What Texas Penal Code Section 49.045 requires
Under Texas Penal Code Section 49.045, the State must prove that the accused was intoxicated while operating a motor vehicle in a public place and that the vehicle was occupied by a passenger younger than 15 years of age. The offense is classified as a state jail felony.
The passenger allegation does not eliminate the State’s burden to prove intoxication, operation, and public place. It adds an age-and-occupancy element that must also be supported by admissible evidence.
What makes the charge different from an ordinary DWI
A basic first-offense DWI is generally a misdemeanor. Section 49.045 is a distinct state-jail-felony offense based on the presence of a passenger under 15. Criminal history and other alleged facts may create additional enhancement questions, so the charging instrument and complete record must be reviewed.
The accusation can also generate immediate concerns about bond conditions, family relationships, employment, professional licensing, and possible contact with child-welfare authorities. Those consequences are not identical in every case, and a DWI-with-child allegation should not be described as automatically proving a separate child-endangerment offense or a particular civil outcome.
The present DWI evidence remains central
- Operation and public place: What evidence connects the accused to operating the vehicle, and where?
- Intoxication: Does the evidence prove loss of normal mental or physical faculties or the statutory alcohol concentration?
- Passenger age: What reliable evidence establishes that the passenger was younger than 15 at the relevant time?
- Occupancy: What proves the passenger was in the vehicle while it was allegedly operated?
- Video and witnesses: Do recordings and independent accounts support or contradict the officer’s narrative?
- Breath or blood testing: Was the specimen lawfully obtained, properly collected, preserved, analyzed, and interpreted?
Specimen rules in a child-passenger DWI investigation
Texas Transportation Code Section 724.012 includes an arrest under Penal Code Section 49.045 among circumstances in which an officer must require a breath or blood specimen after a voluntary refusal. The same statute states that a required specimen may not be taken unless the officer obtains a warrant or has probable cause to believe exigent circumstances exist.
The warrant, refusal, statutory warning, body-camera video, collection record, chain of custody, and laboratory or breath-test material should be evaluated together. A required specimen is not beyond legal or scientific review.
Collateral allegations require careful separation
Police reports may use broad language about danger or parenting, and other agencies may conduct their own inquiries. The criminal DWI-with-child elements, any separately charged offense, bond conditions, and any civil or administrative investigation are different legal matters. The defense should identify which allegations were actually made, what evidence supports each one, and which court or agency controls the proceeding.
Do not contact or pressure a witness, delete communications, or post about the incident. Preserve the information and let counsel assess how it should be used.
The ALR license proceeding remains separate
A refusal or qualifying test result may trigger a separate Administrative License Revocation matter. The deadline depends on the notice path and can arrive before the felony case is resolved. Keep every DPS document and review the firm’s ALR hearing guidance immediately.
Evidence to preserve promptly
- All papers from the officer, jail, bond office, court, and DPS.
- Body-camera, dash-camera, roadway, business, parking-lot, and home-camera video.
- Accurate information establishing the passenger’s identity and age.
- Witness contact information, messages, call logs, photographs, receipts, and location records.
- Testing and warrant records, including the complete underlying laboratory or breath-instrument material.
- Any child-welfare, protective-order, school, or medical documents related to the allegation.
Frequently asked questions
What age makes the passenger allegation apply?
Texas Penal Code Section 49.045 applies when the passenger is younger than 15 years of age.
Is DWI with a child passenger a felony in Texas?
Yes. Section 49.045 classifies the offense as a state jail felony. Criminal history and other facts may create additional legal issues.
Does the allegation automatically prove child endangerment?
No. DWI with a child passenger has its own statutory elements. Any separately alleged offense or civil inquiry must be evaluated under its own law and evidence.
Can police require a specimen in a child-passenger DWI case?
Texas law identifies Section 49.045 among circumstances requiring a specimen after refusal, but a required specimen must be supported by a warrant or probable cause for exigent circumstances. The actual authority and records require review.
Legal information reviewed: November 4, 2026. Statutes and procedures can change, and the law applicable to a case may depend on the alleged offense date, criminal history, and individual facts.