Don't Pop That Top

Road Money Tied to Bill

Why the apparent change of heart? This time around, legislators are having to seriously consider an open container law, or else risk giving up millions in federal highway construction funds. In 1998, the federal government passed the "Transportation Equity Act for the 21st Century," which penalizes states that do not pass an open container and two other drunk driving laws, by shifting a percentage of federal highway construction funds to "highway safety programs." Hill's bill includes two of the federal mandates -- one is the open container portion and the other sets minimum penalties for repeat offenders. (Hill is ignoring the third mandate, checkpoints, which he and other legislators say would be too oppressive.)

For Texas, the cost of not passing the bill is significant. For each provision that is not passed by October 1, 2000, Texas would see $21 million per year diverted. And after 2002, the penalties double. That could mean doing without $120 million in highway construction funding in the next biennium. State officials say they are desperate for the funds; NAFTA has caused tremendous wear and tear on Texas highways, and the state is depending on federal dollars to fund a majority of needed projects, says Texas Dept. of Transportation Commissioner David Laney. "We are stretched to the hilt, and failure to pass this bill would severely cripple our construction programs," Laney pleaded, when testifying before the House committee last month.

Drunk driving victims are also eager to see Texas pass an open container law. Ten years ago, Joyce Hunt's three-year-old son, Mitchie, was nearly killed when his father, who was drunk, crashed into a concrete barrier at about 90 miles per hour. Both survived, but Mitchie sustained extensive injuries, including a broken back and femur and massive internal damage, and was left a paraplegic. There was no mistaking the fact that Mitchie's father was drinking at the time of the accident. Hunt explains that, on the night of the crash, she was sitting next to her son in the emergency room and could smell the evidence. "His father had been drinking beer," says Hunt. "The can hit him and bruised him on the head really bad. He was soaked in beer." Hunt believes an open container law could have prevented the accident involving her son. "We just don't know. I wish I would have had that chance," she said.

The threat of losing the highway money and a growing sympathy for drunk driving victims seem to be helping Hill's cause. Hinojosa believes that if the state passes an open container law now, Texans will eventually get used to the idea that they no longer have a "God-given right" to drink while they drive. "People may grumble and gripe about it, but our children will think nothing of it," he said.

And while the bill still has to make it through the Senate, the wheels there have already been getting greased. At a March 10 press conference, Sen. Ken Armbrister -- who heads the Criminal Justice Committee that approved the bill Wednesday -- said that with so many highway construction funds at stake, Texas will "very definitely" pass an open container law this session. And Gov. George W. Bush also supports the bill.

House Floor Capers

But on Tuesday, the day that Hill's bill was to be heard on the House floor, Rep. Ron Wilson, D-Houston, threw him a curve. Wilson, in presenting his bill on alcohol licensing, had slipped in the open container language -- without informing Hill. And Wilson was encouraging opposition to that section of the bill. For example, when asked about the federal government's definition of "open container," which states, among other things, that the contents must be "partially removed," Wilson responded by noting that even one drop of alcohol could bring a citation. And when one legislator rhetorically asked whether or not collectors of cans would have to stash their cans in the trunk, Wilson smirked, "I think it's possible that those little homeless folks on the road with their little shopping carts will have to run for the hills." By the time Wilson's bill passed, he had accepted numerous amendments that weakened the open container section.

In an interview the previous evening, Wilson shed some light on his maneuver. He said he had wanted to pass an open container law for a long time but found the bill's language, as mandated by the federal government, too severe. "It's another excuse to stop my folks on the road," said Wilson, who is African-American. Nor was Wilson apologetic about not telling Hill about his ploy. "I'm not in the business of holding hands around here," he said.

By the time Hill got the chance to present his version of the open container bill, the environment was less than friendly. Hill delivered his opening remarks to a noisy floor, and, as soon as he finished, a group of opponents were in ready position at the back microphone. Rep. Ron Lewis, D-Mauriceville, was one of several legislators who were angered that the bill would deny passengers the right to drink in a car, even after selecting a designated driver. Lewis said, for example, that a group of people getting off work after a long day should be allowed to drink on their way home as long as the driver refrains. "I believe we should have strong laws against driving under the influence, but I also have strong beliefs of individual freedoms for people that are not committing crimes against the public. Where is this going to save lives?" Lewis asked. Rep. Patricia Gray, D-Galveston, was one of only a few people who spoke in favor of the bill. "There just aren't that many distances that we have to travel from work to our homes that we just can't go 20 or 30 minutes without that beer."

Rep. Harold Dutton, D-Houston, hit on legislators' resentments about having to comply with federal mandates. He drew a cheer when he said, "We ought to send a message back to Washington that Washington ought to manage Washington's business and let Texans manage Texans' business." But in the end, the open container portion of the bill remained mostly intact. Dutton was successful at passing one amendment, which allows those caught with open containers to be acquitted if they could prove they did not know the container was in the car, but Hill believes this will be promptly removed in the Senate. The repeat offender portion of the bill, however, which included harsh penalties, did not survive.

When the dust cleared, legislators on Wednesday gave final approval to the open container portion, with a 72-66 vote. But if constituents believe that legislators courageously defied the liquor lobby on this, they're mistaken. According to Randy Yarbrough, assistant administrator for the Texas Alcoholic Beverage Commission, representatives from the alcohol beverage industry stated earlier in the session that they "would not take a position" on either the open container bill or the .08% bill, which lowers the legal blood alcohol content of someone accused of drunk driving from .1% to .08%. That measure passed in both houses.

Yarbrough also said that Wilson's licensing bill contains "special interest bills" within it. For example, one of the provisions requires that TABC prove three criteria before it can hold a wholesaler responsible for the actions of an alcohol delivery person, a stipulation that Yarbrough says "ties our hands from prosecuting beer and wine distributors." Five alcohol industry representatives registered support for Wilson's bill when it was presented at the Licensing and Administrative Procedures Committee, a committee Wilson chairs.

But Wilson denies arranging a quid pro quo with the lobby. "Trust me," he laughed, "that substitute [the bill he brought to the floor] is not

an alcoholic beverage substitute." Wilson noted that he had also included an "Alcohol Awareness Program" in his bill, which teaches alcohol awareness in schools. "Do you think that came from them?" he asked.

Hill remains skeptical. "If the bill didn't have that highway money tied to it, we'd probably still be fighting that fight trying to get it through the House committee."

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