Texas Penal Code chapter 49: DWI, intoxication assault and intoxication manslaughter

The short answer

Texas Penal Code §49.04(a) says "A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place" (Penal Code §49.04). "Intoxicated" means not having the normal use of mental or physical faculties because of alcohol, a drug or another substance, or "having an alcohol concentration of 0.08 or more" (§49.01(2)). If an intoxicated driver, by reason of that intoxication, causes serious bodily injury to another, the offense is intoxication assault, a felony of the third degree (§49.07); if the driver causes the death of another, it is intoxication manslaughter, a felony of the second degree (§49.08), except as §49.09 provides.

This entry provides general informational guidance and is not legal advice. It does not give advice about any criminal charge.

Key facts (as of October 29, 2026)

• Two meanings of intoxicated. Loss of the normal use of mental or physical faculties from a substance, or an alcohol concentration of 0.08 or more (§49.01(2)).
• DWI. Intoxicated while operating a motor vehicle in a public place; a Class B misdemeanor at its base level, with higher levels the section and §49.09 set (§49.04, §49.09).
• A child passenger. DWI with a passenger younger than 15 is a state jail felony (§49.045).
• Serious bodily injury or death. Intoxication assault is a third-degree felony and intoxication manslaughter a second-degree felony, except as §49.09 provides (§§49.07, 49.08).
• Blood specimens after a serious crash. In the circumstances §724.012(a-1) lists, an officer shall require a blood specimen, with a warrant or probable cause of exigent circumstances (Transp. Code §724.012).
• On the crash report. Codes 45, 67 and 68 in list 38 record drinking and intoxication (CR-3CS).
• Amended in 2025. The history line for §49.04 lists Acts 2025, 89th Leg., R.S., ch. 991 (S.B. 826), effective September 1, 2025, as its most recent amendment.

What do the sections say?

The official text, as published by the Texas Legislature. First, the definition in §49.01:

Sec. 49.01. DEFINITIONS. In this chapter:

[…]

(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.

Section 49.04, driving while intoxicated:

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 Subsections (c), (d), and (e) 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 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.

(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.

(e) If it is shown on the trial of an offense under this section that at the time of the offense the person was operating the motor vehicle in a school crossing zone during the time the reduced speed limit applies to the zone, the offense is a state jail felony. In this subsection, "school crossing zone" has the meaning assigned by Section 541.302, Transportation Code.

Section 49.07, intoxication assault:

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.

(c) Except as provided by Section 49.09, an offense under this section is a felony of the third degree.

Section 49.08, intoxication manslaughter:

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.

Source: Tex. Penal Code ch. 49, statutes.capitol.texas.gov. Text last checked October 29, 2026.

What does it mean in plain language?

• Two ways to be intoxicated. Under §49.01(2), a driver can be intoxicated by losing the normal use of mental or physical faculties from alcohol, drugs or another substance, whatever the number, or by having an alcohol concentration of 0.08 or more. Section 49.01(1) measures alcohol concentration in grams of alcohol per 210 liters of breath, 100 milliliters of blood or 67 milliliters of urine.
• "Operating" in "a public place." Section 49.04(a) is not limited to highways; it applies to operating a motor vehicle in a public place.
• Levels of the DWI offense. The base offense is a Class B misdemeanor with a minimum term of confinement of 72 hours. An open container in the driver's immediate possession raises the minimum to six days; a specimen showing 0.15 or more makes it a Class A misdemeanor; and, under subsection (e), added effective September 1, 2025, driving in a school crossing zone while its reduced speed limit applies makes it a state jail felony (§49.04).
• A child in the vehicle. Driving while intoxicated with a passenger younger than 15 years of age is its own offense, a state jail felony (§49.045).
• Accident or mistake. Sections 49.07 and 49.08 do not require that the driver meant to hurt anyone. They require that the driver was intoxicated and that the injury or death was caused "by reason of that intoxication".
• Serious bodily injury. Section 49.07(b) gives its own definition, quoted above. The general Penal Code definition is close to it: "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ" (§1.07(a)(46)).
• Enhancements. Section 49.09 raises the levels for prior convictions, and raises intoxication assault and intoxication manslaughter when the person injured or killed was a firefighter, emergency medical services personnel, a peace officer or a judge in the actual discharge of an official duty. Under §49.09(b-4), intoxication assault is a felony of the second degree if the serious bodily injury is "in the nature of a traumatic brain injury that results in a persistent vegetative state". The 2025 Legislature enacted two versions of §49.09(b-2), which the official text prints one after the other: both make intoxication manslaughter a felony of the first degree when a described official was killed; one version adds the death of more than one person during the same criminal transaction, and the other adds a person with a prior intoxication conviction who, at the time of the offense, "was in violation of Chapter 51" (§49.09).

