Texas DWI/DUI

Mark Meisinger handles alcohol related offenses in District, County and Municipal Courts in Dallas and the surrounding areas. Most of these cases are Driving While Intoxicated (DWI). DWI is a specific type of law that requires a knowledgeable attorney who is experienced in handling them.  Finding the best representation and an attorney that will fight for you is essential to fight your criminal case and your possible drivers license suspension.  Mark Meisinger only practices criminal defense and approximately 50% of his cases are DWIs.  He has a proven track record of getting the best possible result for many clients.


dallas DUI attorney

Texas law distinguishes between Driving Under The Influence (DUI) and Driving While Intoxicated (DWI.  DUI is any detectable amount of alcohol and the person is under 21 years old.  DUI is a Class C Misdemeanor. DWI is any age but requires that person be intoxicated.  Intoxication is proven by showing that the person either lost the normal use of their mental faculties OR lost the normal use of their physical faculties OR were over .08 blood alcohol concentration while driving.  Loss of normal use of mental or physical faculties can be by drugs or alcohol.

After being arrested for DUI or DWI a police officer will usually confiscate a person’s drivers license and give them a temporary driving permit and a statutory warning.  The statutory warning explains that whether or not you are criminally prosecuted you may face a drivers license suspension.  The suspension is for 180 days if refusing breath or blood test.  90 days if results are over .08 and the person is over 21.  60 days if any detectable amount of alcohol and the person is under 21.  Refusal or result over .08 is a one year suspension for commercial drivers license (CDL).  *It then says that a person has no later than 15 days to request a hearing on their drivers license suspension or it will be automatically suspended after 40 days.  If a previous suspension than the suspension period can be enhanced to two years or longer.  A breath specimen of .15 or higher will probably require an interlock breath machine on the person’s vehicle as a condition of bond, for half of any probation received, an Occupational Drivers License (ODL) if necessary and require a higher surcharge if convicted.


You or your attorney may make the request for the Administrative License Hearing (ALR) but it MUST BE WITHIN 15 DAYS.  After making the request for either an in person or phone hearing the State Office of Administrative Hearings (SOAH) will mail out a hearing date.  At the hearing the Department of Public Safety (DPS) will have to prove by more evidence than not that there was reasonable suspicion for the peace officer to stop the driver, there was probable cause for the officer to believe the driver was intoxicated, the driver was offered the opportunity to provide a specimen of breath or blood and the driver refuse to provide a specimen or gave a specimen over .08.  If properly subpoenaed the officer responsible for the stop and the officer responsible for the decision to arrest for probable cause of intoxication MUST appear at the in person hearing or be available for the phone hearing for cross examination.  You or your attorney can call witnesses and submit evidence at the hearing. The administrative law judge (ALJ) conducts the hearing and makes the decision on whether or not suspend the drivers license.  The decision can be appealed. 
If a person’s drivers license is suspended by ALR they are usually eligible for an Occupation Drivers License (ODL).  The ODL is filed with a filing fee in the county of arrest or in the county where the arrested person resides.  A copy of SR-22 insurance must be filed with the ODL.  A reinstatement fee of $125 and a supervisional fee of $10 a year must be mailed to Austin DPS. An ODL can be used in all counties in Texas counties for up to 12 hours a day.


Most police officers wear microphones on their person and have cameras in their car.  If stopped and arrested you will be audio and video recorded from the moment the police car’s lights come on if not prior to that all the way to the jail.  This is the best piece of evidence in any DWI case to judge whether a person has the normal use of their mental or physical faculties.  Stand straight, speak clearly and keep your legs apart for balance.  Do not make excited comments or spontaneous statements.  You have the right to an attorney once you are in custody and subject to interrogation. 
In Texas all Standard Field Sobriety Tests (SFST) are voluntary.  Officers will use SFSTs to bolster their case that a person has lost the normal use of their mental or physical faculties for probable cause to arrest and to possibly seek a blood warrant.  You have the right to refuse all SFSTs.  Typically a police officer lures someone into taking the tests by saying something along the lines of “I just need to make sure you are OK and then you can be on your way.”  Some of the problems a normal person would have taking these tests can include nervousness, tiredness, exposure to caffeine or nicotine, fear of being arrested, unlevel ground, weather, cars passing by and numerous medical conditions.  None of the SFST are 100% reliable but will be used 100% against you.  Additionally there are “tricks” to the STSF’s that seasoned officers can use to make any person fail.  It is most likely not in someone’s best interest to take ANY SFSTs on the side of the road.

