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Texas DWI with child passenger — Penal Code § 49.045

Texas DWI with child passenger is a criminal offense under Penal Code § 49.045. Base conduct is classified as a state jail felony; enhancements and aggravators can move the punishment range higher. Below: the controlling statute text, the full punishment range, common defense theories, and what to do if you have been charged in Collin, Dallas, Denton, or Tarrant County.

Published 2026-05-15 · Reviewed by Reggie London and Njeri London, Co-Founding Partners · Last reviewed: 2026-05-15
Controlling statute: Texas § 49.045
Classification: State jail felony
Punishment range: State jail felony — 180 days to 2 years in state jail facility and a fine up to $10,000; license suspension and ignition interlock required

The controlling statute

Texas Penal Code § 49.045 makes it a state jail felony to drive while intoxicated when a child under 15 is a passenger in the vehicle. The statute elevates ordinary DWI (Class B misdemeanor under § 49.04) to felony exposure to deter drunk driving in family settings. Conviction carries collateral consequences beyond the criminal sentence — mandatory CPS investigation, possible loss of parental rights, and licensure consequences for professional caregivers. Courts treat DWI-child as a high-priority offense and routinely deny pretrial bond reductions.

Classification & punishment range

ElementDetail
StatuteTexas § 49.045
ClusterDWI & Intoxication
ClassificationState jail felony
RangeState jail felony — 180 days to 2 years in state jail facility and a fine up to $10,000; license suspension and ignition interlock required
Last reviewed2026-05-15

Elements the State must prove

To convict on a Texas § 49.045 charge, the State must prove every element beyond a reasonable doubt:

  1. Defendant operated a motor vehicle in a public place
  2. Defendant was intoxicated (loss of normal mental or physical faculties, or BAC 0.08+)
  3. A child younger than 15 years of age was a passenger in the vehicle
  4. Defendant knew or reasonably should have known the child was a passenger

Defense strategies

L and L Law Group, PLLC develops the following defense strategies on every DWI with Child Passenger case:

Enhancements & collateral consequences

While § 49.045 itself is a state jail felony, prior DWI convictions can support enhancement under § 12.425 to a third-degree felony with two prior felony convictions. Intoxication assault under § 49.07 or intoxication manslaughter under § 49.08 may run alongside § 49.045 in injury cases. Child endangerment under § 22.041 sometimes adds when intoxication created risk to the child.

Key Legal Terms

Child Passenger (§ 49.045(a)(2))
Any person younger than 15 years of age riding in the vehicle; triggers state-jail-felony enhancement of ordinary DWI.
State Jail Felony (§ 12.35)
180 days to 2 years in state jail facility, up to $10,000 fine; minimum 75% of sentence must be served unless probated.
Mandatory CPS Referral
Family Code § 261.301 reporting duty triggered by DWI-child arrest; investigation often parallel to criminal case.

Frequently Asked Questions

What is the punishment for DWI with a child passenger in Texas?
Texas Penal Code § 49.045 classifies DWI-child as a state jail felony — 180 days to 2 years in state jail facility plus a fine up to $10,000. License suspension under § 521.342 lasts up to 2 years, and ignition interlock is mandatory. Probation is available but typically includes intensive supervision.
Does CPS get involved?
Yes. Family Code § 261.301 requires reporting of conduct endangering a child, and law enforcement routinely refers DWI-child arrests to the Texas Department of Family and Protective Services. CPS opens an investigation and may file for emergency conservatorship in serious cases. Coordinate criminal and family-law defense early.
What counts as a child passenger?
Anyone younger than 15 years of age under § 49.045(a)(2). Age 15 and older does not trigger the felony enhancement, though DWI itself remains chargeable. The State must prove the child's age with birth certificate, school records, or testimony.
Can I get probation for DWI-child?
Yes, but conditions are strict. Article 42A.401 governs DWI community supervision, and courts typically require ignition interlock, MADD victim-impact panel, alcohol treatment, and intensive home visits. State jail felony probation also requires a minimum jail term as condition under Article 42A.302.
Is DWI-child a 3g offense?
No — § 49.045 is not listed under Article 42A.054 (formerly 3g). However, the offense is non-eligible for deferred adjudication if the defendant had a prior DWI conviction under § 49.04. The collateral consequences (license suspension, surcharges, CPS) remain severe regardless of disposition.

References & Authoritative Sources

  1. Texas § 49.045
  2. Texas CCP Chapter 42A — Community Supervision
  3. Texas Courts
  4. Texas Department of Public Safety
  5. Texas State Law Library

About the Authors

Reggie London

Co-Founding Partner · Texas Bar No. 24043514

Reggie London co-founded L and L Law Group with a focus on federal criminal defense, complex felony defense, and TEA/SBEC matters. Licensed in Texas, admitted to TXND and TXED.

Njeri London

Co-Founding Partner · Texas Bar No. 24043266

Njeri London co-founded L and L Law Group with a focus on DWI defense, family violence cases, and juvenile defense. Licensed in Texas, admitted to TXND and TXED.

Charged with DWI with Child Passenger? Talk to L and L Law Group.

Co-founding partners Reggie London and Njeri London personally handle every case. Free consultation. Frisco, Texas.

Call (972) 370-5060

Service Areas

L&L Law Group represents clients across North Texas counties for DWI, assault, drug crimes, juvenile defense, outstanding warrants, bond reduction, and expunction matters.

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