Intoxication Manslaughter: Texas Penal Code §49.08

Texas Criminal Law

A person commits Intoxication Manslaughter when he or she accidentally or mistakenly kills someone as a result of commiting another intoxication offense, such as DWI, Flying While Intoxicated or Boating While Intoxicated.

In Texas, a felony charge for Intoxication Manslaughter usually arises after a person who the state attorneys believe was “drunk driving” (or on drugs while driving) gets into a car accident that kills the driver’s own passenger or a person in another car. A person can also be charged with Intoxication Manslaughter if he or she killed someone as a result of operating a different kind of vehicle or assembling an amusement park ride while drunk or on drugs.

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Effective as of September 1, 2019, there are additional fines required to be imposed on intoxication-related offenses, including Intoxication Manslaughter. Learn more about these changes below.

Drunk driving (technically, “Driving While Intoxicated” or DWI for short) is an entirely separate crime, but the elements of DWI are also found within the Intoxication Manslaughter offense. Intoxication Assault is also very similar to Intoxication Manslaughter, but Intoxication Assault requires only serious bodily injury while Intoxication Manslaughter requires the death of an injured person.

The legislature has not updated the Intoxication Manslaughter offense since 2007, although many of the laws regarding intoxication offenses more generally have been updated.

The Penal Code codifies the Texas Intoxication Manslaughter 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 Manslaughter below.

What is the current Texas law about Intoxication Manslaughter?

The current Texas law defines the offense of Intoxication Manslaughter in Penal Code Section §49.08 as follows:[1]

(a) A person commits an offense if the person:

(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and

(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

The state attorneys must prove every element of Intoxication Manslaughter, including “operating,” “in a public place,” while “intoxicated,” and “by reason of that intoxication” “causes the death of another,” in order to obtain a conviction.

How much prison time can I get if I am convicted of Intoxication Manslaughter?

Intoxication Manslaughter is a second degree felony punishable by a minimum of two years in prison. The maximum punishment for an Intoxication Manslaughter charge is twenty years in prison. Along with imprisonment, the state can also fine you up to $10,000. The state may also seek to enhance Intoxication Manslaughter charges under Section 49.09 of the Texas Penal Code to a first degree felony by proving that the person killed was a firefighter, peace officer, judge, or emergency medical services personnel.[2]

Another way for the state to obtain a greater punishment is through stacking. For instance, if two people are killed in one accident, a person can be charged with two counts or charges of Intoxication Manslaughter. Texas law permits a judge to stack the punishments so that the person can get a prison sentence that requires serving the sentences consecutively. And if one person is killed and another is injured (which results in an Intoxication Assault charge), the punishments for each charge can be added together in the same way, making the punishments consecutive. However, the judge has the ultimate authority about whether or not to allow stacking.

State attorneys prosecuting an Intoxication Manslaughter charge can also allege that the vehicle was a “deadly weapon.” If a person is convicted with this enhancement, parole eligibility is delayed. In addition it would prohibit a judge from giving the person community supervision.

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.[3] These new fines range from $3,000 to $6,000, and are as follows:[4]

  • (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.

What does intoxication mean?

Intoxicated” is defined in Section 49.01(2) of the Texas Penal Code. The state can prove this element by showing that you had above a .08 blood alcohol content level or that you had lost the normal use of mental or physical faculties as a result of the “introduction” into your body of any “substance.” Learn more about the definition of intoxication

What is the difference between a murder charge and an Intoxication Manslaughter charge?

Intoxication Manslaughter is not the same as a murder or a manslaughter charge because the Intoxication Manslaughter charge is specific to accidentally or mistakenly killing someone as a result of driving while intoxicated. Intoxication Manslaughter does not require that you have an intent to kill someone. You can be charged with killing someone under the Intoxication Manslaughter statute for killing them by accident or mistake.

In contrast, to be charged with murder, you have to have the intent to kill a person unless you killed them while committing another felony.

Can a passenger be charged with Intoxication Manslaughter?

A passenger in a vehicle cannot be convicted of Intoxication Manslaughter even if the passenger was intoxicated and being being disruptive to the driver. The reason a passenger cannot be convicted with Intoxication Manslaughter is that the Intoxication Manslaughter statute is only applicable to the person operating the vehicle.

What does it mean to “cause” a death?

The Intoxication Manslaughter statute states that a person operating a vehicle can be charged with Intoxication Manslaughter if they are (1) “intoxicated” and (2) “by reason of that intoxication causes” someone’s death. The state’s attorneys must prove beyond a reasonable doubt that the intoxication was the reason for the accident. As a result, an Intoxication Manslaughter defense attorney should always conduct a comprehensive investigation into how the accident occurred if this element could be in dispute.

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

You can be charged with Intoxication Manslaughter if the police or the state attorneys believe that you did what the Intoxication Manslaughter offense describes. You can be charged whether or not you are actually guilty of the crime, and you can be charged whether it was your passenger or another person that was killed. You can also be charged even if you were prescribed the substance that the state attorneys allege was causing your intoxication.

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

Intoxication Manslaughter offenses have a three-year limitations period.[5]

Can you get probation for Intoxication Manslaughter in Texas?

If you are charged with Intoxication Manslaughter and are found guilty, you are required to spend a minimum of 120 days in jail.[6] You cannot get deferred adjudication probation for an Intoxication Manslaughter conviction.

What level of crime is Intoxication Manslaughter in Texas?

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

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

Can a Texas Intoxication Manslaughter offense be reduced?

Yes, Intoxication Manslaughter can be reduced. The most typical reduction would be to an Intoxication Assault, but it’s also possible to get a reduction to DWI.

^1. Texas Penal Code §49.08. This law is current as of the 88th Legislature Regular Session.^2. Section 49.09(b-2) of the Texas Penal Code^3. 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.

^4. 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.

^5. See Code of Criminal Procedure 12.01(9)^6. Texas Penal Code Article 42.12 Sec. 13(2)(b) – “A judge granting community supervision to a defendant convicted of an offense under Section 49.08, Penal Code, shall require as a condition of community supervision that the defendant submit to a period of confinement of not less than 120 days.”

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