Texas Codes

Tex. Penal Code § 49.09 (2026)

Enhanced Offenses And Penalties

✓ current as of May 2026

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Sec. 49.09. ENHANCED OFFENSES AND PENALTIES. (a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.

(b) An offense under Section 49.04, 49.045, 49.05, 49.06, 49.061, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:

(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or

(2) two times of any other 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.

(b-1) An offense under Section 49.07 is:

(1) a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a firefighter or emergency medical services personnel while in the actual discharge of an official duty; or

(2) a felony of the first degree 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.

Text of subsection as amended by Acts 2025, 89th Leg., R.S., Ch. 307 (S.B. 745), Sec. 1

(b-2) 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.

Text of subsection as amended by Acts 2025, 89th Leg., R.S., Ch. 939 (H.B. 2017), Sec. 2

(b-2) 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.

(b-3) For the purposes of Subsection (b-1):

(1) "Emergency medical services personnel" has the meaning assigned by Section 773.003, Health and Safety Code.

(2) "Firefighter" means:

(A) an individual employed by this state or by a political or legal subdivision of this state who is subject to certification by the Texas Commission on Fire Protection; or

(B) a member of an organized volunteer fire-fighting unit that:

(i) renders fire-fighting services without remuneration; and

(ii) conducts a minimum of two drills each month, each at least two hours long.

(b-4) An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to another in the nature of a traumatic brain injury that results in a persistent vegetative state.

(1) "Offense relating to the operating of a motor vehicle while intoxicated" means:

(A) an offense under Section 49.04 or 49.045;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;

(D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;

(E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or

(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.

(2) "Offense of operating an aircraft while intoxicated" means:

(A) an offense under Section 49.05;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;

(C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;

(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or

(E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.

(3) "Offense of operating a watercraft while intoxicated" means:

(A) an offense under Section 49.06 or 49.061;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;

(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or

(E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.

(4) "Offense of operating or assembling an amusement ride while intoxicated" means:

(A) an offense under Section 49.065;

(B) an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride; or

(C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.

(d) For the purposes of this section, a conviction for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.061, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.

(e) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.

(f) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.

(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D. For purposes of this section, a person is considered to have been convicted of an offense under Section 49.04 or 49.06 if the person was placed on deferred adjudication community supervision for the offense under Article 42A.102, Code of Criminal Procedure.

(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Subchapter I, Chapter 42A, Code of Criminal Procedure, this subsection controls.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.56, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 21, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1364, Sec. 12, 13, eff. Jan. 1, 2000; Acts 2001, 77th Leg., ch. 648, Sec. 1, 2, eff, Sept. 1, 2001; Acts 2001, 77th Leg., ch. 969, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 787, Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1275, Sec. 2(117), eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 996 (H.B. 51), Sec. 1, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 996 (H.B. 51), Sec. 3, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 662 (H.B. 1212), Sec. 4, eff. September 1, 2007.

Acts 2011, 82nd Leg., R.S., Ch. 960 (H.B. 1199), Sec. 3, eff. September 1, 2011.

Acts 2015, 84th Leg., R.S., Ch. 770 (H.B. 2299), Sec. 2.84, eff. January 1, 2017.

Acts 2015, 84th Leg., R.S., Ch. 1067 (H.B. 2246), Sec. 2, eff. September 1, 2015.

Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 23.010, eff. September 1, 2017.

Acts 2017, 85th Leg., R.S., Ch. 440 (H.B. 2908), Sec. 5, eff. September 1, 2017.

Acts 2019, 86th Leg., R.S., Ch. 1298 (H.B. 3582), Sec. 7, eff. September 1, 2019.

Acts 2023, 88th Leg., R.S., Ch. 813 (H.B. 1163), Sec. 2, eff. September 1, 2023.

Acts 2023, 88th Leg., R.S., Ch. 813 (H.B. 1163), Sec. 3, eff. September 1, 2023.