The SFSTs most common are the Horizontal Gaze Nystagmus (HGN) follow the pen with your eye test, the Walk and Turn (W&T) and the One Leg Stand (OLS).  The HGN consists of six clues, three in each eye that look for nystagmus or jerking of the eye.  The clues are lack of smooth pursuit, onset of nystagmus prior to 45 degrees and distinct nystagmus at maximum deviation.   The officer giving this test must keep the pen 12-15 inches away from the person’s face and move the pen at the correct speed or it can create false results.  Although almost all officers could put the subject in the police car and show the subject’s eyes this rarely ever happens.  Instead we only hear what the officer who is not an eye specialist thinks he may see. This test is 77% accurate or wrong around ¼ of the time. There at least 47 types of nystagmus and 38 things that cause nystagmus other than alcohol.

47 Types of Nystagmus

1. Acquired 2. Anticipatory (Induced) 3. Arthrokinetic (Induced,Somatosensory) 4. Associated(Induced,Stransky’s 5. AudioKinetic (Induced) 6. Bartel’ s(Induced) 7. Brun’s 8. Centripetal 9. Cervical (NeckTorsion,Vestibular-0basilarArteryInsufficiency 10.Crcular/Elliptic/Oblique (Alternataing Windmill, Circumduction, Diagonal, Elliptic, Gyratory, Oblique, Radiary) 11.Congenital (Fixation, Hereditary) 12.Convergence 13.Convergence Invocked 14.Disaccociated, Disjunctive 15.Downbeat 16.Drug Induced (Barbiturate, Bow Tie, Induced) 17.Epileptic (Ictal 18.Flash Induced 19.Gaze-Evoked (Deviational, Gaze-Paretic, Neurasthenic, Seducible, Setting-In) 20.Horizontal 21.Induced (Provoked) 22.Intermittent Vertical 23.Jerk 24.Latent/Manifest Latent (Monocular Fixation, Unimacular) 25.Lateral Medullary 26.Lid 27.Miner’s (Occupational) 28.Muscle Paretic (Myasthenic) 29.Optokinetic (Induced, Optomotor, Panoramic, Railway, Sigma) 30.Optokinetic After-Induced (Post-Optokinetic, Reverse Post-Optokinetic) 31.Pendular (Talantropia) 32.Periodic/Aperiodic Alternating 33.Physiologic (End-Point, Fatigue) 34.Pursuit After Induced 35.Pursuit Defect 36.Pseudo Spontaneous 37.Rebound 38.Reflex (Baer’s) 39.See-Saw 40.Somatosensory 41.Spontaneous 42.Stepping Around 43.Torsional 44.Uniocular 45.Upbeat 46.Vertical 47.Vestibular (Agotropic, Geotro-Pic, Bechterew’s, Caloric, Compensatory,Electrical/Faradic/Gal Vanic, Labyrinthine, Pneumatic/Compression, Positional/Alcohol, Pseudo Caloric)

Obtained from Dr. L. F. Dell’Osso, Nystagmus, Saccadic Intrusions/Oscillations and Oscillopsia, 3 Current Neuro-Opthamology 147 (1989).

Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

Section 32.34(a)
(2) "Motor vehicle" means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.

Sec. 49.06. BOATING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a watercraft.

(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

(4) "Watercraft" means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.

38 Causes of Horizontal Gaze Nystagmus

1. ProblemsWithTheInnerEarLabyrinth 2. Irrigating The Ears With Warm Or Cold Water Under Peculiar Weather Conditions 3. Influenza 4. StreptococcusInfection 5. Vertigo 6. Measles 7. Syphilis 8. Arteriosclerosis 9. MuscularDystrophy 10. Multiple Sclerosis 11. Korchaff’s Syndrome 12. Brain Hemorrhage 13. Epilepsy 14. Hypertension 15. Motion Sickness 16. Sunstroke 17. Eyestrain 18. Eye Muscle Fatigue 19. Glaucoma 20. Changes In Atmospheric Pressure 21. Consumption Of Excessive Amounts Of Caffeine 22. Excessive Exposure To Nicotine 23. Aspirin 24. Circadian Rhythms 25. Acute Trauma To The Head 26. Chronic Trauma To The Head 27. Some Prescription Drugs, Tranquilizers, Pain Medications, Anti-Convulsants 28. Barbiturates 29. Disorders Of The Vestibular Apparatus And Brain Stem 30. Cerebellum Dysfunction 31. Heredity 32. Diet 33. Toxins 34. Exposure To Solvents, PCB’s, Dry-Cleaning Fumes, Carbon Monoxide 35. Extreme Chilling 36. Lesions 37. Continuous Movement Of The Visual Field Past The Eyes 38. Antihistamine Use

See Shultz v. State, 664 A.2d 60, 77 (Md. App. 1995) citing State v. Witte; State v. Clark, State v. Superior Court, and Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney’s Textbook of Medicine § § 84.63 and 84.64 (1990).

