Texas criminal defense questions

Short, sourced answers to common Texas criminal defense questions. Each answer cites the statute or case it relies on, and each links to a page with more detail. For advice about your own case, talk to a lawyer.

DWI

• Will I go to jail for a first DWI in Texas?
  Not necessarily. A first DWI is usually a Class B misdemeanor with a 72-hour minimum if jail is imposed, and up to 180 days and a $2,000 fine (Penal Code 49.04, 12.22). A judge can instead grant community supervision, and Texas law does not require jail as a probation condition for a first DWI (Code of Criminal Procedure 42A.401).
• Is DUI different from DWI in Texas?
  Yes. In Texas, DUI applies only to drivers under 21 who have any detectable amount of alcohol, and a first offense is a Class C misdemeanor (Alcoholic Beverage Code 106.041). DWI applies to intoxicated drivers of any age (0.08 or more, or loss of normal use) and starts as a Class B misdemeanor (Penal Code 49.04).
• How long does a DWI stay on your record in Texas?
  A DWI conviction stays on your Texas criminal record permanently. It cannot be expunged, and there is no time limit on using it to enhance a later DWI (Penal Code 49.09). Some first DWIs can be sealed from the public through an order of nondisclosure after a waiting period. An arrest that ends without a conviction may be expunged.
• Can you get a DWI expunged in Texas?
  Only if the DWI did not end in a conviction or court-ordered probation. A DWI arrest can be expunged after an acquittal, or if the case was never filed, was dismissed after a completed pretrial intervention program, or was dismissed for lack of probable cause (Code of Criminal Procedure 55A.052 and 55A.053). A conviction or deferred adjudication cannot be expunged.

Protective orders and family violence

• Can a protective order be dropped by the person who asked for it?
  Not on their own. Once a judge signs a protective order in Texas, only the court can change or end it. The protected person can file a motion to modify it (Family Code 87.001), but the order stays in force until the judge rules. Contact the protected person invites can still be a crime (Penal Code 25.07(d)).
• What is the difference between bond conditions, an emergency protective order and a protective order in Texas?
  They come from different places. Bond conditions are terms a magistrate sets for release from jail (Code of Criminal Procedure 17.49). A magistrate's order for emergency protection is a separate order issued after an arrest (17.292). A protective order is a civil order a judge issues under the Family Code, usually for up to two years (Family Code 85.025).
• Will I lose my guns after a family violence charge in Texas?
  A charge alone does not take away your guns, but an emergency or protective order can bar possession while it lasts (Penal Code 46.04(c)). A Class A family violence assault conviction bars possession under Texas law until five years after release from jail or community supervision (46.04(b)), and federal law adds a ban (18 U.S.C. 922(g)(9)).

Drug charges

• Is a first drug possession charge a felony in Texas?
  It depends on the drug and the amount, not on whether it is your first offense. Possessing less than one gram of a Penalty Group 1 drug, such as cocaine or methamphetamine, is a state jail felony (Health and Safety Code 481.115(b)), while two ounces or less of marijuana is a Class B misdemeanor (481.121(b)(1)).
• Is possession of a vape pen a felony in Texas?
  It depends on what is inside. A THC oil cartridge is usually charged as a controlled substance in Penalty Group 2, and possession of less than 1 gram is a state jail felony (Health and Safety Code 481.116). A nicotine vape is not a felony; for someone under 21, possession is a fine-only offense of up to $100 (161.252).

Felonies and court

• Can I get probation for a first felony in Texas?
  Often, yes. A judge can grant community supervision when the sentence is 10 years or less, except for offenses listed in Code of Criminal Procedure 42A.054, such as murder or aggravated robbery, or a deadly weapon finding. A jury can recommend it if you have no prior felony conviction (42A.055, 42A.056). Deferred adjudication is another option for many charges (42A.102).
• What happens at an arraignment in Dallas County?
  An arraignment is the hearing where the court confirms your identity, the charge is read and you enter a plea, usually not guilty (Code of Criminal Procedure 26.02 and 26.11). In Dallas County, it happens in your assigned court at the Frank Crowley Courts Building. Your lawyer can file a written waiver of arraignment (26.011).
• What happens if I miss court in Dallas County?
  The judge can forfeit your bond and a warrant can issue for your arrest (Code of Criminal Procedure 22.01). Intentionally or knowingly missing court can also be a new crime: a Class A misdemeanor if your case is a misdemeanor, or a third-degree felony if it is a felony (Penal Code 38.10). A reasonable excuse is a defense.

Police and searches

• Can police search my car without a warrant in Texas?
  Sometimes. Texas officers may search a car without a warrant if they have probable cause to believe it contains evidence of a crime (Keehn v. State, Texas Court of Criminal Appeals, 2009), if you give voluntary consent, or in a few other situations. Evidence obtained in violation of the law cannot be used against you (Code of Criminal Procedure 38.23).

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Last updated October 2026