Public intoxication is a Class C misdemeanor under Texas Penal Code Section 49.02. The maximum punishment is a 500 dollar fine and no jail sentence. But the offense is not simply being drunk in public. The State has to prove you appeared in a public place while intoxicated to the degree that you may endanger yourself or another person, and that last clause is where most of these cases are actually won or lost.
What does Texas Penal Code 49.02 say?
Subsection (a) provides that 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. Subsection (a-1) adds that a premises licensed or permitted under the Alcoholic Beverage Code is a public place for purposes of this section, which is why arrests inside bars are charged this way. Subsection (c) makes the offense a Class C misdemeanor.
Intoxicated carries the same meaning here that it does everywhere else in Chapter 49. Section 49.01(2) defines it as either not having the normal use of mental or physical faculties by reason of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body, or having an alcohol concentration of 0.08 or more. There is more on that definition on our page explaining what intoxicated means in Texas.
What are the elements of public intoxication in Texas?
The State has to prove three things beyond a reasonable doubt, and it has to prove all three. First, that you appeared in a public place. Second, that you were intoxicated as Section 49.01(2) defines it. Third, and this is the element that actually gets litigated, that you were intoxicated to the degree that you may endanger yourself or another person. The statute does not require proof that anyone was harmed, or even that a specific danger materialized at a specific moment, but it does require some evidence of potential danger beyond the fact of intoxication by itself. Standing on a sidewalk waiting for a rideshare is not the offense the legislature wrote.
What is the punishment for public intoxication in Texas?
| Offense | Grade | Maximum punishment |
|---|---|---|
| Public intoxication, Sec. 49.02(c) | Class C misdemeanor | Fine not to exceed 500 dollars, no confinement (Penal Code Sec. 12.23) |
| Committed by a person younger than 21, Sec. 49.02(e) | Punished under Alcoholic Beverage Code Sec. 106.071 | Class C misdemeanor, or with at least two prior convictions a fine of 250 to 2,000 dollars, up to 180 days in jail, or both |
A Class C misdemeanor cannot be punished by a jail sentence at all. Section 12.23 of the Penal Code caps it at a fine not to exceed 500 dollars. That does not mean nobody spends a night in jail on a public intoxication, because officers routinely hold people until they are sober, but that confinement is pretrial custody, not punishment.
Is public intoxication a lesser included offense of DWI?
No, and the statute says so in as many words. Subsection (d) of Section 49.02 provides that Section 49.02 is not a lesser included offense under Section 49.04. That matters in a concrete way. A person charged with driving while intoxicated cannot ask the jury to convict on public intoxication instead as a compromise verdict, and the State cannot offer one as a middle path either. If a prosecutor wants to reduce a DWI to a public intoxication, the DWI has to be dismissed and a separate charge filed, which changes what ends up on the record and what can later be expunged.
What defense does the statute itself provide?
Subsection (b) creates a defense to prosecution where the alcohol or other substance was administered for therapeutic purposes and as a part of the person’s professional medical treatment by a licensed physician. That is narrower than it sounds. It is tied to treatment administered by a licensed physician, so it does not automatically cover a prescription you filled and took on your own schedule.
What happens if the person is under 21?
Subsection (e) provides that if the offense is committed by a person younger than 21 years of age, it is punishable in the same manner as an offense under Section 106.071 of the Alcoholic Beverage Code. Under that section the offense is ordinarily still a Class C misdemeanor. But a minor who is not a child and who has been previously convicted at least twice of a covered alcohol offense faces a fine of not less than 250 dollars and not more than 2,000 dollars, confinement in jail for a term not to exceed 180 days, or both. Section 106.071 also carries mandatory add-ons that a straight Class C does not, including community service, and those attach on deferred disposition as well as on conviction.
Does a public intoxication charge stay on your record?
An arrest creates a record whether or not there is ever a conviction, and a Class C is still a criminal offense in Texas. Because it is a fine-only offense, public intoxication is one of the charges where deferred disposition in a justice or municipal court, followed by an expunction once the waiting period runs, is realistic. What forecloses that is paying the fine quickly to make the case go away, because a conviction is generally not expunction eligible. If you are holding a citation for Section 49.02, the decision about how to resolve it needs to come before the plea, not after.
Charged Under Section 49.02 in Harris County?
Blass Law handles Chapter 49 cases across Houston and the surrounding counties, from public intoxication citations through felony intoxication offenses. Call (713) 664-4000 or request a case evaluation.
Related: Texas Penal Code 49.04, Driving While Intoxicated, Texas Penal Code 49.031, Possession of an Alcoholic Beverage in a Motor Vehicle, and our Houston DWI lawyer page.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC — ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.