Texas Public Intoxication Law – Penal Code 49.02

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 What Are Texas Public Intoxication Laws?

Under Texas public intoxication laws, an individual may be charged if they appear in public while they are intoxicated. The individual’s level of intoxication must be such that the individual endangers themselves or those around them.

In Texas, public intoxication is classified as a Class C misdemeanor, punishable by criminal fines of up to $500. In order to convict a defendant, the prosecution must show, beyond a reasonable doubt, that the defendant was intoxicated enough that they could be a danger to themselves or to others.

Under Texas Penal Code Section 49.02, intoxication is defined as an individual not having normal use of their mental or physical abilities because of an intoxicant. Examples of intoxicating substances may include, but are not limited to:

  • Alcohol;
  • Controlled substances;
  • A drug;
  • Any combination of these;
  • A blood alcohol concentration (BAC) of 0.08 or higher.

A public place is any place where members of the public can access. Examples of public places under Texas law include, but are not limited to:

  • Public streets;
  • Highways;
  • Parking lots;
  • Bars;
  • Gated apartment complexes.

It must be shown that, while the individual was intoxicated in public, they were a danger to themselves or to others. In the State of Texas, intoxication occurs when an individual:

  • Has ingested alcohol, a controlled substance, a drug, a dangerous drug, or some combination of these substances to the extent that the individual does not have the normal use of their mental or physical faculties; and
  • Has a blood alcohol concentration (BAC) of 0.08 or more.

There are a number of factors that will be considered when determining whether an individual is a danger to themselves or others, including, but not limited to being intoxicated to the point of:

  • Being unreasonably vulnerable to robbery or assault;
  • Attempting to drive home when they cannot safely do so;
  • Falling over drunk;
  • Starting a fight;
  • Being out of control.

If an individual causes the death of another while intoxicated, they may face intoxication manslaughter charges. Under Texas Penal Code 49.08, an individual commits intoxication manslaughter in Texas when they engage in any of the following while they are intoxicated:

  • Operate an aircraft;
  • Operate a watercraft;
  • Operate or assemble an amusement park ride;
  • Drive a motor vehicle in a public location.

If an individual is facing any criminal charges in Texas, they should consult with a local Texas attorney.

How Is Public Intoxication Classified?

In some jurisdictions, public intoxication is classified as a traffic citation. In other locations, it is classified as a misdemeanor crime.

For example, in the State of Pennsylvania, an individual who is cited for public intoxication may only receive a non-traffic citation. This is considered less serious than a misdemeanor crime.

In other jurisdictions, including Texas, public intoxication is classified as a misdemeanor offense. An individual might be repeatedly arrested and charged with public intoxication. In that case, they are more likely to receive an increasingly severe sentence each time they are convicted of the offense.

The majority of jurisdictions will increase the maximum amount of criminal fines and may extend the length of the individual’s jail sentence. If a defendant is convicted frequently enough, they may have to serve their sentence in a state prison as opposed to a county jail.

Public intoxication is typically not charged as a felony. However, it may be included as charges in a case that results in felony-level penalties if the circumstances of the case warrant that type of punishment.

Examples of conduct that may lead an individual to face felony charges while intoxicated in public include, but are not limited to:

  • Committing aggravated assault or battery while they are also intoxicated in public;
  • Destroying government or federal property during a public intoxication incident;
  • Driving while intoxicated, leading to injuring another individual.

What Are the Penalties for Texas Public Intoxication?

As noted above, in the State of Texas, public intoxication is classified as a Class C misdemeanor, punishable by a fine of no more than $500. An individual may be arrested for being intoxicated in public, which includes being booked into jail and waiting to be released.

In addition, the defendant may receive a criminal conviction. As noted above, repeated offenses may also result in more severe penalties.

Following two public intoxication convictions, a repeat offender may be charged with a Class B misdemeanor. A conviction for a Class B misdemeanor may result in:

  • 180 days in county jail;
  • Criminal fines of up to $2,000;
  • A combination of both.

Does Public Intoxication Go On My Record?

Although the offense of public intoxication is considered to be minor as compared with other criminal offenses, the conviction will be on an individual’s criminal record. This may cause them difficulties in the future with:

  • Housing;
  • Employment;
  • Banking;
  • Other areas of life.

How Do I Fight a Public Intoxication Charge?

It is possible for an individual to be cited for public intoxication even if their physical state was actually caused by medical treatment. This is especially true because many medications do contain alcohol or other types of ingredients that can make an individual appear to be intoxicated.

Because of this, it may be a valid defense that the defendant was under the influence of alcohol or other substances if it was prescribed for therapeutic purposes by a licensed physician. Examples of other public drunkenness defenses that an individual can use may include:

  • The law enforcement officer wrongfully cited the individual in a private and not public area;
  • Law enforcement mistook an individual’s disorderly conduct as drunkenness;
  • A law enforcement officer told the individual to go to a public place and then cited them for public intoxication after they simply followed orders.

As noted above, the prosecution will be required to prove certain elements in order for a Texas defendant to be found guilty of public intoxication. The elements of proof may vary based on the jurisdiction.

In general, however, the standard elements the prosecution will be required to prove to convict a defendant of public intoxication include:

  • The defendant was in a public location at the time that the offense occurred;
  • They did not appear to have control over their actions and consequently posed a threat to others around or near them; and
    • The defendant either was or appeared to be under the influence of alcohol, drugs, or another controlled substance.

It is important to note that not every jurisdiction requires proof of the second element listed above. In these locations, the prosecution only has to show that the defendant appeared to be drunk or disorderly while in a public location.

Do I Need an Attorney for Texas Public Intoxication?

If you are facing public intoxication charges in the State of Texas, it is essential to consult with a Texas criminal lawyer. Your lawyer can advise you of your legal rights and options under Texas public intoxication laws.

If any defenses are available, your lawyer will present them in court on your behalf as well as represent you during any appearances. Your lawyer may also be able to negotiate with the prosecution for a reduction in the charges against you, if possible, which is very important as this offense will appear on your criminal record.


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