Texas DWI Laws Explained: Penalties, Open Container, BAC 0.15+, “Public Place,” and “Operating”

Texas DWI Laws Explained: Penalties, Open Container, BAC 0.15+, “Public Place,” and “Operating”

A Texas DWI case usually turns on a few statutory elements: intoxication, operating, a motor vehicle, and a public place. All of those elements come from Texas Penal Code § 49.04, but many DWI cases are won or lost on how those terms are applied to the facts.

This post explains how Texas DWI law works, what circumstances increase penalties, and where defenses commonly arise.

What Is DWI Under Texas Law?

Under Texas Penal Code § 49.04(a), a person commits Driving While Intoxicated if the person is intoxicated while operating a motor vehicle in a public place.

Each phrase matters. The State must prove all of them beyond a reasonable doubt. More detail on how DWI cases are defended can be found on the firm’s main practice page:
👉 Texas DWI / DUI Defense: https://www.johnhickmanlaw.com/dwi-dui-defense-texas

Base-Level DWI Penalties in Texas

Absent any enhancements, a DWI under § 49.04 is a Class B misdemeanor.
Texas law imposes a minimum jail term of 72 hours for a Class B DWI conviction. (§ 49.04(b))

That minimum is important: even first-offense DWI cases start with mandatory confinement unless the case qualifies for a statutory exception or reduction.

DWI With an Open Container: Mandatory 6 Days

Texas law treats DWI with an open container more harshly.

If the State proves that the driver had an open container of alcohol in the person’s immediate possession, the offense remains a Class B misdemeanor, but the minimum jail term increases to six days. (§ 49.04(c))

This enhancement often affects plea negotiations and probation conditions, especially where jail time is otherwise avoidable.

Because many DWI cases later involve supervision issues, violations, or modification requests, open-container cases frequently intersect with probation law. For related issues, see:
👉 Texas Probation Violations & Motions to Revoke (MTR): https://www.johnhickmanlaw.com/probation-violations-mtr-texas

DWI With BAC 0.15 or Higher (Class A Misdemeanor)

A DWI becomes more serious if chemical testing shows a blood alcohol concentration of 0.15 or higher.

Under § 49.04(d), a BAC of 0.15 or more elevates the charge to a Class A misdemeanor, increasing potential jail exposure, fines, and collateral consequences.

This enhancement applies even on a first DWI offense.

DWI in a School Crossing Zone: Felony Exposure

Texas Penal Code § 49.04(e) elevates a DWI to a state jail felony if the offense occurs in a school crossing zone during the time the reduced speed limit is in effect.

These cases often hinge on:

  • Exact location evidence

  • Time-of-day and signage

  • Whether the reduced speed limit legally applied at that moment

What Counts as a “Public Place” for DWI?

DWI only applies if the vehicle is operated in a public place. Texas defines a public place broadly, but courts have repeatedly emphasized actual public access, not labels.

Texas courts have held that certain locations may not qualify as public places depending on the facts, including:

  • Private residential property

  • Gated or restricted-access areas

  • Locations where the public does not realistically have access at the time in question

Whether a location is a public place is often a fact-intensive issue that can be challenged with photographs, maps, access restrictions, and testimony.

What Does “Operating” a Motor Vehicle Mean?

Texas law uses the term “operating,” not “driving.” Courts apply a totality-of-the-circumstances analysis to determine whether someone operated a vehicle.

Situations where “operation” is commonly disputed include:

  • Person found asleep in a parked car

  • Vehicle stationary with no clear evidence of movement

  • Uncertainty about whether the defendant took action to make the vehicle function

If the State cannot prove operation, a DWI charge may fail even if intoxication evidence exists.

Quick Overview of Texas DWI Penalties

  • Standard DWI: Class B misdemeanor, 72-hour minimum jail

  • DWI with open container: Class B misdemeanor, 6-day minimum jail

  • DWI with BAC ≥ 0.15: Class A misdemeanor

  • DWI in school crossing zone: State jail felony

  • Repeat DWI / intoxication assault / intoxication manslaughter: Enhanced or felony offenses under other statutes

DWI Defense in Lamar County and Northeast Texas

Local practice matters. Charging decisions, jail credit practices, and probation conditions can vary by county.

If your case arises in Lamar County, see:
👉 Lamar County Criminal Defense: https://www.johnhickmanlaw.com/lamar-county-criminal-defense

Final Takeaway

Texas DWI law is statute-driven, but outcomes are fact-driven. Enhancements like open containers, BAC levels, location, and prior history can dramatically change exposure. At the same time, core elements like public place and operation remain fertile ground for defense litigation.

Early analysis of the facts — before assumptions harden — often makes the difference.