PENAL CODE CHAPTER 49.

INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES

§ 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
(C) 67 milliliters of urine.
(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, § 1.01, eff. Sept. 1,
1994. Amended by Acts 1999, 76th Leg., ch. 234, § 1, eff. Sept.
1, 1999; Acts 1999, 76th Leg., ch. 1364, § 8, eff. Jan. 1, 2000;
Acts 2001, 77th Leg., ch. 1420, § 14.707, eff. Sept. 1, 2001.

§ 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.
(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.
(c) Except as provided by Subsection (e), an offense under
this 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, § 1.01, eff. Sept. 1,
1994. Amended by Acts 1997, 75th Leg., ch. 1013, § 12, eff.
Sept. 1, 1997.

§ 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
(C) the area behind the last upright seat of the
vehicle, if the 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.
(c) It is an exception to the application of Subsection (b)
that 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, § 2, eff. Sept. 1, 2001.

§ 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 § 49.09, an
offense under this section is a Class B misdemeanor, with a minimum
term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this
section 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, § 1.01, eff. Sept. 1,
1994. Amended by Acts 1995, 74th Leg., ch. 76, § 14.55, eff.
Sept. 1, 1995.

§ 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, § 1, eff. Sept. 1, 2003.

§ 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, § 1.01, eff. Sept. 1,
1994.

§ 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, § 1.01, eff. Sept. 1,
1994.

§ 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.
(c) If it is shown on the trial of an offense under this
section 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, § 9, eff. Jan. 1, 2000.

§ 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.
(c) An offense under this section is a felony of the third
degree.

Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994. Amended by Acts 1999, 76th Leg., ch. 1364, § 10, eff. Jan.
1, 2000.

§ 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) An offense under this section is a felony of the second
degree.

Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994. Amended by Acts 1999, 76th Leg., ch. 1364, § 11, eff. Jan.
1, 2000.

§ 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.

Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994. Amended by Acts 1995, 74th Leg., ch. 76, § 14.56, eff.
Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, § 21, eff. Sept. 1,
1995; Acts 1999, 76th Leg., ch. 1364, § 12, 13, eff. Jan. 1,
2000; Acts 2001, 77th Leg., ch. 648, § 1, 2, eff, Sept. 1, 2001;
Acts 2001, 77th Leg., ch. 969, § 3, eff. Sept. 1, 2001; Acts
2003, 78th Leg., ch. 787, § 2, eff. Sept. 1, 2003; Acts 2003,
78th Leg., ch. 1275, § 2(117), eff. Sept. 1, 2003.

§ 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, § 1.01, eff. Sept. 1,
1994. Amended by Acts 1999, 76th Leg., ch. 1364, § 14, eff. Jan.
1, 2000; Acts 2003, 78th Leg., ch. 787, § 3, eff. Sept. 1, 2003.

§ 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, § 22, eff. Sept. 1, 1995.
Amended by Acts 2001, 77th Leg., ch. 969, § 4, eff. Sept. 1,
2001.

§ 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, § 2.05, eff. Sept. 1,
2003.

 

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