The Walk and Turn (W&T) consists of taking 9 steps on a straight line with arms down while counting out loud taking a small series or steps to turn around and taking 9 steps back.  Sounds simple but wait…there is no time limit on the instructional phase and at the beginning of the test the subject will be told to stand with one foot in front of the other so that they are touching.  Elements such as the wind, rain and temperature affect this test but are not disqualifiers to take the test.  Tiredness and nervousness can have huge effects on the test.  The W&T test is 68% reliable or wrong about 1/3 of the time. Your results will be compared to test subjects who were most likely in a gym somewhere in the middle of the day on a flat surface with no wind or rain and who do not fear arrest. The eight clues on the W&T are:  1. Cannot keep balance during instructions or breaks starting position, 2. Subject starts before instructed, 3. Stops while walking, 4. Does not touch heel-to-toe, 5. Steps off line 6. Uses arms for balance, 7. Loses balance on turn or turns incorrectly, and 8. Incorrect number of steps.

The One Leg Stand (OLS) tests involves the subject lifting one leg approximately six inches off the ground and counting to 30 with arms down while looking at the lifted foot without hopping. The four clues for the OLS are 1. Sways while balancing, 2. Using arms for balance, 3. Hopping and 4. Putting foot down. Like the W&T the OLS is not disqualified for rain, wind or temperature.  Nervousness and tiredness affect this test.  Being able to see is horizon has a major impact on balance.  Consider a slanted room at a fun house or carnival.  Trying to balance on one leg with eyes closed or looking down at a subject’s foot is difficult for any person and makes this test dramatically harder.  The OLS is 65% reliable or wrong around 1/3 of the time.

A major difference between alcohol related offenses and other offenses in the Texas Penal Code is that for Class B Misdemeanors and higher the legislature has made it so that deferred sentencing is not available option.  This means that if placed on any type of probation it is a conviction that will never come off someone’s record without a pardon.  Also, since 2003 any DWI conviction carries with it a drivers license surcharge of $1000-$2000 per year for the next three years.  DWI first offense is a Class B Misdemeanor, DWI 2nd offense is a Class A Misdemeanor and DWI 3rd offense is a Class III Felony. 

TEXAS ALCOHOL LAWS

Sec. 49.04.  DRIVING WHILE INTOXICATED.  (a)  A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b)  Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c)  If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

Sec. 49.02.  PUBLIC INTOXICATION.  (a)  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.
(a-1)  For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.
(b)  It is a defense to prosecution under this section that 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.
(c)  Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(d)  An offense under this section is not a lesser included offense under Section 49.04.
(e)  An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies. 

Sec. 49.031.  POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE.  (a)  In this section:
(1)  "Open container" means 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.
(2)  "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle.  The term does not include:
(A)  a glove compartment or similar storage container that is locked;
(B)  the trunk of a vehicle;  or
(C)  the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
(3)  "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel.  The term includes the right-of-way of a public highway.
(b)  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.  Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c)  It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
(1)  the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine;  or
(2)  the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.
(d)  An offense under this section is a Class C misdemeanor.
(e)  A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.  If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.

Sec.  49.045.  DRIVING WHILE INTOXICATED WITH CHILD PASSENGER.  (a)  A person commits an offense if:
(1)  the person is intoxicated while operating a motor vehicle in a public place;  and
(2)  the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
(b)  An offense under this section is a state jail felony.

Sec.  49.05.  FLYING WHILE INTOXICATED.  (a)  A person commits an offense if the person is intoxicated while operating an aircraft.
(b)  Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.


Sec.  49.06.  BOATING WHILE INTOXICATED.  (a)  A person commits an offense if the person is intoxicated while operating a watercraft.
(b)  Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours. 


Sec.  49.065.  ASSEMBLING OR OPERATING AN AMUSEMENT RIDE WHILE INTOXICATED.  (a)  A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.
(b)  Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.
(c)  If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days.


Sec.  49.07.  INTOXICATION ASSAULT.  (a)  A person commits an offense if the person, by accident or mistake:
(1)  while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another;  or
(2)  as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.
(b)  In this section, "serious bodily injury" means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
(c)  Except as provided by Section 49.09, an offense under this section is a felony of the third degree.

