Public Intoxication: Texas Penal Code §49.02

The Texas Public Intoxication law gives police the right to arrest you if they believe you pose a danger to yourself or others due to your intoxication.

Although it is not necessarily illegal to be drunk in a public setting, this law prohibits being so intoxicated that you pose a danger to yourself or others. Drinking in public, while not considered Public intoxication under this law, is frequently prohibited under a city ordinance, but not everywhere.

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 2007.

The Penal Code codifies the Texas Public Intoxication 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 Public Intoxication below.

What is the current Texas law about Public Intoxication?

The current Texas law defines the offense of Public Intoxication in Penal Code Section §49.02 as follows:^[1]

(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

(a-1) For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.

Subsection (a-1) specifies that bars qualify as public places, too. So you can be arrested for Public Intoxication in a bar just the same as you can be in any other public place.

Who decides if you are a danger to yourself or another?

Typically the arresting officer is the person who makes the judgement call as to the threat of danger an intoxicated person poses toward either themselves or others. In many instances, where a person is not posing a threat to other people officers will arrest a person under the guise of them posing a threat to themselves by being “…a danger to himself and if not arrested, could have been the victim of crime.”

Ultimately, you have the right to a jury trial in which your lawyer can make the case to the jury that you were not a threat to anyone. It would be up for the jury to decide whether the state proved beyond a reasonable doubt that you were in fact a danger to yourself or another.

What is a “Public Place” under this law?

The Public Intoxication statute specifically includes bars and other places that sell liquor as being public places for purposes of this offense.^[2]

However, lots of other places also fall into the category of public places. Texas law defines a public place as: “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”^[3]

The list of specific places is nonexclusive. The relevant question in determining whether or not an area is a public place is whether or not the public has access to it. This means that if the public or a substantial group of the public has access to an area, it can be transformed into a public place for purposes of this law, even if it is private property.

Although Texas has not defined access, Black’s Law Dictionary defines access as “an opportunity or ability to enter, approach, pass to and from, or communicate with.”^[4]

For example, consider a person sitting in his own private car. His car could be considered a public place if parked on a public street, and the general public can legally approach and peer into it. This is not an uncommon situation and it is up to the discretion of the jury to determine if it’s a public place.

Should you plead guilty to Public Intoxication?

Pleading guilty, paying the maximum $500 fine, and forgetting the whole thing happened seems appetizing for sure.

However, a conviction for Public Intoxication, despite being a low-level Class C Misdemeanor, can have negative effects on your life.

Potential job opportunities, college admission, military acceptance, and other things may be impacted negatively by pleading guilty.

If you are convicted of Public Intoxication you will not be able to remove it from your record except under certain narrow exceptions.

Because of the severity of the possible collateral consequences, it is strongly recommended that you not deal with it on your own. Investing in an attorney for any Public Intoxication violation in Texas is important.

How can I be charged with a Public Intoxication offense in Texas?

You can be charged with Public Intoxication if the state’s attorneys believe that each of the elements of 49.02(a) as described in the section above have been met.

Many cities have enacted prohibitions against drinking on public property, but Denton is a notable exception.^[5]

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

As a misdemeanor, Public Intoxication charges have a two-year limitations period.^[6]

What is the penalty for a Texas Public Intoxication offense?

A conviction for Public Intoxication carries a maximum possible punishment under the law of up to a $500 fine.^[7] However, there is a separate punishment statute for people under 21 years old similar to that of a DUI.^[8]

Can you get probation for Public Intoxication in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Public Intoxication, and judges are also allowed to accept deferred adjudication plea deals.^[9]

What level of crime is Public Intoxication in Texas?

The Penal Code classifies Public Intoxication as a Class C misdemeanor unless the offender is under 21 years old.

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

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Legal References:

^1. Texas Penal Code §49.02. This law is current as of the 88th Legislature Regular Session.^2. Texas Penal Code §49.02(a-1)^3. Texas Penal Code §1.07(40)^4. Black’s Law Dictionary 14 (9th ed. 2009)^5. Welcome to Denton, Where You Can Legally Drink Alcohol in Public^6. See Code of Criminal Procedure 12.02(a)^7. Texas Penal Code §49.02(c)^8. Texas Penal Code §49.02(e)^9. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .