Felony on a First Offense
DWI With a Child Passenger in Texas
Section 49.045 makes a DWI a state jail felony where a passenger was younger than 15. First offense, no injury required, no prior needed.
This is one of only two ways a first DWI becomes a felony, and it brings consequences well beyond the criminal case.
Free Consultation
Call 512-469-6056
Austin DWI Defense Attorney
Ken Gibson
More than 6,000 DWI cases since 1998.
6,000+
DWI Cases Handled
Since 1998
Practicing DWI Defense
DWI Only
Defense Focus
What section 49.045 requires and what it does not
The State has to prove the elements of DWI and that a passenger under 15 was in the vehicle. It does not have to prove the child was harmed, frightened or even aware. The presence of the passenger is the aggravator.
The exposure is 180 days to two years in a state jail facility and a fine of up to $10,000. Because it is a felony, the case is heard in a district court rather than a county court at law.
Three further consequences attach that do not apply to an ordinary first DWI. Deferred adjudication is unavailable under article 42A.102(b)(1)(A). An ignition interlock is a mandatory bond condition under article 17.441 even on a first offense. And a specimen becomes mandatory on refusal under section 724.012(b)(2), still subject to the warrant requirement.
The passenger element under Texas Penal Code section 49.045 has two factual parts: the person was a passenger in the vehicle and was younger than 15. Dash-camera and body-camera video, the offense report, witness statements, and images of the seating area may address occupancy. Identification, school, medical, or family records may address age. Reviewing the underlying records matters when an estimate written at the scene is the only support for either fact.
The part that is not in the Penal Code
A charge under section 49.045 frequently generates a child protective services referral. That is a separate civil process with its own timeline, its own standard of proof and its own consequences, and it does not wait for the criminal case to finish.
For a parent, this is often the more frightening track of the two, and it is the one people are least prepared for. Decisions made early in the criminal case can affect it, which is a reason to think about both at once rather than sequentially.
License consequences follow the ordinary pattern: suspension on conviction of 90 days to a year under section 521.344(a), with the administrative suspension running separately on its 15 day clock.
Why this is charged more often than people expect
The threshold is a passenger under 15, not a child in a car seat. A fourteen year old counts.
There is no requirement that the driving was worse, the reading higher or anyone endangered beyond the fact of the passenger being there.
Related pages
Child passenger DWI questions
Does the child have to be harmed?
No. Section 49.045 requires only that a passenger younger than 15 was in the vehicle. No injury and no evidence of danger to the child is needed.
Is this really a felony on a first offense?
Yes. It is a state jail felony with no prior required, carrying 180 days to two years and a fine to $10,000.
Can I get deferred adjudication?
No. Article 42A.102(b)(1)(A) excludes section 49.045 from deferred adjudication.
Will child protective services get involved?
Frequently. It is a separate civil process running on its own timeline alongside the criminal case, and it is worth planning for from the start.