§ 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[0], an
offense of operating an aircraft while intoxicated[0], an offense of
operating a watercraft while intoxicated[0], or an offense of
operating or assembling an amusement ride while intoxicated[0].
(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[0], operating an
aircraft while intoxicated[0], operating a watercraft while
intoxicated[0], or operating or assembling an amusement ride while
intoxicated[0].
(c) For the purposes of this section:
(1) "Offense relating to the operating of a motor
vehicle while intoxicated[0]" 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[0].
(2) "Offense of operating an aircraft while
intoxicated[0]" 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[0].
(3) "Offense of operating a watercraft while
intoxicated[0]" 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[0].
(4) "Offense of operating or assembling an amusement
ride while intoxicated[0]" 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[0]
or the assembly of a mobile amusement ride while intoxicated[0].
(d) For the purposes of this section, a conviction for an
offense under Section 49.04, 49.045, 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) Repealed by Acts 2005, 79th Leg., ch. 996, § 3.
(f) Repealed by Acts 2005, 79th Leg., ch. 996, § 3.
(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[0] 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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