Felony Exposure
Third DWI and Felony DWI in Texas
A third DWI is a third degree felony under section 49.09(b)(2), carrying two to ten years in the penitentiary and a fine of up to $10,000.
The question that decides these cases is usually not what happened on the night. It is which prior offenses the State can count, and that list is broader than most people expect.
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Which priors count toward a felony
Section 49.09(c) is where felony DWI cases are usually won or lost, because it defines what counts as a prior, and it is not limited to driving a car.
Two prior convictions from any combination of intoxication offenses will do it. That includes operating a watercraft, an aircraft or an amusement ride while intoxicated. A boating conviction from years ago is a qualifying prior in exactly the same way a DWI is.
Out of state convictions count too, under section 49.09(c)(1)(F). Somebody who picked up a DUI in another state before moving to Texas is carrying a prior here, even though the offense was charged under a different name in a different system.
And a single prior conviction for intoxication manslaughter elevates on its own under section 49.09(b)(1). One prior, not two.
Preparing the enhancement issue starts with obtaining the complete record for each alleged prior and matching it to section 49.09. The charging instrument and judgment show what offense was actually alleged and resolved, while the sentence, plea papers, and identifying information help establish the disposition and the person involved. That comparison is especially important for out-of-state cases, boating or other intoxication-operation offenses, and deferred adjudications, where the label on a database entry may not answer whether the record falls within the Texas enhancement definition.
The other routes to a felony DWI
A third offense is the most common felony DWI, but it is not the only one, and two of these need no prior at all.
Felony DWI in Texas
| Route to a felony | Level | Exposure |
|---|---|---|
| Third DWI, section 49.09(b)(2) | Third degree felony | 2 to 10 years |
| Passenger younger than 15, section 49.045 | State jail felony | 180 days to 2 years |
| Active school crossing zone, section 49.04(e) | State jail felony | 180 days to 2 years |
| Intoxication assault, section 49.07 | Third degree felony | Serious bodily injury to another |
| Intoxication manslaughter, section 49.08 | Second degree felony | Death of another |
The school crossing zone route took effect on September 1, 2025 and still appears on very few Texas DWI sites. It requires no injury, no child passenger and no prior. A first offense committed in an active school zone is a felony.
What changes at felony level
The difference between a Class A misdemeanor and a third degree felony is not a longer version of the same case.
A different court
Felony DWI is heard in a district court rather than a county court at law. In Travis County that means one of nine district courts on a random docket draw.
Consequences beyond the sentence
A felony conviction is a permanent bar to a license to carry, ends eligibility for many professional licenses, and carries the civil consequences that attach to any felony.
No sealing at all
A second or subsequent DWI is not eligible for nondisclosure, and a standing conviction cannot be expunged. At felony level there is no route back.
Where a felony DWI case can still go
Two things are worth knowing before anyone assumes a felony charge has one outcome.
The priors have to be proved, and proving them is not automatic. Whether an out of state conviction actually qualifies, whether an old plea was to what the State says it was, and whether the enhancement paragraphs are correctly pleaded are all real questions. A case charged as a third can sometimes not be one.
Where the felony is properly charged, structured programs exist in some counties. Williamson County runs a dedicated felony DWI court program, which is a supervised track rather than an ordinary docket. Whether that is the right route depends on what the evidence shows, which is a decision to make with the video and lab work in front of you.
Habitual offender enhancement under chapter 12 is also possible in some circumstances, though a case cannot be enhanced under both section 49.09 and the habitual provisions.
The Texas DWI community-supervision guide explains conditions, violations, and revocation without implying that supervision is available in every felony case.
The first question I ask
Not what happened on the night. What the priors actually are, where they came from, and whether each one qualifies.
A boating conviction, an out of state DUI or an old deferred can each turn a misdemeanor into a felony, and each is checkable.
Related pages
Felony DWI questions
Does a DUI from another state count as a prior?
Yes. Section 49.09(c)(1)(F) makes out of state convictions count, even though the offense was charged under a different name.
I have a boating while intoxicated conviction. Does that count?
Yes. Section 49.09(c) counts prior convictions from any combination of intoxication offenses, including watercraft, aircraft and amusement rides.
Is a third DWI always a felony?
Two qualifying priors make it a third degree felony under section 49.09(b)(2). A single prior intoxication manslaughter conviction elevates on its own under section 49.09(b)(1).
Can a first offense ever be a felony?
Yes, in two situations needing no prior and no injury: a passenger under 15 under section 49.045, and since September 1, 2025 a DWI in an active school crossing zone under section 49.04(e).
Can a felony DWI be sealed?
No. A second or subsequent DWI is not eligible for nondisclosure and a standing conviction cannot be expunged.
What is the first thing to look at?
The priors. Whether each one qualifies, whether it is what the State says it is, and whether the enhancement is correctly pleaded. A case charged as a third is not always a third.