Is Drunk Driving a Felony or Misdemeanor in Texas?

In Texas, drunk driving is a felony when it’s your third or later DWI, when a passenger under 15 is in the vehicle, when it happens in an active school crossing zone, or when it causes serious bodily injury or death. A first or second DWI without those factors stays a misdemeanor. Texas law treats you as intoxicated if your blood alcohol concentration is 0.08 or higher, or if you’ve lost the normal use of your mental or physical faculties because of alcohol or drugs.¹

The Misdemeanor Baseline

A standard first DWI is a Class B misdemeanor, with a mandatory minimum of 72 hours in jail, a maximum of 180 days, and fines up to $2,000.²³ Two wrinkles can make a first offense worse without making it a felony. A BAC of 0.15 or higher at the time of testing bumps the charge to a Class A misdemeanor, which carries up to a year in county jail and fines up to $4,000.⁴ An open container within reach keeps the charge at Class B but raises the mandatory minimum from 72 hours to six days.

A second DWI is a Class A misdemeanor with a 30-day mandatory minimum in county jail and a maximum of one year, plus fines up to $4,000.⁵⁴ It’s still a misdemeanor, but the 30-day floor is where many people lose a job.

Third DWI Becomes a Felony

The clearest line into felony territory is the third offense. Under Section 49.09, any DWI becomes a third-degree felony once you have two or more prior convictions for an intoxication-related offense.⁵ A third-degree felony carries two to ten years in the Texas Department of Criminal Justice and a fine up to $10,000.⁶ This is prison, not county jail.

Texas has no washout period. A DWI from twenty years ago counts the same as one from last year when prosecutors count your priors. Out-of-state convictions count too if the elements of that offense are substantially similar to Texas DWI. One prior intoxication manslaughter conviction, on its own, is enough to elevate any new DWI straight to a third-degree felony without waiting for a third offense.⁵

DWI With a Child Passenger

Driving while intoxicated with any passenger younger than 15 in the vehicle is a state jail felony, even if it’s your first DWI.⁷ The state doesn’t have to prove the child was endangered or that your driving was erratic. The child being in the car is enough.

A state jail felony carries 180 days to two years in a state jail facility and a fine up to $10,000.⁸ State jail isn’t prison and the sentences are shorter, but the felony stays on your record for life.

DWI in a School Crossing Zone

Driving while intoxicated in an active school crossing zone, during the hours the reduced speed limit applies, is also a state jail felony on a first offense.² The punishment range matches DWI with a child passenger: 180 days to two years in state jail and a fine up to $10,000.⁸

When Someone Gets Hurt: Intoxication Assault

Causing serious bodily injury to another person while driving intoxicated is intoxication assault, a third-degree felony. The sentence is two to ten years in prison and a fine up to $10,000.⁹⁶

“Serious bodily injury” under the statute means injury that creates a substantial risk of death, causes serious permanent disfigurement, or results in long-term loss or impairment of a body part or organ.⁹ A broken bone that heals cleanly may not clear that bar; a traumatic brain injury almost always does. If the victim suffers a brain injury that leaves them in a persistent vegetative state, the charge rises to a second-degree felony, carrying two to twenty years.⁵

When Someone Dies: Intoxication Manslaughter

If an intoxicated driver causes someone’s death, the charge is intoxication manslaughter, a second-degree felony. A conviction means two to twenty years in prison and a fine up to $10,000.¹⁰¹¹ The prosecution never has to prove intent to kill. Showing that you were intoxicated and that your intoxication caused the death is enough.

Each death from a single crash can be charged separately, and a judge can order the sentences to run consecutively rather than concurrently. A two-car collision that kills a couple can produce two manslaughter charges with back-to-back sentences totaling up to 40 years.

Steeper Penalties When the Victim Is a First Responder

Section 49.09 pushes intoxication assault and intoxication manslaughter higher when the victim was a first responder or public official acting in an official capacity:

Intoxication assault on a firefighter or EMS worker rises from a third-degree to a second-degree felony, carrying 2 to 20 years.
Intoxication assault on a peace officer or judge rises to a first-degree felony, carrying 5 to 99 years or life.
Intoxication manslaughter of a first responder, peace officer, or judge rises to a first-degree felony.⁵

First-degree felony is the most serious classification in Texas outside capital murder. For the same crash, the victim’s profession can be the difference between a sentence in single-digit years and one in the decades.

What a Texas DWI Felony Carries Beyond the Sentence

A felony DWI conviction follows you after release. It can disqualify you from certain jobs, professional licenses, and housing applications, and under federal law it permanently strips your right to possess a firearm. On top of the fine, you can expect to pay for a mandatory alcohol education program, ignition interlock installation and monthly monitoring, license reinstatement, and higher insurance premiums for years. Private defense counsel for a felony DWI routinely runs north of $10,000, while misdemeanor representation typically falls between $1,500 and $7,500. The classification question matters, but so does everything that attaches to the felony label once it’s on your record.

1
State of Texas. Texas Penal Code 49.01 – Definitions
2
State of Texas. Texas Penal Code 49.04 – Driving While Intoxicated
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Texas Public Law. Texas Penal Code 12.22 – Class B Misdemeanor
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State of Texas. Texas Penal Code 12.21 – Class A Misdemeanor
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State of Texas. Texas Penal Code 49.09 – Enhanced Offenses and Penalties
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State of Texas. Texas Penal Code 12.34 – Third Degree Felony Punishment
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State of Texas. Texas Penal Code 49.045 – Driving While Intoxicated With Child Passenger
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State of Texas. Texas Penal Code 12.35 – State Jail Felony Punishment
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State of Texas. Texas Penal Code 49.07 – Intoxication Assault
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State of Texas. Texas Penal Code 49.08 – Intoxication Manslaughter
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State of Texas. Texas Penal Code 12.33 – Second Degree Felony Punishment