DWI with a child passenger in Texas

What does the State have to prove?

That you operated a motor vehicle in a public place while intoxicated, and that a passenger was younger than 15. Each child passenger can support a separate count.

What is the punishment?

A state jail felony carries 180 days to 2 years in a state jail and up to a $10,000 fine (Penal Code 12.35). Prior felony convictions or other enhancements can raise the range.

Will CPS get involved?

Police may report the arrest to the Department of Family and Protective Services, which can open an investigation separate from the criminal case. Talk to your attorney before giving any statement.

What are the defenses?

The same issues that matter in any DWI apply: the stop, the field sobriety tests, the breath or blood test, and the video. The child's age must also be proven.

Can there be more than one charge?

A DWI with a child passenger case often comes with related issues: a separate DWI-level allegation, a possible child endangerment investigation, and a report to the Department of Family and Protective Services. Each one has its own rules and its own process, and they should be handled together.

Does a conviction count as a prior DWI?

Yes. Under Penal Code 49.09, an "offense relating to the operating of a motor vehicle while intoxicated" includes DWI with a child passenger. A conviction can be used to raise a later DWI to a Class A misdemeanor or, with two priors, to a third-degree felony.

What does a state jail felony mean in practice?

A state jail felony carries 180 days to 2 years in a state jail facility and a fine up to $10,000 (Penal Code 12.35). There is no parole from a state jail sentence. Community supervision is often possible, and in some cases the court can punish the offense as a Class A misdemeanor under Penal Code 12.44. See state jail felonies.

How are these cases defended?

• The DWI elements: the State still has to prove intoxication, operation and a public place. Every defense to a regular DWI applies. See DWI defense.
• The child's age: the passenger must be younger than 15, and the State must prove it.
• The stop and the tests: the video, field sobriety tests and breath or blood results are reviewed the same way as in any DWI.

What happens with my children while the case is pending?

Bond conditions can limit driving with children, and a family services investigation may run on its own track. Questions about custody belong in a separate court; we focus on the criminal case and coordinate with any other lawyer you have. Keep copies of everything the agency gives you.

What should I do now?

• Request the ALR hearing within 15 days.
• Follow every bond condition, including any interlock order (Code of Criminal Procedure 17.441 applies to certain repeat and serious intoxication cases).
• Do not discuss the facts with investigators without talking to a lawyer.

Where are these cases heard outside Dallas?

We handle these cases from our only office, in downtown Dallas, in the courts of 12 North Texas counties. Each county page explains where DWI cases are heard and who prosecutes them: Dallas, Tarrant, Collin, Denton, Rockwall, Kaufman, Ellis, Johnson, Parker, Wise, Hunt, Navarro.

What evidence matters most?

• Dash camera and body camera video, including how the child was cared for during the stop
• The reason for the stop and how the field sobriety tests were given
• Breath or blood test records, or the blood warrant
• Proof of the child's age
• Any statements made at the scene, and whether warnings were given

What collateral consequences should I expect?

A felony record can affect jobs, housing, professional licenses and firearm rights. Because the case involves a child, schools, employers and licensing boards may also ask about it. Insurance and license consequences are the same as in any DWI, including the ALR suspension. Planning for these issues early helps when negotiating the case.

Is deferred adjudication available for DWI with a child passenger?

No. Code of Criminal Procedure 42A.102 lists Penal Code 49.045 among the offenses for which a judge may not grant deferred adjudication. Regular community supervision may still be possible, and a judge can sometimes punish a state jail felony as a Class A misdemeanor under Penal Code 12.44.

Does the state DWI fine apply?

Yes, after a final conviction. Transportation Code 709.001 applies to an "offense relating to the operating of a motor vehicle while intoxicated" as defined in Penal Code 49.09, which includes 49.045. The fine is $3,000 for a first conviction within 36 months, $4,500 for a second or later within 36 months, or $6,000 with a test result of 0.15 or more, and it must be waived if the court finds you indigent.

Can a DWI with child passenger be sealed?

The special DWI nondisclosure laws, Government Code 411.0726, 411.0731 and 411.0736, apply to offenses under Penal Code 49.04, not 49.045. A dismissal, a no-bill or an acquittal may qualify for expunction under Code of Criminal Procedure chapter 55A, so how the case ends matters for your record.

What should I gather right away?

Keep the notice of suspension and bond paperwork, any CPS contact information, and the names of anyone who can speak to the child's care since the arrest.

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 or start a chat. Phones and chat are answered 24/7, with AI covering when no staff is free.

Last updated October 2026