Possession of an alcoholic beverage in a motor vehicle, the offense most people call an open container, is a Class C misdemeanor under Texas Penal Code Section 49.031. The maximum punishment is a fine not to exceed 500 dollars. You do not have to be drinking, you do not have to be intoxicated, and you do not even have to be driving. The statute reaches a vehicle that is stopped or parked on a public highway.
What does Texas Penal Code 49.031 say?
Subsection (b) provides that a person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. The statute adds that possession by a person of one or more open containers in a single criminal episode is a single offense, so a car with four open cans in it is one charge, not four.
What counts as an open container?
Section 49.031(a) defines an open container as a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed. Read that list carefully, because three of the four conditions have nothing to do with whether the container is open right now. A resealed bottle of wine with a broken seal is an open container. A twist-off that was opened and closed again is an open container. The only bottle that is safely not an open container is one that has never been opened.
What counts as the passenger area?
The passenger area is the area designed for the seating of the operator and passengers of the vehicle. The statute then carves three places out of that definition, and those three places are the whole practical answer to this offense. The passenger area does not include a glove compartment or similar storage container that is locked, it does not include the trunk, and it does not include the area behind the last upright seat of the vehicle if the vehicle does not have a trunk. Put the bottle in the trunk and there is no offense. Put it in an unlocked glove box and there is.
Do you have to be driving to be charged under Section 49.031?
No. The words in the statute are that the offense applies regardless of whether the vehicle is being operated or is stopped or parked. What the statute does require is that the vehicle be located on a public highway. A car parked in a private driveway or a private lot is not on a public highway, and that distinction, rather than whether the engine was running, is usually the one worth litigating.
What is the punishment for an open container in Texas?
| Offense | Grade | Maximum punishment |
|---|---|---|
| Possession of an alcoholic beverage in a motor vehicle, Sec. 49.031(d) | Class C misdemeanor | Fine not to exceed 500 dollars, no confinement (Penal Code Sec. 12.23) |
| Driving while intoxicated with an open container in immediate possession, Sec. 49.04(c) | Class B misdemeanor | Up to 180 days in jail and a 2,000 dollar fine, with a minimum term of confinement of six days |
Who is exempt from the open container law?
Subsection (c) provides two exceptions. The first covers a passenger, but not the operator, in the passenger area of a motor vehicle used primarily for the transportation of persons for compensation, which the statute illustrates with a bus, a taxicab, and a limousine. The second covers a passenger in the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, and a recreational vehicle. Both exceptions apply to passengers. Neither one covers the driver.
How does an open container change a DWI charge?
This is the reason a Class C fine-only offense is worth taking seriously. Under Section 49.04(c), if it is shown at trial that an open container of alcohol was in the immediate possession of the defendant at the time of a driving while intoxicated offense, the offense is still a Class B misdemeanor but it carries a minimum term of confinement of six days rather than the ordinary 72 hours. That is a statutory floor on a first DWI, and it comes from the container, not from the breath or blood result. There is more on the underlying offense on our page for Texas Penal Code 49.04.
Charged With an Open Container in Harris County?
Blass Law handles Chapter 49 cases across Houston and the surrounding counties, and an open container citation attached to a DWI is not a side issue when it moves the minimum jail time. Call (713) 664-4000 or request a case evaluation.
Related: Texas Penal Code 49.04, Driving While Intoxicated, Texas Penal Code 49.02, Public Intoxication, and our Houston open container 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.