Intoxication Assault: Texas Penal Code §49.07

In order to convict you, the Texas Intoxication Assault law requires the state to prove that you accidentally or mistakenly injured someone while committing any of the other intoxicated operating offenses, such as Driving While Intoxicated, Boating While Intoxicated, or Flying While Intoxicated.

Intoxication Assault is a serious crime that escalates a drunk driving or driving under the influence charge to a felony. The state most often prosecutes Intoxication Assault when police believe a person is drunk or on drugs while driving and gets into a car accident. You can be charged with Intoxication Assault whether you injure a passenger in your own vehicle or someone in another vehicle. Learn more about the underlying Texas Driving While Intoxicated law.

The state must prove several elements of the Intoxication Assault law in order to obtain a conviction. Among the most frequently contested are: whether you were intoxicated under the law, whether your intoxication was the cause of the injury, and whether you were the person operating the vehicle.

The Texas legislature codified this criminal offense in Texas Penal Code Section 49.07. The law was not updated in 2023. In fact, this law has not been amended since 2007.

The Penal Code classifies the Texas Intoxication Assault 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 Intoxication Assault below.

What is the current Texas law about Intoxication Assault?

Texas law currently defines the offense of Intoxication Assault in Penal Code Section §49.07 as follows:^[1]

(a) A person commits an offense if the person, by accident or mistake:

(1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or

(2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

The Intoxication Assault statute makes it clear that the state does not have to prove you injured someone intentionally to charge you with Intoxication Assault in Texas. You can be charged with Intoxication Assault for injuring someone by accident or mistake.

What constitutes being intoxicated?

Intoxication means being under the influence of alcohol or on drugs to the point where you no longer have normal use of your mental or physical functions. The state can prove intoxication by showing that you had a blood alcohol concentration of .08 or more or that you lost the “normal” use of your mental or physical faculties due to the introduction of any substance into your body. Note that you are “intoxicated” under Texas Law even if you were prescribed the medicine or it was over the counter or the substance is otherwise entirely legal. Learn more about the definition of intoxication under Texas law here.

What type of vehicles does the Intoxication Assault statute include?

For Intoxication Assault offenses requiring the operation of a motor vehicle, the law does not include vehicles that travel on a fixed track,^[2] like a train.

What type of injury does Intoxication Assault involve? What does serious bodily injury mean?

To obtain an Intoxication Assault conviction requires proof of a serious bodily injury. Serious bodily injury means that the an injured person faced a substantial risk of death, that the person has suffered or will suffer permanent disfigurement, or that the injured person will now have an impaired body part or organ.^[3]

How can I be charged with an Intoxication Assault offense in Texas?

Because the Intoxication Assault law does not require an intent to harm anyone, you can be charged with Intoxication Assault even if you did not mean to injure anyone.

What is the statute of limitation for Intoxication Assault in Texas?

Intoxication Assault offenses have a three-year limitations period.^[4]

What is the penalty for a Texas Intoxication Assault offense?

The Texas Intoxication Assault law classfies the offense as a third degree felony, unless one of the enhancements under §49.09 applies.

An Intoxication Assault charge can be enhanced to a second degree felony under §49.09 if the offense caused serious bodily injury to another in the nature of a traumatic brain injury that results in a persistent vegetative state.^[5] An Intoxication Assault charge can be enhanced to a first degree felony under §49.09 if the offense caused serious bodily injury to a firefighter or emergency medical services personnel while in the actual discharge of an official duty.^[6]

Effective in 2017, an Intoxication Assault charge can be enhanced to a first degree felony under §49.09 “if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer or judge while the officer or judge was in the actual discharge of an official duty.”^[7]

A third degree felony is punishable by a minimum of two years in prison and can lead up to ten years in prison. Learn more about the range of punishment for third degree felonies (and all other felonies) here.

In addition, there is a minimum of 30 days in jail required if you receive a probation (“community supervision”) sentence.^[8]

New Intoxicated Operation of Motor Vehicle Offense Fines

The 86th Texas Legislative created additional fines for all offenses relating to the operation of a motor vehicle while intoxicated.^[9] These new fines range from $3,000 to $6,000, and are as follows:^[10]

• (1) $3,000 for the first conviction within a 36-month period;
• (2) $4,500 for a second or subsequent conviction within a 36-month period; and
• (3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

Can you get probation for Intoxication Assault in Texas?

The Texas Code of Criminal Procedure prohibits judges from accepting deferred adjudication pleas in Intoxication Assault cases.^[11] However, the Code of Criminal Procedure allows both judges and juries to grant probation.^[12]

What level of crime is Intoxication Assault in Texas?

The Penal Code classifies Intoxication Assault as a third degree felony, but the state may seek an enhancement under §49.09 to a first or second degree felony.

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

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Legal References:

^1. Texas Penal Code §49.07. This law is current as of 2024.^2. Texas Penal Code §32.34(2)^3. Texas Penal Code §49.07(b)^4. See Code of Criminal Procedure 12.01(9)^5. Texas Penal Code §49.09(b-4)^6. Texas Penal Code §49.09(b-1)(1)^7. Texas Penal Code §49.09(b-1)(2), as enacted by House Bill 2908, Sections 6-7, effective September 1, 2017^8. Texas Penal Code Article 42.12 Sec. 13(2)(a) – “A judge granting community supervision to a defendant convicted of an offense under Chapter 49, Penal Code, shall require as a condition of community supervision that the defendant submit to: (1) … not less than 30 days of confinement in county jail if the defendant was convicted under Section 49.07”^9. Texas Transportation Code §709.001(a), as implemented by H.B. 2048, 86th Texas Legislature, effective September 1, 2019 –

(a) In this section, “offense relating to the operating of a motor vehicle while intoxicated” has the meaning assigned by Section 49.09, Penal Code.

^10. Texas Transportation Code §709.001(a), as implemented by HB 2048, 86th Texas Legislature, effective September 1, 2019 –

(b) Except as provided by Subsection (c), in addition to the fine prescribed for the specific offense, a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated shall pay a fine of:

(1) $3,000 for the first conviction within a 36-month period;

(2) $4,500 for a second or subsequent conviction within a 36-month period; and

(3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

^11. Art. 42A.054, Texas Code of Criminal Procedure^12 See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.056 and Art. 42A.102 .