Intoxication Manslaughter: Texas Penal Code §49.08

The Texas Intoxication Manslaughter law covers accidentally or mistakenly killing someone as a result of committing another intoxication offense, such as DWI, Flying While Intoxicated or Boating While Intoxicated.

In Texas, the Intoxication Manslaughter law allows state prosecuting attorneys to charge anyone who the police believe was driving while intoxicated on alcohol or drugs if there was a wreck that killed 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.

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 Texas legislature codified this criminal offense in Texas Penal Code Section 49.08. While the statute itself has not been amended since 2007, its penalty provisions under §49.09 were significantly expanded in 2025. These new enhancements now allow prosecutors to seek first-degree felony punishment in additional circumstances, including when more than one person is killed in the same criminal transaction or when a defendant with a prior intoxication offense commits the new offense while “in violation” of Penal Code Chapter 51.

The Penal Code classifies 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?

Texas law currently 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 and up to twenty years in prison, plus a fine of up to $10,000.^[2]

Enhancements to a Felony of the First Degree. The state may seek to enhance an Intoxication Manslaughter charge to a first degree felony under one of several different circumstances. In the earliest enhancement created by the legislature, enacted in 2007, the state can seek a first degree felony enhancement by proving that the person killed was a firefighter, emergency medical services personnel, a peace officer, in the actual discharge of official duties.^[3] Judges were added to this list in 2017. ^[4]

During the 2025 legislative session, the legislature created two additional enhancements – and gave them the same section number. One new enhancement elevates the Intoxication Manslaughter offense to a first degree felony if more than one person is killed in the same criminal transaction.^[5] Another new enhancement elevates the offense if the defendant has a prior intoxication offense and, at the time of the new offense, was “in violation” of Penal Code Chapter 51.^[6] It is unclear how courts will interpret what exactly the legislature meant by “in violation” Chapter 51 – as opposed to being “convicted of” a violation of Chapter 51. In any case, these enhancements only apply to offenses committed on or after September 1, 2025.^[7]

Stacking. Another way for the state to obtain a greater punishment is through stacking. If multiple victims are involved, prosecutors may file separate counts and ask the court to stack sentences so they run consecutively. 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.

Deadly Weapon Findings. Prosecutors often seek a deadly weapon finding in Intoxication Manslaughter cases. Courts cannot grant community supervision if there is a deadly weapon finding.^[8] In addition, parole is delayed.

Legislative Carelessness. Because two conflicting versions of §49.09(b-2)(2) were enacted in the same session in 2025, courts and practitioners are left with overlapping enhancement rules. This reflects a lack of legislative care in reconciling simultaneous bills and virtually guarantees statutory-construction disputes until clarified by future legislation or appellate decisions.^[9]

New Intoxicated Operation of Motor Vehicle Offense Fines

The 86th Texas Legislature created additional fines for all offenses relating to the operation of a motor vehicle while intoxicated.^[10] These fines range from $3,000 to $6,000, and are as follows:^[11]

• (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;
• (3) $6,000 for a conviction where a specimen analysis showed an alcohol concentration of 0.15 or more.

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.

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.

What changed in 2025?

In 2025, the Legislature added new first-degree enhancements to the Intoxication Manslaughter penalty scheme and restricted probation eligibility for a narrow subset of cases.

• New first-degree enhancements. The penalty statute now contains two distinct paths to a first-degree felony:
  “An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of: (1) a person described by Subsection (b-1); or (2) more than one person during the same criminal transaction.”^[12]
  “An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person: (1) caused the death of a person described by Subsection (b-1); or (2) has previously been convicted of an offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated, and at the time of the commission of the instant offense was in violation of Chapter 51.”^[13]
• Probation narrowed for a subset of cases. “Notwithstanding any other provision of this chapter, a defendant is not eligible for community supervision, including deferred adjudication community supervision, under this chapter if the defendant is charged with or convicted of an offense under: (1) Chapter 51, Penal Code; or (2) Section 49.08, Penal Code, if the offense is punishable under Section 49.09(b-2)(2), Penal Code.”^[14]
• Effective date and applicability. These 2025 changes apply only to offenses committed on or after September 1, 2025; earlier conduct remains governed by prior law.^[15]

Legislative Carelessness. Two conflicting versions of §49.09(b-2)(2) were enacted in the same session—one using the “more than one person” multiple-victim trigger and another using the “prior intoxication offense + Chapter 51 violation” trigger—inviting statutory-construction disputes and inconsistent application until clarified by later legislation or the courts.^[16]

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 limitations for Intoxication Manslaughter in Texas?

