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DWI 3rd — 3rd-degree felony

Tex. Penal Code § 49.09(b) enhances a third or subsequent DWI to a 3rd-degree felony. The range:

  • Prison: 2 to 10 years (Texas Department of Criminal Justice — Institutional Division)
  • Fine: up to $10,000
  • Probation: available but discretionary; no longer the presumptive outcome
  • Mandatory ignition interlock post-release

A third DWI is felony "regardless of how long ago" the first two convictions occurred. This is the critical distinction from many other states: Texas DWI priors never wash out. A DWI conviction from 1995 can still be used to enhance a 2026 case to felony status.

What counts as a prior

Under § 49.09, a "prior" includes:

  • Any prior Texas DWI conviction (including BWI for boating while intoxicated, FWI for flying, and similar Chapter 49 offenses)
  • Out-of-state DWI/DUI convictions if "substantially similar" to Texas's statute
  • Federal-court DWI convictions on federal land in Texas (military bases, national parks)
  • Prior intoxication assault or manslaughter convictions (each counts)

The prosecution must plead and prove each prior conviction. A defense challenge often focuses on whether out-of-state priors are truly "substantially similar" — some state DUI statutes punish conduct that Texas doesn't, in which case the prior may not qualify for enhancement.

DWI 2nd — Class A misdemeanor (not felony, but worth noting)

A second DWI conviction is enhanced to Class A misdemeanor under Tex. Penal Code § 49.09(a) — up to 1 year jail, fine up to $4,000. Not a felony, but significantly more serious than a first offense. Mandatory ignition interlock and longer license suspension apply.

DWI with child passenger — state-jail felony regardless of priors

Tex. Penal Code § 49.045 makes DWI with a passenger under 15 years of age a state-jail felony — automatically, regardless of priors. State-jail felony range:

  • State jail: 180 days to 2 years (different from prison; no parole eligibility before completion of 100% of the sentence in many circumstances)
  • Fine: up to $10,000

This is one of the most aggressively prosecuted DWI variants in Texas. The defendant doesn't have to be intoxicated AND endangering the child — the mere presence of a passenger under 15 elevates a first DWI to felony status. Custody disputes, school-pickup arrests, and grandparent transport scenarios commonly produce these charges.

Intoxication assault — 3rd-degree felony

Tex. Penal Code § 49.07 makes it a 3rd-degree felony when a DWI incident results in serious bodily injury to another person. The range:

  • Prison: 2 to 10 years
  • Fine: up to $10,000
  • Mandatory community service: 160 hours minimum (Tex. Code Crim. Proc. art. 42A.302)

When the victim is a peace officer, firefighter, or emergency medical services personnel acting in the line of duty, the offense is enhanced to a 2nd-degree felony — 2 to 20 years prison.

Intoxication manslaughter — 2nd-degree felony

Tex. Penal Code § 49.08 makes it a 2nd-degree felony when a DWI incident results in death. The range:

  • Prison: 2 to 20 years
  • Fine: up to $10,000
  • Mandatory community service: 240 hours minimum (Tex. Code Crim. Proc. art. 42A.302)

Multiple victims = multiple counts; sentences can be stacked under Tex. Code Crim. Proc. art. 42A.057 in many cases. When the victim is a peace officer, firefighter, EMS personnel, or judge acting in the line of duty, the offense becomes a 1st-degree felony — 5 to 99 years or life.

Intoxication assault and manslaughter are NOT eligible for deferred adjudication and are not eligible for nondisclosure. The convictions remain on the record permanently.

3g offense designation

Tex. Code Crim. Proc. art. 42A.054 lists "3g" offenses (named for their original code location) that carry parole restrictions. Intoxication manslaughter is on the 3g list; defendants must serve a minimum of one-half of their sentence (or 30 years, whichever is less) before parole eligibility. Intoxication assault is NOT on the 3g list, allowing standard parole calculation.

Defense considerations

  • Challenging prior convictions: were they actual convictions or deferred dispositions? Were the defendant's rights properly preserved? Are out-of-state priors substantially similar to Texas's statute?
  • Causation in assault/manslaughter cases: the prosecution must prove the intoxication caused the serious injury or death, not just that intoxication and the injury coincided. Mechanical failure, victim contributory negligence, and intervening causes can break the causal chain.
  • BAC retrograde extrapolation challenges: the more time between driving and the test, the harder it is to prove BAC at the time of driving exceeded the limit.
  • Child-passenger DWI specifically: was the defendant the driver? Was the child actually a passenger or simply at the scene?

Bottom line

Texas felony DWI carries career-altering consequences — prison, six-figure financial impact across the case lifecycle, and decades of collateral effects. The state's "priors never wash out" rule means decades-old convictions enhance current charges. Child-passenger DWI is automatically felony regardless of priors. Intoxication manslaughter can produce 99-year sentences when officers are killed. Consult a Texas-licensed criminal defense attorney with felony DWI experience immediately if any of these apply.

Related guides

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