Acts 2025, 89th Leg., R.S., Ch. 307 (S.B. 745), Sec. 1, eff. September 1, 2025.

Acts 2025, 89th Leg., R.S., Ch. 939 (H.B. 2017), Sec. 2, eff. September 1, 2025.

Notes of Decisions

Cited in 621 cases (90 in the last 5 years), 1995–2026 · leading case: Getts v. State, 155 S.W.3d 153 (Tex. Crim. App. 2005).

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Getts v. State, 155 S.W.3d 153 (Tex. Crim. App. 2005). · cites it 14× “[11] Tex. Pen Code § 49.09 et. seq.; see also Weaver v.”

Oliva v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018). · cites it 8× “See Tex. Penal Code § 49.09 (title). 459 S.W.”

Ex Parte Roemer, 215 S.W.3d 887 (Tex. Crim. App. 2007). · cites it 24× “Texas Penal Code Section 49.09 governs the enhancement of intoxication offenses and states that: (a) Except as provided by Subsection (b), an offense under Section 49.”

Weaver v. State, 87 S.W.3d 557 (Tex. Crim. App. 2002). · cites it 10× “For purposes of proving felony DWI, Texas Penal Code § 49.09(e) bars the State from using intoxication-related convictions that are more than ten years older than the instant offense ("remote convictions"), unless there exists another intoxication related conviction within ten…”

Tate v. State, 120 S.W.3d 886 (Tex. App. 2003). · cites it 12× “Appellant contends that the Mississippi DUI statute is vague and overbroad in that it allows a conviction for DUI based solely on the conduct of alcohol consumption rather than the conduct of driving in a state of intoxication; therefore, absent a statement in the judgment that…”

Harris v. State, 204 S.W.3d 19 (Tex. App. 2006). · cites it 7× “The State Properly Used Appellant’s 1989 DWI Conviction to Enhance the Charge to Felony DWI In his second issue, appellant argues the State’s use of appellant’s December 7, 1989 DWI conviction to enhance the charge against appellant to felony DWI violates Texas Penal Code…”

Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002). · cites it 6× “Tex. Penal Code § 49.09(b). Before trial, he offered to stipulate to the existence of the two prior convictions the State was required to prove, and he requested that the trial court prevent the State from introducing evidence of the prior DWI convictions.”

Mapes v. State, 187 S.W.3d 655 (Tex. App. 2006). · cites it 8× “TEX. PEN.CODE ANN. § 49.09(a) (Vernon 2003).”

Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000). · cites it 6× “Texas Penal Code § 49.09. Unlike the statute in Old Chief , the Texas DWI statute makes the kind of offense for which the defendant was previously convicted an element of the offense in the subsequent prosecution, and therefore, unfair prejudice does not arise from disclosing…”

Gibson v. State, 995 S.W.2d 693 (Tex. Crim. App. 1999). · cites it 7× “TEX. PENAL CODE § 49.09(a). Class A and B misdemeanor driving while intoxicated offenses are tried in the county courts.”

State v. Morgan, 110 S.W.3d 512 (Tex. App. 2003). · cites it 14× “[4] After considering the State's motion, the trial court ruled that it would not instruct the jury on a Class A punishment range if appellee was found guilty, even if the jury were to find the "enhancement paragraph" true.”

McGuire v. State, 493 S.W.3d 177 (Tex. App. 2016). · cites it 4× “Texas Penal Code section 49.09 A DWI offense is a third-degree felony “if it is shown on the trial of the offense that the person has previously been convicted: .”

Show all 621 citing cases →

— Tex. Penal Code § 49.09(2)(b) — 1 case

Rodolfo Alcorta Curiel v. the State of Texas (Tex. App. 2025).

— Tex. Penal Code § 49.09(a) — 44 cases

Oliva v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018). “See Tex. Penal Code § 49.09 (title). 459 S.W.”

State v. Morgan, 110 S.W.3d 512 (Tex. App. 2003). “[4] After considering the State's motion, the trial court ruled that it would not instruct the jury on a Class A punishment range if appellee was found guilty, even if the jury were to find the "enhancement paragraph" true.”

Gibson v. State, 995 S.W.2d 693 (Tex. Crim. App. 1999). “TEX. PENAL CODE § 49.09(a). Class A and B misdemeanor driving while intoxicated offenses are tried in the county courts.”

Mapes v. State, 187 S.W.3d 655 (Tex. App. 2006). “TEX. PEN.CODE ANN. § 49.09(a) (Vernon 2003).”

Ex parte Bowman, 533 S.W.3d 337 (Tex. Crim. App. 2017).

— Tex. Penal Code § 49.09(b) — 122 cases

Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002). “Tex. Penal Code § 49.09(b). Before trial, he offered to stipulate to the existence of the two prior convictions the State was required to prove, and he requested that the trial court prevent the State from introducing evidence of the prior DWI convictions.”

Gibson v. State, 995 S.W.2d 693 (Tex. Crim. App. 1999). “TEX. PENAL CODE § 49.09(a). Class A and B misdemeanor driving while intoxicated offenses are tried in the county courts.”

Barfield v. State, 63 S.W.3d 446 (Tex. Crim. App. 2001).

Mann v. State, 58 S.W.3d 132 (Tex. Crim. App. 2001).

Hernandez v. State, 109 S.W.3d 491 (Tex. Crim. App. 2003).

— Tex. Penal Code § 49.09(b)(1) — 4 cases

Ex Parte Roemer, 215 S.W.3d 887 (Tex. Crim. App. 2007). “Texas Penal Code Section 49.09 governs the enhancement of intoxication offenses and states that: (a) Except as provided by Subsection (b), an offense under Section 49.”

Benson, Yusulf Shaheed, 459 S.W.3d 67 (Tex. Crim. App. 2015).

Roemer, Ex Parte Randall Lee (Tex. Crim. App. 2007).

Jack Aaron Collins v. State (Tex. App. 2013).

— Tex. Penal Code § 49.09(b)(2) — 134 cases

Mapes v. State, 187 S.W.3d 655 (Tex. App. 2006). “TEX. PEN.CODE ANN. § 49.09(a) (Vernon 2003).”

Oliva v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018). “See Tex. Penal Code § 49.09 (title). 459 S.W.”

Bowley v. State, 310 S.W.3d 431 (Tex. Crim. App. 2010).

Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016).

Williams v. State, 172 S.W.3d 730 (Tex. App. 2005).

— Tex. Penal Code § 49.09(c) — 1 case

O.D. Van Duren, Jr. v. State (Tex. App. 2014).

— Tex. Penal Code § 49.09(c)(1) — 1 case

Mark Steven Virovatz v. the State of Texas (2026).

— Tex. Penal Code § 49.09(c)(1)(B) — 1 case

— Tex. Penal Code § 49.09(c)(1)(C) — 3 cases

Vrba v. State, 69 S.W.3d 713 (Tex. App. 2002).

Ex Parte Ervin, 187 S.W.3d 386 (Tex. Crim. App. 2005).

Ervin, Ex Parte George Alexander (Tex. Crim. App. 2005).

— Tex. Penal Code § 49.09(c)(1)(F) — 1 case

Glenn Johnson v. State (Tex. App. 2014).

— Tex. Penal Code § 49.09(c)(l)(C) — 1 case

Ex Parte Ervin, 187 S.W.3d 386 (Tex. Crim. App. 2005).

— Tex. Penal Code § 49.09(d) — 8 cases

Getts v. State, 155 S.W.3d 153 (Tex. Crim. App. 2005). “[11] Tex. Pen Code § 49.09 et. seq.; see also Weaver v.”

Williamson v. State, 46 S.W.3d 463 (Tex. App. 2001).

Howard v. State, 137 S.W.3d 282 (Tex. App. 2004).

