Driving While Intoxicated With Child Passenger: Texas Penal Code §49.045

The Texas Driving While Intoxicated with Child Passenger law (“DWI with Child“) is a “drunk driving” offense that you commit by driving while intoxicated with a child younger than 15 years old in the car.

Driving While Intoxicated with Child Passenger is a felony level offense.

The Texas legislature codified this criminal offense in Texas Penal Code Section 49.045. The law was not updated in 2023. In fact, this law has not been amended since it was enacted in 2003, but many of the laws related to DWI offenses have been updated. For instance, as of September 1, 2019, there are additional fines required to be imposed on intoxication-related offenses, including DWI with Child.

The Penal Code classifies the Texas DWI With Child Passenger 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 Driving While Intoxicated With Child Passenger below.

What is the current Texas law about DWI with Child?

The current Texas law defines the offense of Driving While Intoxicated With Child Passenger in Penal Code Section §49.045 as follows:^[1]

(a) A person commits an offense if:

(1) the person is intoxicated while operating a motor vehicle in a public place; and

(2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.

Accordingly, along with the four elements common of DWI offenses (intoxication, operation, motor vehicle and public place) the Driving While Intoxicated with Child Passenger offense requires the state’s attorneys to also prove that a passenger 14 years old or younger was in the car while the DWI was taking place.

What if the child passenger is my child?

If the child passenger in your car is your own child, the Texas Department of Family and Protective Services (DFPS) will likely get involved and accuse you of endangering the welfare of your child. If DFPS gets involved, your child could be removed from your custody pending the outcome of an investigation and welfare hearing that can take a year or more. It is also possible that CPS may remove your child from your home permanently if it determines that you are not a suitable parent. CPS cases are complex and separate from the criminal case, and your rights are very different than they are in criminal court. You will need to address these issues with a family law attorney.

Because Texas DFPS reasons that a Driving While Intoxicated with Child Passenger case places the child in danger of death or serious injury, DFPS classifies this offense as a form of neglect under Section 261.001 of the Texas Family Code.^[2]

Does it matter if the child passenger was not injured?

You may be charged and convicted of Driving While Intoxicated with Child Passenger even if the child in the vehicle was not injured and even if you did not injure any one else at all.

What should I do if CPS or the Texas Department of Family and Protective Services gets involved in my Driving While Intoxicated with Child Passenger case?

If the Department of Family and Protective Services (DFPS) gets involved in your DWI with Child Passenger case because your child or children were in the car, you will need to hire an attorney who is experienced in handling child protective services cases in addition to a criminal lawyer. Criminal law and CPS-related family law are very different practice areas.

CPS is most often alerted about a possible case of child endangerment in a Driving While Intoxicated with Child Passenger case by the arresting officer or the prosecutor handling the case. Although CPS is not always alerted, professionals (including police and prosecutors) are mandated by law to report such cases.^[3]

If CPS decides they want to get involved, they are able to remove children from a home quickly and without notice.^[4] However, Texas law requires an “adversary” hearing within 14 days (with one possible 7 day extension) from the removal.^[5] You should make sure to be represented by an attorney at this hearing to contest the removal.

It is important to remember that you are not required to talk to DFPS should they get involved in your Driving While Intoxicated with Child Passenger case. However, you should make the decision about whether to talk with CPS or cooperate more fully only with the advice of an attorney.

What is the statute of limitation for DWI With Child Passenger in Texas?

DWI With Child Passenger offenses have a three-year limitations period.^[6]

What is the penalty for a Texas DWI With Child Passenger offense?

The Driving While Intoxicated with Child Passenger offense is classified as a state jail felony,^[7] punishable by a minimum of 180 days in a state jail and a maximum of 2 years in a state jail and a maximum fine of $10,000.

In addition to the criminal penalty, Texas law imposes additional penalties, such as the new superfines related to reinstating your drivers license after a DWI conviction.

Can you get probation for DWI With Child Passenger in Texas?

The Texas Code of Criminal Procedure prohibits judges from accepting deferred adjudication pleas in Driving While Intoxicated with a Child Passenger cases.^[8] However, the Code of Criminal Procedure allows both judges and juries to grant probation.^[9]

What level of crime is DWI With Child Passenger in Texas?

The Penal Code classifies DWI With Child Passenger as a state jail felony. Additionally, the state may seek a repeat DWI enhancement to a third 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 §49.045. This law is current as of the 88th Legislature Regular Session.^2. Texas Family Code §261.001(4) –;

“Neglect” includes:

(A) the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child;

(B) the following acts or omissions by a person:

(i) placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child’s level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child…

^3. Texas Family Code §261.101^4. Chapter 262 of the Texas Family Code governs the procedures of the Department of Family and Protective Services.^5. Texas Family Code §262.201^6. See Code of Criminal Procedure 12.01(9)^7. Texas Penal Code §49.045(b)^8. Art. 42A.102, Texas Code of Criminal Procedure^9. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054 and Art. 42A.056.