Texas Penal Code 49.02 – Public Intoxication

WHAT IS PUBLIC INTOXICATION IN TEXAS?

The Texas law against public intoxication prohibits appearing in a public place while intoxicated to the point of endangering oneself or another.

• What is the legal limit for intoxication in Texas? Texas Penal Code Section Section 49.01 defines “intoxication” in two ways: (1) a blood alcohol concentration (“BAC”) of 0.08 or more; or (2) 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.The subjective definition, or one’s loss of normal use of mental or physical faculties, does not require proof that a person’s blood alcohol concentration was above 0.08.

  For example, in Aguirre v. State, the defendant was arrested for DWI, and his blood test later showed a 0.075 blood alcohol concentration. But the other evidence showed he was going 102 miles per hour, had bloodshot eyes, slurred speech, and a can of beer in the car. The defendant also showed several clues of intoxication during the Standardized Field Sobriety Tests (SFSTs). Based on the evidence, the jury found him guilty, and the appellate court affirmed.

  In public intoxication cases, police may not arrest an intoxicated person unless the person is in public, and a danger to himself or others. Simply being intoxicated in a public place is not enough for a public intoxication arrest.

WHAT IS THE PUBLIC INTOXICATION LAW IN TEXAS?

Tex. Penal Code § 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.

WHAT IS THE PENALTY CLASS FOR PUBLIC INTOXICATION IN TEXAS?

Public intoxication is ordinarily a Class C misdemeanor, punishable by a maximum fine of $500.

• Is a public intoxication charge enhanceable in Texas? Yes. If a person is ticketed at least twice in two years for public intoxication, disorderly conduct, or a combination thereof, and commits either of those offenses a third time within the two-year period, the penalties are increased to a maximum fine of $2,000, and up to 180 days in jail.

WHAT IS THE PUNISHMENT RANGE FOR PUBLIC INTOXICATION IN TEXAS?

The punishment range for public intoxication charged as a Class C misdemeanor is a maximum $500 fine. If enhanced to the Class B misdemeanor punishment range, an accused faces up to 180 days in jail, and a maximum $2,000 fine.

WHAT ARE THE PENALTIES FOR PUBLIC INTOXICATION IN TEXAS?

A person charged with public intoxication as a Class C misdemeanor may be eligible for a period of deferred adjudication not to exceed 180 days. If enhanced to a Class B misdemeanor with two priors within two years, a person may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed two years.

• Is a person probation-eligible for an enhanced public intoxication charge? Yes. If a public intoxication ticket, ordinarily punishable as a Class C misdemeanor, is enhanced by two priors within two years, a person may be placed on probation for no more than two years. A person on probation for a third disorderly conduct or public intoxication conviction will be required, as conditions of probation, to submit to a psychological assessment, and testing for drug or alcohol addiction, and participate in any recommended treatment or education programs.

WHAT ARE THE DEFENSES TO PUBLIC INTOXICATION IN TEXAS?

The statute creates a defense to public intoxication if the accused shows 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.

WHAT IS THE STATUTE OF LIMITATIONS FOR PUBLIC INTOXICATION IN TEXAS?

The limitation period for public intoxication, a Class C misdemeanor, is two years.

PUBLIC INTOXICATION IN TEXAS

Texas law does not criminalize simply being intoxicated in public. Police may only charge a person with public intoxication if the person is a danger to himself or others because of his intoxication. Learn more.

TEXAS PUBLIC INTOXICATION COURT CASES

The case law regarding public intoxication in Texas illustrates the “danger” requirement of the statute.

• In State v. Martinez, police responded to a bar parking lot for a fight. While speaking to the defendant, police noticed his speech was slurred, his eyes were bloodshot, his breath smelled like alcohol, and he was swaying. He was aggressive and uncooperative, and kept pacing and yelling while police were trying to investigate. Police believed he could not safely walk or drive home, especially on the busy road next to the bar. There were cars coming in and out of the parking lot, so he was also in danger of being hit by a car.Police arrested the defendant for public intoxication, and found drugs on him. He was ultimately charged with possession of a controlled substance, and the Texas Court of Criminal Appeals held the police had sufficient probable cause to arrest the defendant for public intoxication. The probable danger to the defendant was enough. Learn more.