State v. Newsom, 64 S.W.3d 478 (Tex. App. 2001).

Bridget Renee Safrit v. the State of Texas (Tex. App. 2024).

— Tex. Penal Code § 49.09(e) — 32 cases

Weaver v. State, 87 S.W.3d 557 (Tex. Crim. App. 2002). “For purposes of proving felony DWI, Texas Penal Code § 49.09(e) bars the State from using intoxication-related convictions that are more than ten years older than the instant offense ("remote convictions"), unless there exists another intoxication related conviction within ten…”

Getts v. State, 155 S.W.3d 153 (Tex. Crim. App. 2005). “[11] Tex. Pen Code § 49.09 et. seq.; see also Weaver v.”

Harris v. State, 204 S.W.3d 19 (Tex. App. 2006). “The State Properly Used Appellant’s 1989 DWI Conviction to Enhance the Charge to Felony DWI In his second issue, appellant argues the State’s use of appellant’s December 7, 1989 DWI conviction to enhance the charge against appellant to felony DWI violates Texas Penal Code…”

Bower v. State, 77 S.W.3d 514 (Tex. App. 2002).

— Tex. Penal Code § 49.09(e)(1) — 2 cases

Getts v. State, 155 S.W.3d 153 (Tex. Crim. App. 2005). “[11] Tex. Pen Code § 49.09 et. seq.; see also Weaver v.”

Getts, Bobby Doyle (Tex. Crim. App. 2005).

— Tex. Penal Code § 49.09(e)(1)(2) — 1 case

Bower v. State, 77 S.W.3d 514 (Tex. App. 2002).

— Tex. Penal Code § 49.09(e)(1999) — 2 cases

Smith v. State, 158 S.W.3d 463 (Tex. Crim. App. 2005).

Smith, Rodney Camile (Tex. Crim. App. 2005).

— Tex. Penal Code § 49.09(e)(2) — 1 case

State v. Celaya, 205 S.W.3d 736 (Tex. App. 2006).

— Tex. Penal Code § 49.09(e)(2)(A) — 1 case

Anderson v. State, 110 S.W.3d 98 (Tex. App. 2003).

— Tex. Penal Code § 49.09(e)(2)(B) — 1 case

Summers v. State, 172 S.W.3d 102 (Tex. App. 2005).

— Tex. Penal Code § 49.09(e)(3) — 3 cases

Smith v. State, 176 S.W.3d 438 (Tex. App. 2004).

State v. Celaya, 205 S.W.3d 736 (Tex. App. 2006).

— Tex. Penal Code § 49.09(e)(l)(2) — 1 case

Bower v. State, 77 S.W.3d 514 (Tex. App. 2002).

— Tex. Penal Code § 49.09(f) — 3 cases

Phillips v. State, 992 S.W.2d 491 (Tex. Crim. App. 1999).

Maibauer v. State, 968 S.W.2d 502 (Tex. App. 1998).

Phillips v. State, 964 S.W.2d 735 (Tex. App. 1998).

— Tex. Penal Code § 49.09(f)(1) — 2 cases

Getts v. State, 155 S.W.3d 153 (Tex. Crim. App. 2005). “[11] Tex. Pen Code § 49.09 et. seq.; see also Weaver v.”

Getts, Bobby Doyle (Tex. Crim. App. 2005).

— Tex. Penal Code § 49.09(f)(2) — 2 cases

Getts v. State, 155 S.W.3d 153 (Tex. Crim. App. 2005). “[11] Tex. Pen Code § 49.09 et. seq.; see also Weaver v.”

Getts, Bobby Doyle (Tex. Crim. App. 2005).

— Tex. Penal Code § 49.09(g) — 6 cases

Ex Parte Randy Serrato, 374 S.W.3d 636 (Tex. App. 2012).

Harris, Robert v. State (Tex. App. 2006).

Jimmy Johnson v. State (Tex. App. 2016).

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