Intoxication Manslaughter offenses have a three-year limitations period.^[17]

Can you get probation for Intoxication Manslaughter in Texas?

Intoxication Manslaughter is generally eligible for community supervision, but you are required to spend a minimum of 120 days in jail as a condition of probation.^[18] There are numerous other special provisions that will apply to community supervision as well. Courts are categorically barred from granting deferred adjudication probation for Intoxication Manslaughter convictions.^[19]

Notwithstanding the general eligibility for community supervision, beginning September 1, 2025, community supervision is unavailable in a narrow subset of Intoxication Manslaughter cases: if the defendant has a prior intoxication offense and, at the time of the new offense, was “in violation” of Penal Code Chapter 51.^[20] Chapter 51 contains the new and controversial (and likely, unconstitutional) laws that the Texas Legislature passed related to immigration status. What exactly the legislature meant by “in violation” of Chapter 51 (and how courts will interpret that) is an open question. This change applies only to offenses committed on or after September 1, 2025. Earlier conduct remains governed by prior law.^[21]

Context and legal concerns. This new exemption from probation eligibility is tethered to alleged violations of Penal Code Chapter 51. In practice, it creates two tiers of community-supervision eligibility that will largely track immigration status and relies on state immigration-crime determinations in an area typically governed by federal law, raising substantial equal-protection, due-process, and federal-preemption questions.

Legislative Carelessness. During the same session, two different versions of Penal Code §49.09(b-2)(2) were enacted: one treats the offense as a first-degree felony when “more than one person” is killed in the same criminal transaction. The other uses the “prior intoxication offense + Chapter 51 violation” trigger. This duplication invites statutory-construction disputes and inconsistent application until clarified by subsequent legislation or the courts.^[22]

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 one of the enhancements under §49.09 to increase the penalty classification 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.

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Legal References:

^1. Texas Penal Code §49.08. This law is current as of 2025.^2. Texas Penal Code §49.08(b)^3. Texas Penal Code §49.09(b-2), as enacted by HB 1212, 80th Legislature (RS), Section 4^4. Texas Penal Code §49.09(b-1), as amended by HB 2908, 85th Legislature (RS), Section 5^5. Texas Penal Code §49.09 (multiple-victim version) (b-2)(2), as amended by SB 745, 89th Legislature (RS), Section 1^6. Texas Penal Code §49.09 (b-2)(2) (prior-conviction plus Chapter 51 violation version), as amended by HB 2017, 89th Legislature (RS), Section 2^7. HB 2017, 89th Legislature (RS), Section 6 (applicability), Section 7 (effective date); SB 745, 89th Legislature (RS), Section 2 (applicability), Section 3 (effective date)^8. Art. 42A.054(b), Texas Code of Criminal Procedure^9. Texas Penal Code §49.09(b-2)(2) (multiple-victim version); Texas Penal Code §49.09(b-2)(2) (prior-conviction + ch. 51 version)^10. Texas Transportation Code §709.001(a)^11. Texas Transportation Code §709.001(b)^12. Texas Penal Code §49.09(b-2)(2) (multiple-victim version), as amended by SB 745, 89th Legislature (RS), Section 1^13. Texas Penal Code §49.09(b-2)(2) (prior-conviction plus Chapter 51 version), as amended by HB 2017, 89th Legislature (RS), Section 2^14. Code of Criminal Procedure Art. 42A.059(2), as enacted by HB 2017, 89th Legislature (RS), Section 3^15. HB 2017, 89th Legislature (RS), Section 6 (applicability), Section 7 (effective date); SB 745, 89th Legislature (RS), Section 2 (applicability), Section 3 (effective date)^16. Texas Penal Code §49.09(b-2)(2) (multiple-victim version); Texas Penal Code §49.09(b-2)(2) (prior-conviction plus ch. 51 version)^17. See Code of Criminal Procedure 12.01(9)^18. Code of Criminal Procedure Art. 42A.401(a)(5)^19. See Code of Criminal Procedure Art. 42A.102(b)(1)(A)^20. See Code of Criminal Procedure Art. 42A.059(2), as enacted by HB 2017, 89th Legislature (RS), Section 3^21. HB 2017, 89th Legislature (RS), Section 6 (applicability), Section 7 (effective date)^22. Texas Penal Code §49.09(b-2)(2) (multiple-victim version); Texas Penal Code §49.09(b-2)(2) (prior-conviction plus Chapter 51 violation version)