Every Felony DWI in Texas Explained

Each year, thousands of Texans face felony DWI charges under Chapter 49 of the Texas Penal Code. While most DWI cases are misdemeanors, certain circumstances elevate these charges to felonies, carrying potential prison sentences and life-changing consequences. Understanding the specific laws, penalties, and defenses for each type of felony DWI is crucial for anyone facing these serious charges.

Overview of Texas DWI Laws

Chapter 49 of the Texas Penal Code governs intoxication offenses. Under § 49.04, a basic DWI occurs when a person operates a motor vehicle in a public place while intoxicated. However, several sections of Chapter 49 elevate DWI to a felony under specific circumstances.

DWI with Child Passenger (Penal Code § 49.045)

Under § 49.045, driving while intoxicated becomes a felony if a child passenger is present. Specifically, this section applies when:

The operator is intoxicated (under § 49.01 definitions)
Operating a motor vehicle in a public place
With a passenger younger than 15 years of age

This offense is a state jail felony, regardless of prior convictions. Key elements prosecutors must prove:

The defendant was operating the vehicle
Intoxication at the time of operation
Presence of child under 15
Knowledge of child’s presence (though this is often presumed)

Punishment range includes:

180 days to 2 years in state jail
Fine up to $10,000
Driver’s license suspension
Mandatory ignition interlock upon release

Felony DWI by Repetition (Penal Code § 49.09)

Section 49.09 contains crucial enhancement provisions that elevate a DWI to a felony based on prior convictions. A DWI becomes a felony when the defendant has:

Two prior convictions for any combination of:
- DWI (§ 49.04)
- DWI with Child Passenger (§ 49.045)
- Flying While Intoxicated (§ 49.05)
- Boating While Intoxicated (§ 49.06)
- Assembling/Operating Amusement Ride While Intoxicated (§ 49.065)
OR one prior conviction for Intoxication Manslaughter (§ 49.08)

Critical aspects of § 49.09:

No time limit on prior convictions (“forever jurisdictional”)
Out-of-state convictions count
Each prior must be properly proven with specific evidence

Intoxication Assault (Penal Code § 49.07)

Section 49.07 defines intoxication assault as causing serious bodily injury to another by reason of intoxicated operation of:

Motor vehicle in a public place
Aircraft
Watercraft
Amusement ride

“Serious bodily injury” under § 49.07(b) means:

Injury creating substantial risk of death
Serious permanent disfigurement
Protracted loss or impairment of function of any bodily member or organ

Base punishment (third-degree felony):

2 to 10 years in prison
Fine up to $10,000
Enhanced to second-degree felony if victim is peace officer, firefighter, or emergency medical personnel

Intoxication Manslaughter (Penal Code § 49.08)

Section 49.08 defines intoxication manslaughter as:

Operating a motor vehicle, aircraft, watercraft, or amusement ride while intoxicated
Causing the death of another by reason of that intoxication
Death can be caused directly or indirectly
Accident or mistake is no defense

Key elements prosecutors must prove:

Intoxication at time of operation
Causation between intoxication and death
Death occurred while operating vehicle in public place

Punishment as second-degree felony:

2 to 20 years in prison
Fine up to $10,000
Separate charge possible for each death

Penalties and Enhancements Under Chapter 49

Offense	Penal Code	Classification	Prison/Jail Time	Fine	Notes
DWI with Child	§ 49.045	State Jail Felony	180 days – 2 years	Up to $10,000	State jail facility
Third DWI	§ 49.09	Third-Degree Felony	2 – 10 years	Up to $10,000	Prison facility
Intoxication Assault	§ 49.07	Third-Degree Felony	2 – 10 years	Up to $10,000	Second-degree if victim is first responder
Intoxication Manslaughter	§ 49.08	Second-Degree Felony	2 – 20 years	Up to $10,000	Separate charge possible per death

Enhancement Provisions

Prior prison trip: Enhances to next degree
Multiple victims: Allows stacking of sentences

Category	Prior Convictions	Classification	Punishment Range	Fine	Notes
Repeat Offender (Third DWI)	Two priors	Third Degree Felony	2 – 10 years	Up to $10,000	No time limit on prior convictions
Repeat Offender with One Enhancement	Two priors + one prison trip	Second Degree Felony	2 – 20 years	Up to $10,000	Prior prison trip for any felony
Habitual Offender	Two priors + two prison trips	First Degree Felony	5 – 99 years or Life	Up to $10,000	Prior prison trips for any felony
Intoxication Assault	N/A	Third Degree Felony	2 – 10 years	Up to $10,000	Enhanced if victim is peace officer
Intoxication Manslaughter	N/A	Second Degree Felony	2 – 20 years	Up to $10,000	Separate charge per death

Important Notes on Repeat/Habitual Offender Status:

Prior Convictions:
- No statute of limitations on prior DWIs
- Out-of-state convictions count
- Must be final convictions unless probation completed
- Can include other intoxication offenses (boating, flying, etc.)
Stacking Provisions:
- Multiple victims can result in consecutive sentences
- Judge has discretion on stacking
- Each death/injury can be separate charge
- No limit on total combined sentence

Parole Eligibility:

Third DWI: Eligible after serving 1/4 of sentence
Intoxication Assault: Eligible after serving 1/4 of sentence
Intoxication Manslaughter: Must serve 1/2 of sentence or 30 years, whichever is less
Habitual Offender: Must serve actual time based on sentence length

Probation Possibilities Under Chapter 49

Mandatory Jail Time as Condition

Offense	Minimum Days in Jail as COP	Maximum Days in Jail as COP
DWI	0	30
DWI BAC ≥ .15	0	30
DWI with Open Container	0	30
DWI Second	72	30
DWI Child Passenger	0	180
DWI Felony Repetition	0	180
Intoxication Assault	30	180
Intoxication Manslaughter	120	180

Complete Guide to Texas DWI Probation Conditions (Article 42A.301)

Texas Code of Criminal Procedure Article 42A.301 establishes the framework for DWI probation conditions, with specific requirements for felony cases. Here’s everything you need to know about probation conditions for Texas DWI offenses.

