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Open Container vs. DWI in Texas: Key Differences
Two different offenses can arise from the same traffic stop.
In short: Texas open-container law and DWI law are separate. Section 49.031 concerns knowing possession of an open alcoholic beverage container in a vehicle passenger area on a public highway. DWI concerns intoxicated operation in a public place. Neither offense automatically proves the other.
Explore this page 11 sections
Can you get an open-container ticket without being intoxicated?
Yes. Section 49.031 does not require proof of intoxication. It addresses knowing possession, the container, its location and the vehicle's location. The offense is a Class C misdemeanor. The ordinary Class C fine ceiling is $500 under section 12.23; that is not necessarily the total amount including court costs.
Does the rule apply when the vehicle is parked?
The statute expressly includes vehicles stopped or parked on a public highway. It also defines that highway area more broadly than just a moving traffic lane. The exact location matters. Do not assume that turning off the engine resolves an open-container allegation.
What counts as the passenger area?
The definition covers the area designed for seating the driver and passengers. It excludes a locked glove compartment or similar locked storage, the trunk, and the area behind the last upright seat in a vehicle without a trunk. Those statutory distinctions should be checked against the actual vehicle and where the item was found.
Are passengers covered?
The provision is not limited to drivers. It concerns the person who knowingly possesses the container. The statute also contains specific passenger exceptions for certain transportation-for-compensation vehicles and living quarters of specified motor homes or similar vehicles. These are defined exceptions, not a general permission for every passenger to drink in any car.
How can an open container affect a DWI?
Section 49.04(c) separately addresses an open container in the driver's immediate possession at the time of DWI. It specifies a Class B offense with a six-day minimum term of confinement. A container somewhere in a vehicle and immediate possession by the operator are not interchangeable descriptions. Other enhancement provisions may affect the case; counsel should evaluate the charged allegations together.
What evidence should I preserve?
- The citation and any separate DWI charging paperwork.
- Photos or video showing the vehicle layout and container location.
- The description of the container and whether it held an alcoholic beverage.
- Names of occupants and a private account of what you actually observed.
Do not move, alter or discard evidence to reconstruct a more favorable scene. Preserve existing files and let counsel assess what they establish. An open-container citation, a DWI allegation and any licensing notice need separate attention.
How do I get started?
The first consultation is free. It is with a Director of Client Engagement, not an attorney. Clients who hire us work with an attorney. Call (214) 239-2013. Phones are answered 24/7, with AI covering when no staff is free.
Last updated October 2026
Common questions
Does an open container automatically prove DWI?
No. DWI requires proof of intoxicated operation in a public place; an open container alone does not establish those elements.
Can open-container law apply to a parked car?
Yes. Section 49.031 includes a vehicle stopped or parked on a public highway.
Is every passenger automatically exempt?
No. The statute includes specific passenger exceptions, not a blanket exemption.
Do not wait for your court date to get help. Call (214) 239-2013.
Phones are answered 24/7, with AI covering when no staff is free.
This page provides general information about Texas law. It is not legal advice, and reading it does not create an attorney-client relationship.