Texas DWI Penalties by Offense: What the Statute Says, and What It Does to Your License

A first DWI is a Class B misdemeanor with a 72-hour floor. The second is a Class A. The third is a felony. Each rung has its own statute, and the suspension — not the charge — is what puts a driver under a filing.

A Texas DWI is not one penalty. It is a ladder, and which rung the charge lands on is set by the statute rather than by the arrest — by how many prior convictions are shown at trial, what the analysis said, and who was in the car.

This page sets out what Penal Code chapter 49 provides at each level. It is not legal advice, and it cannot tell you what will happen in your case: a plea, a program, community supervision or a dismissal all sit inside the same statutory range. A defense lawyer answers that question. What follows is the range they are working inside, and the part that reaches a policy.

The first offense

Driving while intoxicated is defined at § 49.04(a) — intoxicated while operating a motor vehicle in a public place. Intoxication has two routes in chapter 49: not having the normal use of mental or physical faculties by reason of alcohol or another substance, or an alcohol concentration of 0.08 or more. Either one is enough, which is why a driver who tested below 0.08 can still be charged.

A first offense is a Class B misdemeanor with a minimum term of confinement of 72 hours (§ 49.04(b)). Under § 12.22, a Class B carries up to 180 days in county jail and a fine of up to $2,000.

Two provisions in the same section move it:

• An open container. If it is shown that an open container of alcohol was in the person’s immediate possession, the minimum term of confinement becomes six days (§ 49.04(c)). The offense class does not change; the floor does.
• 0.15 or more. If an analysis of a specimen shows an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor (§ 49.04(d)) — up to one year and a fine of up to $4,000 under § 12.21.

That second one is the provision most often missed. A first offense can be a Class A on the first arrest, with no prior conviction anywhere in the file.

The second offense

Section 49.09(a) is the enhancement. An offense under § 49.04 is a Class A misdemeanor with a minimum term of confinement of 30 days if it is shown at trial that the person has previously been convicted one time of an offense relating to operating a motor vehicle while intoxicated — or operating an aircraft, a watercraft, or an amusement ride while intoxicated.

Two things about that sentence matter more than the class:

• There is no lookback window in it. A prior conviction relating to operating a motor vehicle while intoxicated counts whenever it happened. The five and ten-year windows people repeat belong to other provisions, not to this one.
• The prior does not have to be a car. The statute names aircraft, watercraft and amusement rides in the same breath.

A second offense is not automatically a felony. It becomes one where § 49.09(b) applies — and § 49.09(b) is not the only way an intoxication offense reaches felony class. Section 49.045 does it with a child in the vehicle and no prior conviction at all, and §§ 49.07 and 49.08 do it when someone is hurt or killed. What is true is that repeat DWIs alone reach a felony through § 49.09(b) and nowhere else.

The third offense, and the felony line

Section 49.09(b) makes the offense a felony of the third degree in defined circumstances. The one most people mean by “third DWI” is § 49.09(b)(2): where it is shown that the person has previously been convicted two times of any other offense relating to operating a motor vehicle while intoxicated, or operating an aircraft, a watercraft, or an amusement ride while intoxicated.

The other route into subsection (b) is a single prior conviction under § 49.08 — intoxication manslaughter — or a substantially similar offense from another state. That one turns a second offense into a third-degree felony.

Under § 12.34, a third-degree felony carries two to ten years in prison and a fine of up to $10,000.

A child in the car

Section 49.045 is its own offense, not an enhancement. A person commits it if they are intoxicated while operating a motor vehicle in a public place and the vehicle is occupied by a passenger younger than 15 years of age. It is a state jail felony — 180 days to two years in a state jail facility and a fine of up to $10,000 under § 12.35.

What makes this section worth knowing is that it reaches felony class without counting priors. A first arrest, no record at all, and the charge is a felony because of who was in the passenger seat. Sections 49.07 and 49.08 — intoxication assault and intoxication manslaughter — do the same thing and carry more, but they require somebody to have been hurt. Section 49.045 does not.

The fine that is not in the Penal Code

Separate from the criminal fine, Transportation Code § 709.001 adds a fine on conviction of an offense relating to operating a motor vehicle while intoxicated:

• $3,000 for a first conviction within a 36-month period;
• $4,500 for a second or subsequent conviction within a 36-month period;
• $6,000 for a first or subsequent conviction where the analysis showed an alcohol concentration of 0.15 or more.

Subsection (c) is the part nobody quotes: if the court finds the person is indigent, it shall waive all fines and costs imposed under this section. That is a finding a court makes, not a box anyone ticks, but it exists.

