Transportation Code 709.001, a new ‘superfine’ was to be imposed. The code states:
TRAFFIC FINE FOR CONVICTION OF CERTAIN
INTOXICATED DRIVER OFFENSES. (a) In this section, “offense relating to the operating of a motor vehicle while intoxicated” has the meaning assigned by Section 49.09, Penal Code.
(b) Except as provided by Subsection (c), in addition to the fine prescribed for the specific offense, a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated shall pay a fine of:
(1) $3,000 for the first conviction within a 36‑month period;
(2) $4,500 for a second or subsequent conviction within a 36‑month period; and
(3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.
(c) If the court having jurisdiction over an offense that is the basis for a fine imposed under this section makes a finding that the person is indigent, the court shall waive all fines and costs imposed on the person under this section.
(d) A person must provide information to the court in which the person is convicted of the offense that is the basis for the fine to establish that the person is The following documentation may be used as proof:
(1) a copy of the person’s most recent federal income tax return that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines;
(2) a copy of the person’s most recent statement of wages that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines; or
(3) documentation from a federal agency, state agency, or school district that indicates that the person or, if the person is a dependent as defined by Section 152, Internal Revenue Code of 1986, the taxpayer claiming the person as a dependent, receives assistance from:
(A) the food stamp program or the financial assistance program established under Chapter 31, Human Resources Code;
(B) the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786;
(C) the medical assistance program under Chapter 32, Human Resources Code;
(D) the child health plan program under Chapter 62, Health and Safety Code; or
(E) the national free or reduced‑price lunch program established under 42 S.C. Section 1751 et seq.
Added by Acts 2019, 86th Leg., R.S., Ch. 1094 (H.B. 2048), Sec. 14, eff. September 1, 2019.
A Change, Not a Change
At first glance, this Code seems to mimic the previous DRP as far as an additional financial requirement on DWI cases. However, there are some significant differences and legal issues. First, the law does not have any transition language that would extend the DRP. Therefore, those charged with a DWI before the September 1st, 2019 date would no longer be affected by the repealed DRP.
Additionally, there is a strong argument that the new transportation code would not be applied to any DWI charged before the September 1st, 2019 due to a violation of Ex Post Facto laws prohibited by the Texas and United States Constitution. An ex post facto law is one that: (1) punishes as a crime an act previously committed that was innocent when done; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts greater punishment than the law attached to the criminal offense when committed; or (4) deprives a person charged with a crime of any defense available at the time the act was committed. Peugh v. United States, 569 U.S. 530, 538‑39, 133 S. Ct. 2072, 186 L. Ed. 2d 84 (2013); Collins v. Youngblood, 497 U.S. 37, 41‑44, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002); Ex parte Davis, 947 S.W.2d 216, 219‑20 (Tex. Crim. App. 1996); Grimes v. State, 807 S.W.2d 582, 583‑84, 586‑87 (Tex. Crim. App. 1991).
Confusion in the Courts
Initially there was quite a bit of confusion within the courts on the application of the repeal of the DRP and the implementation of Code 709.001. However, in most jurisdictions, this is now settled that any DWI charged before September 1st, 2019 would have fallen under the now repealed DRP and no surcharge would be assessed. All DWIs charged after the September 1st, 2019 date would fall under the new code.
Interpretation of the New Code 709.001: Final Convictions
There are significant differences with the Transportation Code from the DRP that are invaluable to the defense. First, examine under section (b), “a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.” For many years under Texas law, “finally convicted” meant:
[I]t is . . . well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted. A successfully served probation is not available for enhancement purposes. The imposition of a sentence is required to establish the finality of a conviction. However, a probated sentence can turn into a final conviction if probation is revoked.Ex parte Pue, 552 S.W.3d 226, 230–31 (Tex. Crim. App. 2018).
Under Tex. Gov. Code § 311.023 and Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017), extratextual factors that may be considered in interpreting a statute include: (1) the object sought to be attained by the Legislature; (2) the circumstances under which the statute was enacted; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) the administrative construction of the statute; and (7) the title or caption, preamble, and any emergency provision.