Sec. 49.08.  INTOXICATION MANSLAUGHTER.  (a)  A person commits an offense if the person:
(1)  operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride;  and
(2)  is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.
(b)  Except as provided by Section 49.09, an offense under this section is a felony of the second degree.

Sec. 49.09.  ENHANCED OFFENSES AND PENALTIES.  (a)  Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
(b)  An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
(1)  one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08;  or
(2)  two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.
(b-1)  An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty.
(b-2)  An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of a person described by Subsection (b-1).
(b-3)  For the purposes of Subsection (b-1):
(1)  "Emergency medical services personnel" has the meaning assigned by Section 773.003, Health and Safety Code.
(2)  "Firefighter" means:
(A)  an individual employed by this state or by a political or legal subdivision of this state who is subject to certification by the Texas Commission on Fire Protection; or
(B)  a member of an organized volunteer fire-fighting unit that:
(i)  renders fire-fighting services without remuneration; and
(ii)  conducts a minimum of two drills each month, each at least two hours long.
(c)  For the purposes of this section:
(1)  "Offense relating to the operating of a motor vehicle while intoxicated" means:
(A)  an offense under Section 49.04 or 49.045;
(B)  an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;
(C)  an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;
(D)  an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;
(E)  an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle;  or
(F)  an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.
(2)  "Offense of operating an aircraft while intoxicated" means:
(A)  an offense under Section 49.05;
(B)  an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;
(C)  an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;
(D)  an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft;  or
(E)  an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.
(3)  "Offense of operating a watercraft while intoxicated" means:
(A)  an offense under Section 49.06;
(B)  an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;
(C)  an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;
(D)  an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft;  or
(E)  an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.
(4)  "Offense of operating or assembling an amusement ride while intoxicated" means:
(A)  an offense under Section 49.065;
(B)  an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride;  or
(C)  an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.
(d)  For the purposes of this section, a conviction for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.
(e)  Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
(f)  Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
(g)  A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.
(h)  This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed.  The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device.  The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date.  If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation.  The Department of Public Safety shall approve devices for use under this subsection.  Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval.  Failure to comply with an order entered under this subsection is punishable by contempt.  For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed.  To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.

Sec. 49.10.  NO DEFENSE.  In a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.

Sec. 49.11.  PROOF OF MENTAL STATE UNNECESSARY.  (a)  Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.
(b)  Subsection (a) does not apply to an offense under Section 49.031.

Sec. 49.12.  APPLICABILITY TO CERTAIN CONDUCT.  Sections 49.07 and 49.08 do not apply to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.


MISDEMEANOR PUNISHMENTS


Sec. 12.21.  CLASS A MISDEMEANOR.  An individual adjudged guilty of a Class A misdemeanor shall be punished by:
(1)  a fine not to exceed $4,000;
(2)  confinement in jail for a term not to exceed one year;  or
(3)  both such fine and confinement.

Sec. 12.22.  CLASS B MISDEMEANOR.  An individual adjudged guilty of a Class B misdemeanor shall be punished by:
(1)  a fine not to exceed $2,000;
(2)  confinement in jail for a term not to exceed 180 days;  or
(3)  both such fine and confinement.

Sec. 12.23.  CLASS C MISDEMEANOR.  An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.

 

FELONY PUNISHMENTS

Sec. 12.31.  CAPITAL FELONY.  (a)  An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole or by death.  An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:
(1)  life, if the individual's case was transferred to the court under Section 54.02, Family Code; or
(2)  life without parole.
(b)  In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony.  In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that:
(1)  a sentence of life imprisonment is mandatory on conviction of the capital felony, if the case was transferred to the court under Section 54.02, Family Code; or
(2)  a sentence of life imprisonment without parole is mandatory on conviction of the capital felony.

Sec. 12.32.  FIRST DEGREE FELONY PUNISHMENT.  (a)  An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.
(b)  In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.

Sec. 12.33.  SECOND DEGREE FELONY PUNISHMENT.  (a)  An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.
(b)  In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.

Sec. 12.34.  THIRD DEGREE FELONY PUNISHMENT.  (a)  An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.
(b)  In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.

Sec. 12.35.  STATE JAIL FELONY PUNISHMENT.  (a)  Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.
(b)  In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.
(c)  An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:
(1)  a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or
(2)  the individual has previously been finally convicted of any felony:
(A)  under Section 21.02 or listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure; or
(B)  for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure.

 

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