What happens to blood and breath specimens after a crash?

• Implied consent. A person arrested for an offense arising out of operating a motor vehicle in a public place while intoxicated is "deemed to have consented", subject to chapter 724, to submit to the taking of one or more specimens of the person's breath or blood for analysis (Transp. Code §724.011(a)).
• Mandatory blood specimen after a serious crash. Under §724.012(a-1), a peace officer "shall require the taking of a specimen of the person's blood" if the officer arrests the person for a chapter 49 offense involving a motor vehicle, the person refuses to submit voluntarily, the person was the operator of a vehicle involved in a collision that the officer reasonably believes occurred as a result of the offense, and, at the time of the arrest, the officer reasonably believes that as a direct result of the collision "any individual has died, will die, or has suffered serious bodily injury".
• Other listed circumstances. Section 724.012(b) requires a breath or blood specimen in other listed cases, including a collision in which the officer reasonably believes another person "has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment".
• A warrant or exigent circumstances. "A peace officer may not require the taking of a specimen under this section unless the officer: (1) obtains a warrant directing that the specimen be taken; or (2) has probable cause to believe that exigent circumstances exist" (§724.012(e)).

How does a crash report record alcohol and drugs?

• Contributing-factor codes. In list 38 of the code sheet, code 45 is "Had Been Drinking", code 67 is "Intoxicated - Alcohol" and code 68 is "Intoxicated - Drug" (CR-3CS, 4/1/2023). The same sheet lists field 24, Alcohol Specimen Type (breath, blood, urine, refused or none), and field 25, Drug Specimen Type.
• How TxDOT defines them. TxDOT's CR-100 instructions describe code 45 as "When, in the investigator's opinion, the driver of a vehicle, pedestrian or pedalcyclist in the crash had been drinking an alcoholic beverage, but not to the extent to be considered intoxicated", and code 67 as "When the intoxicated condition of the driver, pedestrian, or pedalcyclist, due to consuming alcoholic beverages, is a factor that contributes to the crash" (CR-100). The instructions add that both factors 45 and 67 should not be indicated for one driver.
• Test results may come later. For the alcohol result field, the CR-100 says: "If no specimen was taken or the analysis result is not ready at the time the crash report is submitted, leave this field blank. When the result is available, submit a supplemental report showing the result."
• An opinion, not a conviction. The contributing factors on a CR-3 are the investigating officer's opinion. A criminal case is decided separately, in court.
• Reading the codes. The guide to reading a Texas crash report explains the other fields and code lists.

How does chapter 49 relate to other Texas law?

• Civil claims are separate. Chapter 49 defines crimes. It does not decide who is responsible for a crash, whether anyone has a civil claim, or the outcome of one. Texas's rules on dividing responsibility in a civil case are in chapter 33 of the Civil Practice and Remedies Code, which the §33.001 entry quotes.
• Businesses that serve alcohol. Texas's dram shop statute, which sets when a provider of alcoholic beverages can be liable, is quoted in the §2.02 entry.
• Exemplary damages. Civil Practice and Remedies Code §41.008 limits the amount of exemplary damages, except for causes of action based on the felonies it lists, which include intoxication assault and intoxication manslaughter; the §41.003 entry describes the standard.
• Crime Victims' Compensation. The program's definition of criminally injurious conduct lists §§49.04, 49.07 and 49.08 among the Penal Code sections that can bring a crash within it; the chapter 56B entry quotes it.

What applies in Houston and Harris County?

Chapter 49 is state law and applies in Houston and Harris County as it does everywhere in Texas; no separate City of Houston or Harris County intoxication offense was found. A crash investigated by the Houston Police Department, the Harris County Sheriff's Office or another agency is reported on the same Texas Peace Officer's Crash Report, CR-3, with the same code sheet (CR-3CS). The Houston crash report guide lists how each local agency says to request a copy.

When was this checked, and can it change?

The text above was last checked on October 29, 2026, against the official text published by the Texas Legislature, and the TxDOT code sheet and instructions were read the same day. The Legislature can amend a statute in any session; it amended §49.04 and §49.09 in 2025. It convenes in regular session on the second Tuesday in January of each odd-numbered year (Gov't Code §301.001), so the next regular session begins on January 12, 2027. This entry is scheduled to be rechecked against the official text by April 2027 and again after the 2027 regular session ends.

Related guides

• Drunk driver crashes and dram shop claims in Texas
• Dram shop liability: the §2.02 entry
• Exemplary damages: the §41.003 entry
• Crime Victims' Compensation: the chapter 56B entry
• How to read a Texas crash report (CR-3)
• When a family member dies in a Texas crash
• Texas car crash law reference: all entries
• Car accident information for Houston

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