CHAPTER 49. INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES

State Codes and Statutes

Statutes > Texas > Penal-code > Title-10-offenses-against-public-health-safety-and-morals > Chapter-49-intoxication-and-alcoholic-beverage-offenses

PENAL CODE

TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS

Sec. 49.01. DEFINITIONS. In this chapter:

(1) "Alcohol concentration" means the number of grams of alcohol

per:

(A) 210 liters of breath;

(B) 100 milliliters of blood; or

(2) "Intoxicated" means:

(A) not having the normal use of mental or physical faculties by

reason of the introduction of alcohol, a controlled substance, a

drug, a dangerous drug, a combination of two or more of those

substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.

(3) "Motor vehicle" has the meaning assigned by Section

32.34(a).

(4) "Watercraft" means a vessel, one or more water skis, an

aquaplane, or another device used for transporting or carrying a

person on water, other than a device propelled only by the

current of water.

(5) "Amusement ride" has the meaning assigned by Section

2151.002, Occupations Code.

(6) "Mobile amusement ride" has the meaning assigned by Section

2151.002, Occupations Code.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994. Amended by Acts 1999, 76th Leg., ch. 234, Sec. 1, eff.

Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1364, Sec. 8, eff. Jan.

1, 2000; Acts 2001, 77th Leg., ch. 1420, Sec. 14.707, eff. Sept.

1, 2001.

Sec. 49.02. PUBLIC INTOXICATION. (a) A person commits an

offense if the person appears in a public place while intoxicated

to the degree that the person may endanger the person or another.

(a-1) For the purposes of this section, a premises licensed or

permitted under the Alcoholic Beverage Code is a public place.

(b) It is a defense to prosecution under this section that the

alcohol or other substance was administered for therapeutic

purposes and as a part of the person's professional medical

treatment by a licensed physician.

section is a Class C misdemeanor.

(d) An offense under this section is not a lesser included

offense under Section 49.04.

(e) An offense under this section committed by a person younger

than 21 years of age is punishable in the same manner as if the

minor committed an offense to which Section 106.071, Alcoholic

Beverage Code, applies.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994. Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 12, eff.

Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

68, Sec. 25, eff. September 1, 2007.

Sec. 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE.

(a) In this section:

(1) "Open container" means a bottle, can, or other receptacle

that contains any amount of alcoholic beverage and that is open,

that has been opened, that has a broken seal, or the contents of

which are partially removed.

(2) "Passenger area of a motor vehicle" means the area of a

motor vehicle designed for the seating of the operator and

passengers of the vehicle. The term does not include:

(A) a glove compartment or similar storage container that is

locked;

(B) the trunk of a vehicle; or

vehicle does not have a trunk.

(3) "Public highway" means the entire width between and

immediately adjacent to the boundary lines of any public road,

street, highway, interstate, or other publicly maintained way if

any part is open for public use for the purpose of motor vehicle

travel. The term includes the right-of-way of a public highway.

(b) A person commits an offense if the person knowingly

possesses an open container in a passenger area of a motor

vehicle that is located on a public highway, regardless of

whether the vehicle is being operated or is stopped or parked.

Possession by a person of one or more open containers in a single

criminal episode is a single offense.

at the time of the offense the defendant was a passenger in:

(1) the passenger area of a motor vehicle designed, maintained,

or used primarily for the transportation of persons for

compensation, including a bus, taxicab, or limousine; or

(2) the living quarters of a motorized house coach or motorized

house trailer, including a self-contained camper, a motor home,

or a recreational vehicle.

(d) An offense under this section is a Class C misdemeanor.

(e) A peace officer charging a person with an offense under this

section, instead of taking the person before a magistrate, shall

issue to the person a written citation and notice to appear that

contains the time and place the person must appear before a

magistrate, the name and address of the person charged, and the

offense charged. If the person makes a written promise to appear

before the magistrate by signing in duplicate the citation and

notice to appear issued by the officer, the officer shall release

the person.

Added by Acts 2001, 77th Leg., ch. 969, Sec. 2, eff. Sept. 1,

2001.

Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an

offense if the person is intoxicated while operating a motor

vehicle in a public place.

(b) Except as provided by Subsection (c) and Section 49.09, an

offense under this section is a Class B misdemeanor, with a

minimum term of confinement of 72 hours.

that at the time of the offense the person operating the motor

vehicle had an open container of alcohol in the person's

immediate possession, the offense is a Class B misdemeanor, with

a minimum term of confinement of six days.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.55, eff.

Sept. 1, 1995.

Sec. 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER.

(a) A person commits an offense if:

(1) the person is intoxicated while operating a motor vehicle in

a public place; and

(2) the vehicle 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.

Added by Acts 2003, 78th Leg., ch. 787, Sec. 1, eff. Sept. 1,

2003.

Sec. 49.05. FLYING WHILE INTOXICATED. (a) A person commits an

offense if the person is intoxicated while operating an aircraft.

(b) Except as provided by Section 49.09, an offense under this

section is a Class B misdemeanor, with a minimum term of

confinement of 72 hours.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994.