This is the provision that replaced the old Driver Responsibility Program. House Bill 2048 repealed the program in 2019 and its surcharges were waived. A great deal of advice still online describes annual surcharges billed for three years after a DWI conviction; that program does not exist, and the § 709.001 fine is a single amount at conviction rather than a yearly bill. If a page you are reading still describes the surcharge, it is describing 2018.

What happens to the license

The criminal case and the license are two files.

On conviction under § 49.04, § 49.045 or § 49.07, Transportation Code § 521.344(a) suspends the license for not less than 90 days and not more than one year, beginning on a date the court sets no earlier than the conviction and no later than the 30th day after it.

Separately, the arrest itself can start an administrative case under the implied-consent rules, on its own timeline and with its own deadline to request a hearing. The two run independently, which is why a driver can be facing a suspension before the criminal case is anywhere near resolved.

Where the filing arrives

An SR-22 is not a penalty in chapter 49, and no court sentences anyone to one. It is a certificate an insurer files with DPS proving the driver carries the liability coverage Texas requires — and what triggers it is the suspension, not the charge.

That is the whole reason this page ends here rather than in the courtroom: the moment a driver is under a suspension that requires proof of financial responsibility, the question stops being legal and starts being an insurance question. How the filing fits alongside reinstatement, the fee and any interlock order is set out in SR-22 after a DWI in Texas. If the license is suspended and there is a court petition for limited driving, the occupational driver license route is the one to read.

Two definitions worth keeping straight while reading anything else on this subject: DWI is the chapter 49 offense described above, and DUI in Texas is a separate minor’s offense under the Alcoholic Beverage Code. They are not two words for the same charge here, whatever they mean in other states.

What this page is not

It is not legal advice, and Moon Insurance is not a law firm. Every figure above is the statutory range with its section cited beside it, current as of the verification date at the foot of this page. What a particular case produces — the plea, the program, the supervision terms, the interlock order — is a question for a defense lawyer, and we would rather say that plainly than guess on your behalf.

What we can do is the insurance half: write the policy and transmit the certificate.

Common questions

What can a first DWI offense in Texas result in?

Penal Code § 49.04(b) makes it a Class B misdemeanor with a minimum term of confinement of 72 hours. Under § 12.22 a Class B carries up to 180 days in county jail and a fine of up to $2,000. Two provisions move it: an open container in the person's possession raises the confinement minimum to six days under § 49.04(c), and an analysis showing an alcohol concentration of 0.15 or more makes the offense a Class A misdemeanor under § 49.04(d).

Is a second DWI a felony in Texas?

Not by itself. Penal Code § 49.09(a) makes a second offense a Class A misdemeanor with a minimum term of confinement of 30 days. It reaches third-degree felony class under § 49.09(b) where that subsection's conditions are met — including a prior intoxication manslaughter conviction. Other provisions reach felony class by their own route rather than by counting priors: § 49.045 where a passenger under 15 is in the vehicle, and §§ 49.07 and 49.08 where someone is injured or killed.

What happens on a third DWI in Texas?

Penal Code § 49.09(b)(2) makes the offense a felony of the third degree where it is shown the person has previously been convicted two times of another offense relating to operating a motor vehicle while intoxicated. Under § 12.34 that carries two to ten years and a fine of up to $10,000.

Does Texas still charge the annual DWI surcharge?

No. House Bill 2048 repealed the Driver Responsibility Program in 2019 and waived the surcharges. What exists now is a one-time fine under Transportation Code § 709.001 on conviction. Any advice that still describes yearly surcharges is describing a program that no longer exists.

How long is the license suspension?

For a conviction under Penal Code § 49.04, § 49.045 or § 49.07, Transportation Code § 521.344(a) sets a suspension of not less than 90 days and not more than one year, beginning on a date the court sets no later than the 30th day after the conviction. The administrative suspension after the arrest is a separate case with its own timeline.

Where does the SR-22 come into it?

The suspension does it, not the charge. Once a driver is under a suspension that requires proof of financial responsibility, the SR-22 is the certificate an insurer files with DPS. Moon can write the policy and transmit the certificate statewide.

Sources: Tex. Penal Code ch. 49 — intoxication offenses, including §§ 49.04, 49.045 and 49.09; Tex. Penal Code ch. 12 — punishment ranges, §§ 12.21, 12.22, 12.34 and 12.35; Tex. Transp. Code ch. 709 — miscellaneous traffic fines, § 709.001; Tex. Transp. Code ch. 521, subch. O — automatic suspension, § 521.344; Texas DPS — SR-22 proof of financial responsibility FAQ (section 9). Verified 8 September 2026.

General information about Texas filing rules, not legal advice and not a quote. Requirements change; confirm your own through the Texas DPS License Eligibility system before acting. Published 8 September 2026.