Jail Time Requirements for DWI Probation

Offense	Minimum Days in Jail as COP	Maximum Days in Jail as COP	Special Requirements
DWI	0	30	—
DWI BAC ≥ .15	0	30	—
DWI with Open Container	0	30	—
DWI Second	72	30	Mandatory minimum applies
DWI Child Passenger	0	180	May be served in increments
DWI Felony Repetition	0	180	Front-loaded service typical
Intoxication Assault	30	180	Must serve minimum 30 days
Intoxication Manslaughter	120	180	Must serve minimum 120 days

Required Evaluations and Programs

1. Substance Abuse Evaluation (SAE)

A Substance Abuse Evaluation (SAE) is a mandatory assessment conducted by a licensed chemical dependency counselor within the first 30 days of DWI probation to evaluate the defendant’s substance use patterns and determine appropriate treatment needs. The recommendations from this evaluation are binding conditions of probation, meaning the defendant must complete any recommended treatment programs, which could range from education classes to intensive outpatient treatment or even residential programs in severe cases.

Mandatory completion within 30 days of probation start
Conducted by licensed chemical dependency counselor
Evaluates:
- Substance use patterns
- Addiction risk factors
- Treatment needs
Recommendations are mandatory – must complete all prescribed treatment:
- Intensive outpatient treatment
- Individual counseling
- Group therapy sessions
- AA/NA meetings
- Residential treatment if required

2. Victim Impact Panel (VIP)

A Victim Impact Panel (VIP) is a court-mandated presentation where DWI crash survivors, victims’ family members, and emergency responders share their personal experiences with drunk driving tragedies to help offenders understand the real-world consequences of their actions. The program typically lasts 2-3 hours and must be completed within the first six months of probation, with proof of attendance required to be submitted to the court.

Required attendance at court-approved program
2-3 hour session featuring:
- DWI crash survivors
- Victims’ family members
- Emergency responders
Must complete within first 6 months
Proof of completion required

3. DWI Education Program

The DWI Repeat Offender Program (DWI ROP) is a 32-hour educational program required for individuals convicted of a subsequent DWI offense in Texas, designed to provide more intensive intervention than the basic DWI Education Program. The program must be completed within 180 days of being placed on probation or before your license can be reinstated, and it focuses on helping repeat offenders identify their drinking and driving patterns, develop alternatives to drinking and driving, and create a plan for preventing future DWI offenses.

State-approved program required by Transportation Code
Must complete within 180 days
Failure results in automatic license suspension

Monitoring Devices and Testing

1. Ignition Interlock Device

Most judges require interlock devices for all felony DWI cases. Requirements typically include:

Installation within 30 days of probation start
Required on all operated vehicles
Monthly calibration checks
Photo verification with each test
Violation reporting to probation officer
Detailed driving log maintenance

2. SCRAM Monitoring

Increasingly required by judges, especially for:

High BAC cases (.15 or above)
Multiple prior offenses
Interlock violations

SCRAM requirements include:

24/7 ankle monitor wear
30-minute testing intervals
Immediate violation reporting
Common requirement periods:
- Initial 30-90 days
- Post-violation periods
- Entire probation in some cases

3. Additional Testing Requirements

Random drug/alcohol testing through:
- Urinalysis
- Blood testing
- Hair follicle analysis
- Breath testing
Typical frequency:
- 2-3 times weekly initially
- May decrease with compliance
- Increases after violations

Community Service Requirements

Mandatory hours based on offense level
Maximum 1,000 hours per Article 42A.301
Must maintain log and supervisor verification

Employment and Reporting Requirements

Must maintain steady employment or school enrollment
Regular probation officer meetings
Cannot leave county without permission
Must report any law enforcement contact

Financial Obligations

Monthly costs typically include:

Requirement	Typical Cost	Frequency
Probation Fees	$60-80	Monthly
Interlock Device	$70-100	Monthly
SCRAM Monitor	$300-450	Monthly
Drug/Alcohol Testing	$15-25	Per test
Treatment Programs	Varies	As required
Education Courses	$70-200	One-time

Court’s Modification Authority

Under Article 42A.301, courts retain authority to:

Modify conditions during probation
Add requirements based on violations
Extend monitoring periods
Revoke probation for violations

Defense Strategies Under Chapter 49

Constitutional Challenges

Illegal stop/detention (Fourth Amendment)
Miranda violations (Fifth Amendment)
Blood draw issues (Fourth Amendment)

Statutory Challenges

Operation not proven
Public place not established
Causation issues (assault/manslaughter)
Prior conviction proof problems

Scientific/Technical Defenses

Blood test reliability
Breath test accuracy
Medical conditions affecting tests
Retrograde extrapolation challenges

Contact an Experienced Texas Felony DWI Lawyer

If you’re facing any felony intoxication offense under Texas Penal Code Chapter 49, you need experienced legal representation immediately. Our defense team thoroughly understands these complex statutes and has a proven track record defending against felony DWI charges.

Call 214-903-4000 for a free consultation with our experienced Texas felony DWI defense team.