Possession of Alcoholic Beverage in Motor Vehicle: Texas Penal Code §49.031

The Texas Possession of Alcoholic Beverage in Motor Vehicle law makes it illegal to possess an open container in the passenger area of a motor vehicle on a public highway.

This is the Texas “Open Container” law, and it applies whether the vehicle was in operation, stopped, or parked.

The Texas legislature codified this criminal offense in Texas Penal Code Section 49.031. The legislature did not update this law in 2023. In fact, this law has not been amended since 2001.

The Penal Code codifies the Texas Possession of Alcoholic Beverage in Motor Vehicle law under Title 10 “Offenses Against Public Health, Safety, And Morals,” Chapter 49 “Intoxication and Alcoholic Beverage Offenses.” Learn more about the Texas offense of Possession of Alcoholic Beverage in Motor Vehicle below.

What is the current Texas law about Possession of Alcoholic Beverage in Motor Vehicle?

The current Texas law defines the offense of Possession of Alcoholic Beverage in Motor Vehicle in Penal Code Section §49.031 as follows:^[1]

(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.

What is an open container?

In Texas, an open container means any receptacle containing any amount of alcohol, that is open, was opened before, has a broken seal or has had a portion of its contents removed. If it contains alcohol and isn’t sealed, Texas law defines it as an open container.^[2] Whether or not a seal is broken is a factual question that a jury would determine in the event that you take your case to trial.

Can I be charged if the container was in the trunk, glovebox or backseat?

The statute defines the passenger area of a vehicle as the area “designed for the seating of the operator and passengers of the vehicle.”^[3] However, the statute specifically excludes three areas from the definition:

• A locked glove compartment
• A trunk of a vehicle
• Or the area behind the last upright seat of the vehicle if it does not have a trunk

Can I be arrested for an Open Container violation?

Texas law says that you can only be issued a citation for an open container violation.^[4] However, if there is another violation that the police are planning on charging you with, then you can be arrested for that violation.

What is the DWI enhancement for an Open Container?

Under Texas law, the minimum penalty for a DWI conviction is increased to 6 days confinement if the state proves you had an open container at the time you were driving.^[5]

How can I be charged with a Possession of Alcoholic Beverage in Motor Vehicle offense in Texas?

You can be charged with Possession of Alcoholic Beverage in Motor Vehicle if a police officer believes that all of the elements of the law as described above have been met. The police officer does not need a warrant to take you into custody.

There are two exceptions to the open container law: (1) It is an exception to the statute if the defendant was a passenger in a motor vehicle primarily used for transportation for hire. Examples of such would include, a bus, taxicab, or limousine.^[6] (2) It is also an exception if the passenger was in the living quarters of a motorized house coach, house trailer, or recreational vehicle.^[7]

What is the statute of limitation for Possession of Alcoholic Beverage in Motor Vehicle in Texas?

As a misdemeanor, Possession of Alcoholic Beverage in Motor Vehicle charges have a two-year limitations period.^[8]

What is the penalty for a Texas Possession of Alcoholic Beverage in Motor Vehicle offense?

Possession of Alcoholic Beverage in Motor Vehicle is a Class C Misdemeanor, punishable by a fine of up to $500 under state law.^[9]

Can you get probation for Possession of Alcoholic Beverage in Motor Vehicle in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Possession of Alcoholic Beverage in Motor Vehicle, and judges are also allowed to accept deferred adjudication plea deals.^[10]

Note, however, that judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[11]

What level of crime is Possession of Alcoholic Beverage in Motor Vehicle in Texas?

The Penal Code classifies Possession of Alcoholic Beverage in Motor Vehicle as a Class C misdemeanor.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §49.031. This law is current as of the 88th Legislature Regular Session.^2. Texas Penal Code §49.031(a)(1)^3. Texas Penal Code §49.031(a)(2)^4. Texas Penal Code §49.031(e)^5. Texas Penal Code §49.04(c)^6. Texas Penal Code §49.031(c)(1)^7. Texas Penal Code §49.031(c)(2)^8. See Code of Criminal Procedure 12.02(a)^9. Texas Penal Code §49.031(d)^10. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^11. Art. 42A.054(b), Texas Code of Criminal Procedure