Sec. 49.06. BOATING WHILE INTOXICATED. (a) A person commits an

offense if the person is intoxicated while operating a

watercraft.

(b) Except as provided by Section 49.09, an offense under this

section is a Class B misdemeanor, with a minimum term of

confinement of 72 hours.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994.

Sec. 49.065. ASSEMBLING OR OPERATING AN AMUSEMENT RIDE WHILE

INTOXICATED. (a) A person commits an offense if the person is

intoxicated while operating an amusement ride or while assembling

a mobile amusement ride.

(b) Except as provided by Subsection (c) and Section 49.09, an

offense under this section is a Class B misdemeanor with a

minimum term of confinement of 72 hours.

that at the time of the offense the person operating the

amusement ride or assembling the mobile amusement ride had an

open container of alcohol in the person's immediate possession,

the offense is a Class B misdemeanor with a minimum term of

confinement of six days.

Added by Acts 1999, 76th Leg., ch. 1364, Sec. 9, eff. Jan. 1,

2000.

Sec. 49.07. INTOXICATION ASSAULT. (a) A person commits an

offense if the person, by accident or mistake:

(1) while operating an aircraft, watercraft, or amusement ride

while intoxicated, or while operating a motor vehicle in a public

place while intoxicated, by reason of that intoxication causes

serious bodily injury to another; or

(2) as a result of assembling a mobile amusement ride while

intoxicated causes serious bodily injury to another.

(b) In this section, "serious bodily injury" means injury that

creates a substantial risk of death or that causes serious

permanent disfigurement or protracted loss or impairment of the

function of any bodily member or organ.

section is a felony of the third degree.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 10, eff.

Jan. 1, 2000.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

662, Sec. 2, eff. September 1, 2007.

Sec. 49.08. INTOXICATION MANSLAUGHTER. (a) A person commits an

offense if the person:

(1) operates a motor vehicle in a public place, operates an

aircraft, a watercraft, or an amusement ride, or assembles a

mobile amusement ride; and

(2) is intoxicated and by reason of that intoxication causes the

death of another by accident or mistake.

(b) Except as provided by Section 49.09, an offense under this

section is a felony of the second degree.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 11, eff.

Jan. 1, 2000.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

662, Sec. 3, eff. September 1, 2007.

Sec. 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.

(b-1) An offense under Section 49.07 is a felony of the second

degree if it is shown on the trial of the offense that the person

caused serious bodily injury to a peace officer, a firefighter,

or emergency medical services personnel while in the actual

discharge of an official duty.

(b-2) An offense under Section 49.08 is a felony of the first

degree if it is shown on the trial of the offense that the person

caused the death of a person described by Subsection (b-1).

(b-3) For the purposes of Subsection (b-1):

(1) "Emergency medical services personnel" has the meaning

assigned by Section 773.003, Health and Safety Code.

(2) "Firefighter" means:

(A) an individual employed by this state or by a political or

legal subdivision of this state who is subject to certification

by the Texas Commission on Fire Protection; or

(B) a member of an organized volunteer fire-fighting unit that:

(i) renders fire-fighting services without remuneration; and

(ii) conducts a minimum of two drills each month, each at least

two hours long.

(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;

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;

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;

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

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, 49.045, 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, Sec. 3, eff.

September 1, 2005.

(f) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff.

September 1, 2005.

(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.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.56, eff.

Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 21, eff. Sept.

1, 1995; Acts 1999, 76th Leg., ch. 1364, Sec. 12, 13, eff. Jan.

1, 2000; Acts 2001, 77th Leg., ch. 648, Sec. 1, 2, eff, Sept. 1,

2001; Acts 2001, 77th Leg., ch. 969, Sec. 3, eff. Sept. 1, 2001;

Acts 2003, 78th Leg., ch. 787, Sec. 2, eff. Sept. 1, 2003; Acts

2003, 78th Leg., ch. 1275, Sec. 2(117), eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

996, Sec. 1, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

996, Sec. 3, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

662, Sec. 4, eff. September 1, 2007.

Sec. 49.10. NO DEFENSE. In a prosecution under Section 49.03,

49.04, 49.045, 49.05, 49.06, 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.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 14, eff.

Jan. 1, 2000; Acts 2003, 78th Leg., ch. 787, Sec. 3, eff. Sept.

1, 2003.

Sec. 49.11. PROOF OF MENTAL STATE UNNECESSARY. (a)

Notwithstanding Section 6.02(b), proof of a culpable mental state

is not required for conviction of an offense under this chapter.

(b) Subsection (a) does not apply to an offense under Section

49.031.

Added by Acts 1995, 74th Leg., ch. 318, Sec. 22, eff. Sept. 1,

1995. Amended by Acts 2001, 77th Leg., ch. 969, Sec. 4, eff.

Sept. 1, 2001.

Sec. 49.12. APPLICABILITY TO CERTAIN CONDUCT. Sections 49.07

and 49.08 do not apply to injury to or the death of an unborn

child if the conduct charged is conduct committed by the mother

of the unborn child.

Added by Acts 2003, 78th Leg., ch. 822, Sec. 2.05, eff. Sept. 1,

2003.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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