When “finally convicted” language was added to Chapter 49 of the Penal code, it is presumed the legislature is aware of Pue, as well as other areas of the law using the same phrase.
“We presume the Legislature is aware of relevant case law when it enacts or modifies statutes. A statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it. Language in a statute is presumed to have been selected and used with care, and every word or phrase in a statute is presumed to have been intentionally used with a meaning and a purpose.” In re Allen, 366 S.W.3d 696, 706 (Tex. 2012).
Therefore, only a “probated sentence [that] turn[s] into a final conviction [by] probation [being] revoked” is a “final conviction” subject to the mandatory fines.
This interpretation of a final conviction is in line with the Texas District and County Attorney’s Association’s reading of the statute. Hence, most jurisdictions appear to be following suit with this interpretation and only applying the ‘superfine’ to cases with jail/prison sentences and not for probation. Probation only being a final conviction if the probated sentence is revoked.
Interpretation of the New Code 709.001: Section (c) Findings of Indigency
According to Section (c), if the court having jurisdiction over an offense that is the basis for a fine imposed under this section makes a finding that the person is indigent, the court SHALL waive all fines and costs imposed on the person under this section.
Section (d) of the code clearly defines the requirements that MUST be provided to the court to establish that the person is indigent. These conditions are included in the article above. Following is a standardized motion to waive the fine imposed by the code due to indigency.
Conclusion
We have seen the end of the DRP. Any DWI case that occurred prior to September 1st, 2019 will not be affected by Transportation Code 709.001 ‘superfines.’ Moving forward, ‘superfines’ should only be imposed on those whose DWI convictions are found to be final either through a jail/prison sentence or through the revocation of their probation.
If a ‘superfine’ is to be imposed, the defense may be able to meet the requirements to be found indigent. The defense must provide documentation to the court under section (d) of 709.001. If the court finds the defendant indigent, then the court must waive the fine imposed by the statute.
CAUSE NO.
STATE OF TEXAS | §
§ | IN THE COUNTY CRIMINAL |
vs. | § | COURT NO. |
§ | ||
CLIENT | § | DALLAS COUNTY, TEXAS |
MOTION TO WAIVE IMPOSITION OF FINE FOR CONVICTION OF CERTAIN INTOXICATED DRIVER OFFENSES UNDER TEXAS TRANSPORTATION CODE 709.001
COMES NOW DEFENDANT, in the above-styled and numbered cause and moves the Court to waive any and all fines under Texas Transportation Code 709.001. Under Section (c), if the court having jurisdiction over an offense that is the basis for a fine imposed under this section makes a finding that the person is indigent, the court shall waive all fines and costs imposed on the person under this section.
The Defendant offers as proof of their indigency the following information for this Court: (INSERT FACTS HERE)
The Court has made an affirmative finding that Defendant is indigent.
(1) a copy of the person’s most recent federal income tax return that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines;
(2) a copy of the person’s most recent statement of wages that shows that the person’s income or the per- son’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines; or
(3) documentation from a federal agency, state agency, or school district that indicates that the person or, if the person is a dependent as defined by Section 152, Internal Revenue Code of 1986, the taxpayer claiming the person as a dependent, receives assistance from:
(A) the food stamp program or the financial assistance program established under Chapter 31, Human Resources Code;
(B) the federal special supplemental nutrition program for women, infants, and children autho- rized by 42 U.S.C. Section 1786;
(C) the medical assistance program under Chapter 32, Human Resources Code;
(D) the child health plan program under Chapter 62, Health and Safety Code; or
(E) the national free or reduced-price lunch program established under 42 S.C. Section 1751 et seq.
Other documentation presented to this Court. (See attached Affidavit of Defendant)
WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court, after consideration of the attached documentation, grant Defendant’s Motion and waive all fines and costs imposed on the person under this section of Texas Transportation Code 709.001.
Respectfully submitted,
Attorney for Defendant
reached at or 972-943-8500.
